Compulsory Chemical Tests
February 13, 2008
We have yet to review compulsory chemical tests in the Bulletin. This unique technique through which evidence is acquired is essential and expeditious. It is perhaps these two elements, importance and speed, which mandates that both bench and bar have an intimate familiarity with the rather convoluted workings of this highly complex statute. Since the need for an understanding of this procedure often arises under the heat of a 2:15 a.m. accident, it may be worthwhile to take a few minutes to review this process before one has the actual need.
To begin with, one must recognize that there is no Federal constitutional requirement that blood be withdrawn pursuant to either consent of a warrant. In Schmerber v. California (1966) 384 US 757, 16 L Ed 2d 908, 86 S Ct 1826, the Court was presented with a conscious motorist who was arrested at a hospital where he was being treated for injuries sustained in an alcohol related automobile accident. The motorist refused to give his consent, and the arresting officer ordered a blood sample forcibly drawn from the motorist. That sample was eventually admitted into evidence at his trial and a conviction for driving under the influence resulted. On appeal, the motorist maintained that the sample was drawn in violation of his 4th, 5th and 6th amendment rights. In particular, he claimed that his 4th amendment rights were abridged as a result of the failure of the State to secure his consent or a warrant authorizing seizure of his blood.
Commencing with the proposition that the 4th amendment expressly provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ., the Court found that while such searches would not be permitted upon the mere possibility that incriminating evidence would be found, the probability that incriminating evidence would be found within the motorist's blood based upon the presence of other factors indicating intoxication served to adequately remove an absolute 4th amendment bar from such searches. Acknowledging that even the probability that incriminating evidence would be found would not support a warrantless search of a home or office, Justice Brennan turned to the unique nature of the crime and the evescent nature of alcohol. Such factors tipped a constitutional balancing analysis in favor of the seizure.
Would not any blood seizure, irrespective of whether a warrant had been issued, suffice? In New York it will not. In a trilogy of cases known collectively as People v. Moselle (1982) 57 NY2d 97, 454 NYS2d 292, the Court of Appeals examined three convictions, each of which asserted a particular violation of the procedures contained in former Vehicle and Traffic Law ' 1194. While the fact patterns were complex and several different issues were raised, at the core was whether, in the absence both of statutory authority and of a court order, a blood sample may be taken from a person without his consent for use in a subsequent criminal prosecution. Relying on Matter of Abe A., (1982) 56 NY2d 288, 452 NYS2d 6, the Court found that in the absence of an Order authorizing the blood to be drawn, the samples were improperly taken.
A request to initiate court ordered compulsory chemical testing requires, as a threshold, that a police officer or a district attorney set forth reasonable cause to believe that:
(1) such person was the operator of a motor vehicle and in the course of such operation a person other than the operator was killed or suffered serious physical injury as defined in section 10.00 of the penal law; and
(2) a. either such person operated the vehicle in violation of any subdivision of section eleven hundred ninety‑two of this article, or b. a breath test administered by a police officer in accordance with paragraph (b) of subdivision one of this section indicates that alcohol has been consumed by such person; and
(3) such person has been placed under lawful arrest; and
(4) such person has refused to submit to a chemical test or any portion thereof, requested in accordance with the provisions of paragraph (a) of subdivision two of this section or is unable to give consent to such a test.
Prosecutors should not overlook the Legislature's rather liberal use of the conjunctive, and. The statutory requirements for the issuance of a compulsory chemical test Order will not be met unless there is a showing of operation, violation of any subdivision of Vehicle and Traffic Law ' 1192, a lawful arrest and that the motorist has refused to submit. These requirements should be written down and carried by assistant district attorney who will have the duty of making the application. Essential to the mechanics of ' 1194(3) is that it is not a test of first choice, for even if the injury and reasonable cause or field test requirements have been met, it is still necessary that the motorist is placed under a lawful arrest and either refuse or be unable to give consent to a test offered pursuant to ' 1194(2). In the event that such arrest and refusal has not occurred, the warrant should not be issued. Will the requirement for an arrest mean that an officer must go through the futility of formally arresting an unconscious motorist? Apparently not. In People v. Ladd (1996) 89 NY2d 893, the Court of Appeals recently held that given the unconscious state of the defendant, the Court was not required to go through the formalities of an arrest.
