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Court of Appeals Addresses Two Hour Rule

February 13, 2008

In People v. Atkins, (June 15, 1995, No. 134) CNY2dC, CNYS2dC, CNE2d C, 1995 N.Y. LEXIS 1128, the Court of Appeals addressed for the first time what is unquestionably one of the most hotly debated issues in the area of alcohol influenced operating offenses. For almost decade, trial level courts have wrestled with whether a chemical test need be administered within two hours of arrest when the defendant voluntarily consents to submit (see, People v. Mills (1986, 2nd Dept) 124 AD2d 600, 507 NYS2d 743; People v Dillin, (1991) 150 Misc2d 311, 567 NYS2d 991; People v Abel, (1990, 3rd Dept) 166 AD2d 841, 563 NYS2d 531; People v. Bezer, NYLJ, 11/8/91, p. 25, col. 3; People v. Byington, NYLJ, 7/16/89, p. 21, col 1; People v. Flora, NYLJ 6/23/92 p. 22, col. 6; People v. Frazier, NYLJ 7/9/93, p. 24, col. 1; People v Morales, (1994, NYC Crim Ct) 161 Misc2d 128, 611 NYS2d 980; compare, People v. Keane, (1980, 3rd Dept) 76 AD2d 963, 428 NYS2d 972; People v. Ali, (1991, NYC Crim Ct) 151 Misc2d 742, 573 NYS2d 575; People v. Edwards, NYLJ 5/12/92 p. 26, col. 6; and see, 1 NY DWI Bulletin Nos. 10 - 11).

On June 13, 1995, the Court of Appeals confronted the issue, and held that the two-hour rule does not apply when the motorist voluntarily consents to a chemical test. In People v. Atkins, (June 13, 1995, No. 134, C NY2d C, C NYS2d C, 1995 N.Y. LEXIS 1128, the Defendant was arrested and charged with operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law '1192[4]) after he was found behind the wheel of a vehicle at the scene of an accident. Within two hours of his arrest, he consented to having a specimen of his blood withdrawn to determine its drug content. The sample, an analysis of which disclosed the presence of phencyclidine, or PCP, was not taken until two hours and twenty eight minutes after his arrest.

Citing the two-hour rule, the Defendant moved to suppress the results of the test upon a brief stipulated account of the facts surrounding the administration of the test. The application was denied, and the denial was affirmed by the Appellate Term (People v. Atkins, NYLJ, June 24, 1994, p. 25, col. 1) which found the two-hour rule created by '1194(2) to be inapplicable inasmuch as the Defendant had voluntarily consented to the test.

On September 23, 1994, the Court of Appeals granted leave and, in a memorandum opinion, it has affirmed the Appellate Term. Eschewing reams of decisions which meticulously analyze the historical rationale for the rule, the majority relied primarily upon People v. Ward, (1954) 307 NY 73, 120 NE2d 21. In Ward, the defendant maintained that a predecessor to Vehicle and Traffic Law '1194, former Vehicle and Traffic Law '71-a, required that a motorist be advised of the right to refuse a chemical test and his privilege to an independent test. In affirming the conviction, the Court held that the requirement for statutory refusal warnings has no application where . . . the defendant voluntarily submitted to the test and there is no claim or hint of coercion. Drawing upon the forty-one year old precedent, the Atkins Court, took note that in affirming Ward's conviction it had observed that the deemed consent statute was concerned, not with those who consented to take the test, but with those who were required to submit.  Thus, the Court found it difficult to perceive any necessity for the protections embodied in [the deemed consent statute] where the driver freely volunteers to take the test and have his blood analyzed.

Once the Court recognized that Ward was controlling, resolution became simple. Since the defendant apparently consented to the test, it followed that the two hour limitation contained in Vehicle and Traffic Law '1194(2)(a) has no application here where, as found by Appellate Term, defendant expressly and voluntarily consented to administration of the blood test.

Nor was the Court persuaded by the argument that the two-hour rule is a rule of relevance which was intended to govern all instances of chemical testing (see, People v. Sesman, (1987) 137 Misc2d 676, 521 NYS2d 626):

Defendant's contention that the two hour limitation in '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) (see, People v. McGrath, 135 AD2d 60, affd on opinion below, 73 NY2d 826) or the additional test which the driver must be permitted to have administered by a physician of his or her choosing under section 1194(4)(b) (see, People v. Finnegan, 85 NY2d 53, 59). (Atkins, supra).


Of interest, for reasons that we will address in a moment, is Judge Simons' searing dissent. Simons was on the Fourth Department panel which held, in People v. Brol, (1991, 4th Dept) 81 AD2d 739, 438 NYS2d 424, that evidence of a refusal is inadmissible unless obtained within two hours of the arrest. He therefore launched his view of the two-hour rule by turning to the 1941 enactment of the provision which he contended supported the view that the rule is one of relevance directed toward ensuring that evidence retrieved as a result of such tests is a reliable indication of the motorist's blood alcohol content. Because the human body rapidly metabolizes alcohol, wrote Simons, the two‑hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant's blood alcohol level at the time of operation of the vehicle. Noting that when the rule was adopted both the time of arrest and time of operation were debated as the statutory trigger, Simons observed that the two‑hour limit is, to some extent, a compromise . . . that provided a bright‑line evidentiary rule easily applicable by law enforcement and by the courts.