An Oral Warrant?
While the concept of an oral warrant may be distasteful to some, Vehicle and Traffic Law ' 1194(3) does contain some of the indicia of such a warrant. Whereas its' Penal Law cousin, CPL ' 690.40(3), requires that:
When a judge determines to issue a search warrant based upon an oral application, the applicant therefor shall prepare the warrant in accordance with section 690.45 and shall read it, verbatim, to the judge.
(emphasis supplied herein).
no such requirement is imposed by Vehicle and Traffic Law ' 1194(3) which provides:
* * * When a judge or justice determines to issue an order to compel submission to a chemical test based on an oral application, the applicant therefor shall prepare the order in accordance with the instructions of the judge or justice. In all cases the order shall include the name of the issuing judge or justice, the name of the applicant, and the date and time it was issued. It must be signed by the judge or justice if issued in person or by the applicant if issued orally.
The differences, while subtle, apparently do not preclude later preparation and signing. This interpretation is drawn from the fact that Vehicle and Traffic Law ' 1194(3), unlike CPL ' 690.40(3), does not require that the warrant be read verbatim to the judge. The absence of such a directive compels the conclusion that immediate preparation is not required. Why might this be? A conventional search warrant under Criminal Procedure Law Article 690 is an exceedingly complex affair requiring a description of persons, places, times and the particular items to be seized. A blood seizure order encounters no such problems. Essentially a yes or no affair, the scope of the search is implied by operation of law. Literally all that is needed is a document memorializing the judicial authority.
In People v. Scalzo (1988) 139 Misc 2d 539, 529 NYS2d 236, revd (1991, 2d Dept) 176 AD2d 363, 574 NYS2d 782, the defendant contended that the results of a compulsory blood alcohol test should be suppressed as a result of the failure of the authorities to make a blood seizure order available to the defendant or the personnel performing the chemical test. Rejecting this argument, the court found great significance in the fact that Vehicle and Traffic Law ' 1194‑a, the predecessor to present ' 1194(3) does not require such a presentation. Noting that the Vehicle and Traffic provision is in clear contrast to Criminal Procedure Law ' 690.50(1) which requires that in certain situations a copy of the warrant be displayed, the Court felt this omission was not without consequence:
That provision of CPL ' 690.50 is a logical requirement in view of the fact that such search warrant is limited in scope as to where and to what the issuing Judge has ordered and can be for a number of different places (e.g., house, garage, room, apartment, etc.) and for a number of different items (e.g., narcotics, stolen property, forged instruments, weapons, etc.). However, under ' 1194‑a of the Vehicle and Traffic Law, the court order issued thereunder is for one purpose only, the taking of blood. In the opinion of this court, ' 1194‑a of the Vehicle and Traffic Law was enacted to ensure speed in a situation where time is of the utmost essence and to promptly take blood before the alcohol level has deteriorated and the crucial evidence is lost.
In affirming this aspect of the lower court's order, the Second Department found no merit to the defendant's contention inasmuch as [t]he controlling provision of the statute, Vehicle and Traffic Law ' 1194‑a [now Vehicle and Traffic Law ' 1194(3)], does not contain any such requirement (id., at 364).
While case law can be found which indicates that a warrant must be prepared and displayed (see, People v. Walsh (1988) 137 Misc 2d 1073, 523 NYS2d 752; and see, People v. Armstrong (1987) 134 Misc 2d 800, 512 NYS2d 323), the problem with these cases generally, and Armstrong in particular, is that they choose to view the issuance of a blood seizure order in a vacuum. Surely the issuing magistrate will have made a contemporaneous record of the transaction, and indeed, transcription or verbatim recording are required. Such notes and recording will set forth the time the application was made as well as the time the application was granted. At the other end, the hospital records will clearly denote the time of the procedure and the individual who withdrew the blood. Recognizing these realities, it seems hard to imagine a scenario where an order post dates acquisition of the sample. Additionally, there remains the fact that nowhere in the statute is there created such a requirement. In People v. Whelan (1991, 2d Dept) 165 AD2d 313, 567 NYS2d 817, app den 78 NY2d 927, 573 NYS2d 480, the Second Department, in so holding, rejected Armstrong in favor of Scalzo and refused to suppress as a result of the failure to present a written warrant:
We find the reasoning of People v Scalzo, which rejected the argument advanced by the defendant herein, far more persuasive than that in People v Armstrong and hold that there was no requirement in this case to show the court order to the defendant or medical personnel before blood was extracted.
Id. at 324.
Of interest in the statute is that in setting out the definition of reasonable cause, the Legislature did not appear to be content with simply incorporating the definition contained at CPL ' 70.10(2). Instead, Vehicle and Traffic Law ' 1194(3)(c) contains its' own definition to be applied in the instance of a compulsory chemical test:
For the purpose of this subdivision reasonable cause shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of section eleven hundred ninety‑two of this article. Such circumstances may include, but are not limited to: evidence that the operator was operating a motor vehicle in violation of any provision of this article or any other moving violation at the time of the incident; any visible indication of alcohol or drug consumption or impairment by the operator; the existence of an open container containing an alcoholic beverage in or around the vehicle driven by the operator; any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle while impaired by the consumption of alcohol or drugs or intoxicated at the time of the incident.
Reference to the totality of the circumstances and the time of enactment, in our opinion, suggests that the Legislature's intent may have been to free this search warrant application procedure from the reliability and basis requirements commonly referred to as the Aguilar‑Spinelli test and substitute instead the more liberal Fourth Amendment interpretation afforded by the 1983 decision of the United States Supreme Court in Illinois v. Gates (1983) 462 US 213, 76 L Ed 2d 527, 103 S Ct 2317, reh den 463 US 1237, 77 L Ed 2d 1453, 104 S Ct 33. Gates, however, was subsequently rejected in New York as the basis upon which a warrant can be issued (see, People v. Griminger (1988) 71 NY2d 635, 529 NYS2d 55, 524 NE2d 409). Is Gates the test? Probably not, but the issue is not as clear as we would like it to be. In People v. Putsis (July 24, 1995, 2nd Dept) 217 AD2d 670, 630 NYS2d 86, the Second Department recently found that [b]ased on the totality of the circumstances as related to the court at the time the application for the warrant was made . . . there was probable cause to justify issuance of the warrant (emphasis supplied herein).
In determining whether or not a warrant should be issued, Vehicle and Traffic Law ' 1192(3) initially requires a determination that there has occurred a motor vehicle accident in which an individual other than the driver thereof has been killed or suffered serious physical injury as that term is further defined by Penal Law ' 10.00. Having achieved this threshold, the police officer applicant must have reasonable cause to believe that the driver was operating in violation of any subdivision of ' 1192 or that a preliminary breath test has shown the consumption of alcohol by the motorist. While the ready accessibility of the operator should usually render the reasonable cause the product of non‑hearsay observations, in the event that they are not, the transcript of the application should be carefully perused to determine whether or not the information supplied satisfied the familiar two‑prong test. As recently noted by the Court of Appeals:
The basis of the informant's knowledge must be demonstrated because the information related by an informant, even a reliable one, is of little probative value if he does not have knowledge of the events he describes (People v. Rodriguez, supra, 52 NY2d at 491). Conversely, no matter how solid his basis of knowledge, the information will not support a finding of probable cause unless it is reliable. Since police officers may not arrest a person on mere suspicion or rumor, they likewise may not arrest a suspect on the basis of an informant's tip, perhaps born of suspicion or rumor or intentional fabrication.
People v. Johnson (1985) 66 NY2d 398, 497 NYS2d 618, 488 NE2d 439.
Totality of the circumstances or not, case law has shown that failure to have personal knowledge of the required threshold can have devastating consequences. In People v. Walsh (1988) 137 Misc 2d 1073, 523 NYS2d 752, police officers investigating a serious automobile accident contacted the assistant district attorney at his home and informed him of the status of their investigation at that point. From his home the assistant district attorney phoned a County Court Judge who thereupon proceeded to grant an application to withdraw a sample of the operator's blood. At no time did the investigating officers or others with personal knowledge of the facts give sworn testimony prior to the granting of the court ordered blood test, nor did the Judge have contact with anyone other than the assistant district attorney.