Of additional significance to Simons was the fact that the two-hour rule was created some twelve years prior to New York's first implied consent provision.

The provision enacting a two‑hour time limit is thus quite distinct, both in its history and its purpose, from the statutory provisions embodying the concept of deemed consent. * * * The consent provision was included to permit a driver who had refused to take the test to subsequently agree to it and avoid suspension, once properly informed of his rights and obligations.


These distinct statutory roots and placement of the rule in an entirely different section of the Vehicle and Traffic Law from the deemed consent provisions dissuaded Simons from applying People v. Ward, supra.

[A]t the time of our decision in Ward, the two‑hour limit was contained in an entirely different section of the Vehicle and Traffic Law from the deemed consent provisions, and clearly did not constitute one of the statutory protections within the contemplation of that decision. Simply stated, the Ward decision dealt with the issue of coercion, not the two‑hour time limit or the probative value of the evidence.


Nor would the fact that the motorist voluntarily consented to the test compel, in Simons eye, a different outcome:

The two‑hour limit was chosen by the Legislature to validate the probative uses of the results of a blood alcohol test. Those probative uses, and the concomitant need for a relevant blood sample, are not lessened because the driver has voluntarily consented to the test.


So where does the rule stand? Is Atkins the dispositive decree for which we have all been waiting?

In all likelihood it is not. Witness footnote two (2) to the majority opinion:

[t]o the extent that defendant argues that his consent to the blood test was not voluntary, that issue was not raised as a basis for suppression before the trial court or otherwise preserved for our review as a matter of law.


Despite their numbers, cases purporting to decide the question of two-hour applicability can be categorized as falling broadly into two distinct groups. The first, best represented by People v. Mills, (1986, 2nd Dept) 124 AD2d 600, 507 NYS2d 743, must initially look to the nature of the Defendant's consent. These cases generally stand for the proposition that the two hour rule is of no import where express consent has been given. Although, at first glance, cases such as People v. Sesman, (1987) 137 Misc2d 676, 521 NYS2d 626 and People v. Bezer, NYLJ, 11/8/91, p. 25, col. 3 appear to diverge, such is not the case. Each is dependant upon the nature of the defendant's consent.

The second group consists of those cases which hold that the two-hour rule is inapplicable irrespective of the nature of the defendant's consent. Representative of this line of cases is People v. Ali, (1991, NYC Crim Ct) 151 Misc2d 742, 573 NYS2d 575; see also, People v. Edwards, NYLJ 5/12/92 p. 26, col. 6. Without question, these eloquent and expansive offerings have been dealt a fatal blow by Atkins.

This does not mean, however, that the two hour rule has ceased to be a matter of paramount importance. Beneath the surface, the majority of the two-hour cases were controlled, not by the amount of time that was permitted to elapse between the arrest and administration of the defendant's test, but by consent. In large part, the importance of consent has been masked by concessions and the failure of leading cases to adequately set out the factual events which lead to the decision to concede. Particularly egregious in this regard is People v. Mills, supra. While the decision merely sets forth that [i]t [was] conceded that the blood test was administered with the defendant's express consent such is of little help, particularly in the wake of Atkins. In Mills, the defendant sought to characterize his arrest as occurring shortly after the occurrence of a fatality at 8:45 p.m.. A reading of the record on appeal, however, is supportive of the fact that such did not occur until 12:15 a.m. or a mere one hour before the sample was withdrawn. Even so, this fact would be of little consequence as the consensual nature of the test was conceded early on. Likewise, the record in Atkins is exceedingly sparse since the case rose on a stipulated set of facts that included a similar concession.

Since, under Atkins, such a concession is now tantamount to conceding admissibility notwithstanding when the test was had, litigation under the rule will now rightfully shift to an examination of the facts under which the Defendant agrees to submit. Put somewhat differently, although submission beyond two hours will still be a predicate which is necessary for raising the issue, the defendant will now have to seek invalidation of any consent which was ostensibly given.

This raises some interesting questions. In the usual situation, the decision to submit will occur following administration of the statutory warnings. Is submission in such a situation consensual? The answer is that it may or may not be, the dispositive fact being whether the defendant initially refused. As we observed in Volume 1, No. 10, People v. Sesman, (1987) 137 Misc2d 676, 521 NYS2d 626 stands for the proposition that when a motorist is initially asked to submit to a chemical test, he or she is actually being asked whether he or she is revoking the statutorily created implied consent. A motorist who immediately consents, following the Sesman rationale, cannot be said to have expressly consented to the test but, rather, in accordance with the statutory scheme for such testing, merely declined to revoke his deemed consent (id at, 684, parenthetical material omitted). Worth repeating is that the Sesman, declined to revoke conclusion has been independently reached in other jurisdictions (see, State v. Plante (1980) 417 A2d 991, [implied consent described as Agiv[ing] [the motorist] the powerCthough not the rightCto refuse to perform that duty; i.e., he may, in effect, withdraw his implied consent]; see also, Oregon v. Newton, (1981) 291 Ore 788, 793, 636 P2d 393 [refusal as contemplated by the statute is something other than withholding of consent because consent is legally implied. It is a refusal to comply with the consent which has already been given as a condition of a license to drive]; and see, Commonwealth v. Eisenhart, (1992) 531 Pa 103, 611 A2d 681 [a driver may revoke his implied consent . . . by refusing]).