Suppressing the use of the results at trial, the trial court found the hearsay character of the statements to be dispositive:
In this case the Assistant District Attorney had no personal knowledge of facts to support the application for the court‑ordered blood test. Those with personal knowledge, which they apparently provided to the Assistant District Attorney, not only gave no sworn allegations of fact in support of the application, but they gave no statement whatever to the Judge considering the application. Therefore, section 1194‑a (3) (b) and (c) were not complied with, in that they require the court to place under oath the applicant and any other person providing information in support of the application. The applicant must make specific allegations of fact. The statute makes no provision for an application based on hearsay, which in this case would amount to an application based on solely hearsay information provided by the Assistant District Attorney.
Id. at 1074.
The mere presence of hearsay, however, will not necessarily destroy an application if the hearsay which is provided will surpass the Aguilar-Spinelli test. In People v. Whelan (1991, 2d Dept) 165 AD2d 313, 567 NYS2d 817, app den 78 NY2d 927, 573 NYS2d 480, 577 NE2d 1072, the Second Department had an opportunity to extensively discuss the role of hearsay, double hearsay, and the two‑pronged test of Aguilar‑Spinelli in the context of an oral application for a blood seizure order:
[I]t is clear that the application consisted entirely of hearsay and double hearsay. However, this fact does not render it defective. Search warrants based on hearsay information have long been held to be valid where there is a substantial basis for crediting the hearsay statement. The procedure for evaluating the hearsay statements of informants involves the two‑pronged Aguilar‑Spinelli test . . . . This court has recently held that probable cause to arrest may be established by double hearsay as long as each informant in the chain of narration passes the Aguilar‑Spinelli test. By parity of reasoning, an application under Vehicle and Traffic Law ' 1194(3) based on double hearsay would be valid if each informant passes the Aguilar‑Spinelli test.
Id. at 321 [internal citations omitted].
The availability of hearsay notwithstanding, however, the failure to specify the basis of the hearsay in Whelan proved fatal:
[T]here is merit to the defendant's contention that the application herein was defective in that it failed to disclose that it consisted of hearsay and further failed to state the sources of the hearsay statements. In enacting the provisions of Vehicle and Traffic Law ' 1194(3), the Legislature was continuing the fundamental policy of having the adequacy of applications for search warrants, and orders affecting unarrested suspects passed upon by a neutral, detached Judge. An essential element in each of these procedures is that a Judge, rather than a prosecutor or a police officer, decides whether or not the documents submitted are sufficient to support the requested relief. By failing to set forth the sources of his hearsay information, Assistant District Attorney Grennan deprived the County Court of the opportunity to make the determinations required under the statute.
Id. at 321‑322 [internal citations omitted].
Attacking a Warrant - Truth or Veracity
In Franks v. Delaware (1978) 438 US 154, 57 L Ed 2d 667, 98 S Ct 2674, the United States Supreme Court examined the predicament where it was claimed that a warrant was issued based upon reckless or worse yet intentional misrepresentations of the facts. In Franks, the petitioner sought to prove that despite their sworn character, allegations concerning the source of the allegations utilized in securing the warrant were false. The state court refused the proffer, and the Delaware high court held that the defendant was not allowed to go behind the warrant and litigate questions such as the veracity of the information upon which the warrant was issued.
On appeal, addressing what it characterized as an important and longstanding issue of Fourth Amendment law the Supreme Court reversed, holding that:
in certain circumstances, a challenge to a warrant's veracity must be permitted[. W]e derive our ground from language of the Warrant Clause itself, which surely takes the affiant's good faith as its premise: [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . .
Finding that a flat ban on impeachment of veracity could denude the probable‑cause requirement of all real meaning, (438 US at 168) the Court quoted Judge Frankel, in United States v. Halsey, 257 F Supp 1002, 1005 (SDNY 1966) and concluded that [W]hen the Fourth Amendment demands a factual showing sufficient to comprise probable cause, the obvious assumption is that there will be a truthful showing (438 US at 164-165).
Nevertheless, a mere allegation on the part of the defendant that the statement is either reckless or intentionally false will fail to carry the day. Because of the presumption of validity which is owed the warrant, the defendant, to fall within the parameters of the Franks exception, must set forth:
allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.
Additionally, the exception which was carved out in Franks applies only to governmental affiants, not to any non-governmental informant. If the requirements are met, and if when material that is the subject of the alleged falsity or reckless disregard is set to one side there remains sufficient remaining probable cause, a hearing should be denied. Only if the application was insufficient after redaction of the reckless or false material then a hearing should be granted (Franks at 438 US 171 - 172).
While Franks permitted such an application as a matter of Constitutional Law, somewhat earlier, in People v. Alfinito (1965) 16 N Y 2d 181, 264 NYS2d 243, the Court of Appeals held that in like circumstances, former Code of Criminal Procedure '813-c required such a hearing, a requirement that has naturally followed the CPL. In the event that a hearing is held, the defendant shall bear the burden of proof on this issue (see, People v. Alfinito, supra; People v. Tambe (1988) 71 NY2d 492, 527 NYS2d 372).
When the seizure at issue is an oral blood application, precedent exists to support the argument that given Franks allegations, a hearing should be held. In People v. Putsis, supra, the defendant was involved in a fatal accident. By motion she claimed that the allegations leading to a compulsory chemical test were reckless or intentionally false. At a hearing held on the motion, it was developed that the court which issued the warrant was not advised that, initially, the defendant's companion had been arrested based on his claim that he had been driving. Even so, despite such fact, which apparently the defendant maintained went to the reasonableness of the officer's conclusions, the hearing court concluded that this fact was immaterial, a decision in which the Second Department concurred.
Vehicle and Traffic Law ' 1194(3) creates a procedure which is both unique and somewhat at odds with established methods.
Upon initiating a telephonic connection and having been informed of the purpose of the communication, the court shall place the applicant and any other individual with knowledge under oath. At this point, the court also incurs the simultaneous obligation of either activating recording apparatus, causing transcription by means of verbatim stenographic notes or commencing to take verbatim longhand notes. The applicant, either a police officer or district attorney, must then inform the court that the person from whom the sample is sought was the operator of a motor vehicle and that in the course of such operation a person, other than the operator, was killed or seriously injured and that based upon the totality of circumstances there is reasonable cause to believe that such person was operating a motor vehicle in violation of any subdivision of Vehicle and Traffic Law section eleven hundred ninety‑two. The applicant must further set forth that after being placed under arrest the operator refused to submit to a chemical test or any portion thereof or was unconscious or otherwise incapable of consent.
Under the auspices of the above described totality of the circumstances, the applicant should provide, by way of suggestion, but not limitation:
evidence that the operator was operating a motor vehicle in violation of any provision of this article or any other moving violation at the time of the incident; any visible indication of alcohol or drug consumption or impairment by the operator; the existence of an open container containing an alcoholic beverage in or around the vehicle driven by the operator; any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle while impaired by the consumption of alcohol or drugs or intoxicated at the time of the incident.
In the event the Court determines that issuance of the warrant is appropriate, it shall so instruct the applicant who then incurs the statutory duty of preparing the warrant which shall include the name of the issuing judge or justice, the name of the applicant, as well as the date and time it was issued. A signature is required, however, it need only be that of the applicant if the warrant is not issued upon a personal appearance.
Applicability of Two Hour Requirement
Unlike Vehicle and Traffic Law '1194(2)(a)(2), Vehicle and Traffic Law '1194(3) fails to contain any requirement that the test be administered within a two hour period. This lack of any temporal requirement in the statute has proven dispositive in resolving potential two hour challenges.
In People v. McGrath (1988, 2d Dept) 135 App Div 2d 60, 524 NYS2d 214, affd, en banc, 73 NY2d 826, 537 NYS2d 480, the defendant was involved in a motor vehicle accident which occurred at approximately 7:00 p.m. Several people were seriously injured and the defendant was arrested at a hospital at approximately 8:15 p.m. where he was asked to consent to a blood test to determine his blood alcohol level. Following the defendant's refusal, the arresting officer began to telephone various Judges in order to obtain a court order for a blood test pursuant to present Vehicle and Traffic Law ' 1194(3). At 10:20 p.m. an application for a compulsory chemical test was granted, and at 10:35 p.m. a test was performed which indicated a blood alcohol level of .23 of 1%.