Accordingly, if the defendant initially agrees to submit the test will fall within the purview of implied consent and the two hour rule will be applied, Atkins (or for that matter Mills) being of no significance. Therefore if, as in Sesman, the test is conducted more than two hours after arrest, the rule will bar admission at trial.

When, however the motorist initially refuses, and later agrees to submit, implied consent is no longer an issue. As recognized by the Fourth Department in People v. Osburn, (1989, 4th Dept) 155 AD2d 926, 547 NYS2d 749, lv den, 75 NY2d 816, 552 NYS2d 566, [a]lthough defendant's prior refusal negated any reliance upon statutory implied consent, evidence proffered at the suppression hearing supported the court's finding that defendant's consent was voluntary (id at, 751; see also, People v. Porter, (1974, 3rd Dept) 46 AD2d 307, 362 NYS2d 249). Under such circumstances and in the wake of Atkins, such assent will not bar admission of the test no matter when it was given, or will it?

Recall that in Atkins, the court specifically abstained from resolving questions pertaining to the voluntariness of the defendant's test. Now assume that immediately prior to agreeing to take a chemical test that is not administered within two hours of arrest the defendant is given the so-called Commissioner's warnings. Is his or her consent voluntary? Probably not.

Consent must be the result of a free and unconstrained choice (People v Slater, (1990, 3rd Dept) 166 AD2d 828, 562 NYS2d 985). Official coercion, even if deviously subtle, nullifies apparent consent (People v. Gonzalez, (1976) 39 NY2d 122, 124, 383 NYS2d 215 [emphasis supplied herein]; see also, People v. Flores, (1992, 1st Dept) 181 AD2d 570, 581 NYS2d 58). Coercion need not be intentional and can be based upon well-intentioned but misleading information (see, People v. Cosby, (1984, 2nd Dept) 104 AD2d 1000, 480 NYS2d 910). Moreover, the prosecution bears a heavy burden of proving consent (see, People v. Kuhn, (1973) 33 NY2d 203, 351 NYS2d 649).

In People v. Bezer, NYLJ, 11/8/91, p. 25, col. 3, Judge Duckman extensively reviewed the nature of the consent which preceded the defendant's decision to submit to a chemical test. Since under implied consent the results of a chemical test may not be received unless the test is administered within two hours of arrest, the Court took note of the Fourth Department's unequivocal assertion of the necessary corollary of the rule in People v. Brol, (1981, 4th Dept) 81 AD2d 739, 438 NYS2d 424, that evidence of the refusal is similarly incompetent evidence against defendant unless obtained within two hours of the arrest. The issue which therefore arises when the motorist submits to a test given more than two hours after arrest is the accuracy with which the arresting officer reported the consequences which would enure in the event that the motorist failed to submit. If the commissioner's warnings are given after expiration of the two hour window, they are fundamentally incorrect insofar as they advise the motorist that his or her refusal to submit could be admitted upon the trial of the action (see, People v. Brol, supra). As expressed in Bezer:

the fact that the warnings were administered more than two hours after the arrest was relevant to the voluntariness of defendant's consent. While it is true that the defendant, by agreeing to take the Breathalyzer test, was not consenting to statutorily prohibited conduct of the police, he was doing so only because he was threatened with having his refusal admitted in a criminal prosecution, something which the statute did not specifically allow. Thus, the fact that the warnings given did not accurately reflect the law certainly was relevant to the question of voluntariness, especially as it related to the knowingly aspect of that finding.


As noted by the Bezer court, People v. Dillin, (1991, NYC Crim) 150 Misc 2d 311, 567 NYS2d 991, seemingly came to a contrary conclusion. Dillin, however, on this point is dangerously circular. Finding that, since one is always free to consent, and submission beyond the two hour limit did not constitute acquiescence to statutorily prohibited action by the police, the Dillin opinion assumes the voluntary nature of the consent.

Consent is now the high ground of the two-hour rule and undoubtedly future cases will hone in on the role played by the refusal warnings in procuring the defendant's consent. Until further resolution is had, prosecutor's would do well to advise police authorities that when they seek consent more than two hours after arrest, it would behoove them to simply ask the motorist to submit, without employing the statutory warning.

There remains the question of a timely warning and an untimely test. Finding discretion to be the better part of valor, we'll reserve discussion on that point for later.

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