Upon the defendant's motion to dismiss that count of the indictment based on the results of the blood test, the County Court found the test to be inadmissible inasmuch as it was taken more than two hours after arrest. The Appellate Division thereafter reversed holding:
. . . Nothing in the unambiguous language of [present ' 1194(3) indicates that the Legislature intended to impose a specific time limitation on the performance of court‑ordered chemical tests. The omission of such a restriction reflects a rational legislative determination that it was unnecessary. It is reasonable to assume that the intervention of an impartial Magistrate in the issuance of an order for a chemical test insures that the test will not be administered at a time so remote that the results are irrelevant to the central question of the driver's blood alcohol count at the time of the automobile accident. * * * The elapsed time between the incident and the request for a court order is one of the circumstances which a court must consider before issuing an order. . . . A claim that delay in the administering of the test following the issuance of the court order negates the finding of reasonable cause is . . . reviewable. The omission of a specific time limitation for performance of court‑ordered chemical tests also reflects a reasonable legislative concern with the practicality of applying the statute. The absence of an absolute time limit permits the flexibility which is sometimes necessary to obtain a court order during hours when court is not in session.
Id. at 63
On Appeal, the Court of Appeals affirmed upon the decision of the Appellate Division.
While only dicta, in People v. Atkins (1995) 85 NY2d 1007, 630 NYS2d 965, the Court reaffirmed the stance taken in McGrath by noting the absence of any requirement in the statute:
Defendant's contention that the two hour limitation in section 1194(2)(a) was intended by the Legislature to be a absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver's consent, is unpersuasive. This argument is completely undermined by the lack of a corresponding time limit for court‑ordered chemical testing under section 1194(3).
Pursuant to Vehicle and Traffic Law ' 1194(3)[d](3), upon being advised that an application for a blood seizure order is being made, the obligation arises to immediately commence the recording of the oaths and all subsequent communications. This recordation may take the form of an audio recording, a verbatim stenographic record or verbatim long hand notes. In the event that the first two are employed, the issuing judge has the obligation to have the record transcribed, certified to the accuracy of the transcription, and file the original record and transcription with the court within seventy‑two hours of the issuance of the order. In the event that the proceeding is transcribed in longhand, the judge shall subscribe a copy and file it with the court within twenty‑four hours of the issuance of the order.
As used in ' 1194(3)[d](3), interposition of the terms judge and court is not without significance since, in all likelihood, the issuing judge will not preside upon a trial of the matter, and indeed the charges may not even be filed in his or her court. Filing, therefore, means that the transcript shall, within seventy‑two hours, be filed with the clerk of the court in which he or she presides.
While ' 1194(3)[d](3) places the duty of transcribing and filing the record of the proceedings upon the shoulders of the issuing judge, unlitigated is whether the applicant or the District Attorney's office may undertake transcription and filing. In reality, what will undoubtedly occur is that the applicant, upon the order of the court, will have the tape or stenographic record transcribed, after which the transcription will be presented to the judge for his or her certification and filing.
While in the larger counties such a seemingly simple task may require herculean efforts, elsewhere, the exercise of due diligence should suffice to enable statutory compliance. Difficulties can enure, however, in those instances where the transcript is either lost, inaudible, or not timely filed.
In People v. Whelan (1991, 2d Dept) 165 App Div 2d 313, 567 NYS2d 817, app den 78 NY2d 927, 573 NYS2d 480, a seizure order was issued at 10:58 a.m. on March 12, 1988. The transcript was certified by the issuing judge and filed with the court at 1:29 p.m. on March 15, 1988, or seventy‑four hours and thirty‑one minutes after the issuance of the order. In finding that sufficient compliance was had, the Second Department held:
It is obvious that the legislative intent underlying the foregoing statutory provision is twofold: (1) to ensure that the sworn testimony of the applicant and any supporting witnesses is recorded, thereby assuring the regularity of the application process, and (2) to preserve the application for appellate review. It is equally obvious that both of these purposes have been fulfilled in this case, so that substantial rather than literal compliance with the statutory standards herein is sufficient.
A slightly different problem was presented by People v. Scalzo (1988) 139 Misc 2d 539, 529 NYS2d 236, revd on other grounds (App Div, 2d Dept) 574 NYS2d 782. In Scalzo, portions of the application were incapable of transcription due to the inaudibility of certain segments of the tape. Noting that no audibility hearing was held, the Court nonetheless found that those portions of the recording believed to be inaudible [did] not constitute a material defect [and did] not in any way demonstrate prejudice to the defendant, or lead to a conclusion that his constitutional rights were violated (id. at 545).
Presenting a more troublesome situation, in People v. Stratis (1987) 137 Misc 2d 661, 520 NYS2d 904, later proceeding (2d Dept) 148 AD2d 557, 540 NYS2d 186, app den 74 NY2d 747, 545 NYS2d 122, 543 NE2d 765, a seizure order was authorized by the judge at 6:25 a.m. on February 13th. At approximately 3:00 p.m. the applicant assistant district attorney learned that the voices of the officer and judge were largely unintelligible. He thereupon prepared typewritten affirmations for himself, the judge, and the officer, which ostensibly set forth the substance of the telephone conversation. At 3:00 a.m. on February 14th, the assistant district attorney presented the typewritten affidavits as well as a handwritten affidavit and order from which the officer had earlier read to the judge for his signature and certification. These documents were thereafter filed with the court.
Moving to suppress, the defendant alleged that the contents of the affidavits which were ultimately filed did not meet the transcription and filing requirements of the statute. Finding that the problem of inaudibility was the result of an inadvertent mechanical breakdown, the court noted that the defendant established no real prejudice based on the lack of a transcription. While the typewritten affidavit which the assistant district attorney prepared for the officer's signature failed to contain a reference to reading the warrant found in the handwritten version, the court held that the fact that such an order was prepared and read obviated the need for reference in the earlier affidavit.
A contrary conclusion was reached in People v. White (1986) 133 Misc 2d 386, 506 NYS2d 815. In White, a three‑way conversation involving the officer, the assistant district attorney, and the judge, was established and stenographically recorded. Although the transcript of the conversation was subscribed and filed, at no point was a written warrant prepared and filed as otherwise required. Citing People v. Crandall (1985, 3d Dept) 108 App Div 2d 413, 489 NYS2d 614, appeal after remand (3d Dept) 120 App Div 2d 994, 501 NYS2d 547, affd 69 NY2d 459, 515 NYS2d 745, for the proposition that present Vehicle and Traffic Law ' 1194(3), like its Criminal Procedure Law counterpart were intended only to authorize oral applications, not verbal search warrants, the court felt that such an interpretation was mandated by a long, unbroken common‑law tradition that a judicial fiat must be in writing before it can impinge upon important rights. Finding that in either enactment the Legislature had not intended to take that drastic step, the court refused to do so under the auspices of substantial compliance.
Requirement of Oath
While initially strict adherence to the requirement set forth in ' 1194(3)[d](2) may seem trivial, it must be remembered that non‑compliance with this section cuts to the quick of the command found in both Federal and State Constitutions that no warrants shall issue, but upon probable cause, supported by oath or affirmation . . .
People v. Walsh (1988) 137 Misc 2d 1073, 523 NYS2d 752, while suppressing primarily upon the fact that the application was largely hearsay, nonetheless took note of the fact that the applicant had not been placed under oath. Likewise in People v. Dunn (1986, 3d Dept) 117 App Div 2d 863, 498 NYS2d 577, an application that contained no proof that it had been sworn was rejected as the basis for the issuance of a blood seizure order.
Perhaps coming as close as should be constitutionally permitted, People v. Rollins (1986, 3d Dept) 118 App Div 2d 949, 499 NYS2d 817, found a blood seizure order properly given upon the transcript of the application which showed that the trooper began his request by stating being duly sworn, notwithstanding that the trooper was not sworn prior to the making of an application.
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