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People v Gursey What Does it Say and How Does it Work

February 13, 2008

While reasonable minds may differ, our feeling is that the most damaging piece of evidence in an alcohol related operating offense is a chemical test. It is with that thought at the forefront, that we are somewhat surprised to see the relative absence of litigation concerning the all important qualified right to counsel that a motorist enjoys in New York.

Although frequently misunderstood by both the prosecution and defense, a motorist does have the right to consult with counsel prior to submitting to a chemical test. This right, however, is only a qualified right, as being asked to submit to a chemical test is not a critical stage so as to result in attachment of the operator's Sixth Amendment right to counsel (People v Shaw (1988) 72 NY2d 1032, 534 NYS2d 929, 531 NE2d 650).

The rule as it exists in New York, is best summed up by setting out that a motorist charged with a violation of any subdivision of Vehicle and Traffic Law ' 1192 possesses a qualified right to speak with an attorney provided that request does not unduly delay the proceedings. Although the failure of the authorities to permit such consultation to take place can results in suppression of the test, a motorist may not condition whether or not he or she chooses to take a test upon first consulting with an attorney (Smith v Passidomo (1986, 2d Dept) 120 AD2d 599, 502 NYS2d 73; Finocchairo v Kelly (1962) 11 NY2d 58, 226 NYS2d 403, 181 NE2d 427, cert den 370 US 912, 8 L Ed 2d 405, 82 S Ct 1259; Du Pree v Foschio (1982, 4th Dept) 89 AD2d 800, 453 NYS2d 477..

In People v Gursey, (1968) 22 NY2d 224, 292 NYS2d 416, the defendant requested to speak with a particular attorney shortly after his arrest. He was told he would be permitted after the officer obtained certain information. The defendant renewed his request after a solicitation to submit to a chemical test was made. His request denied, the defendant, after being informed that he had to submit, consented to administration of the test. The test was admitted at trial, a decision in which the Appellate Division concurred.

Identifying the strategic magnitude of the decisions with which he was confronted, the Court of Appeals reversed.

[L]aw enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.

22 NY2d at 227.

Finding that the situation called for the guidance which only an attorney could provide, the Court held it improper to deny the defendant's requests when it appeared that they would not result in an appreciable delay in the proceedings:

Granting defendant's requests would not have substantially interfered with the investigative procedure, since the telephone call would have been concluded in a matter of minutes. At least, the record here does not indicate otherwise. Consequently, the denial of defendant's requests for an opportunity to telephone his lawyer must be deemed to have violated his privilege of access to counsel.

Id. at 228.

Although Gursey stands for the proposition that a motorist cannot be forced to make the decision in the absence of counsel, the cases have stood equally firm in stressing the absence of duty on the part of the authorities to forestall the proceedings until counsel actually appears (see, e.g., People v O'Rama (1990, 2d Dept) 162 AD2d 727, 557 NYS2d 124, app gr 76 NY2d 895, 561 NYS2d 557, 562 NE2d 882 and revd on other grounds 78 NY2d 270, 574 NYS2d 159; Brady v Tofany (1971) 29 NY2d 680, 325 NYS2d 415). Any effort to read Gursey to create a right to have an attorney present for administration of the test is incorrect (see e.g., People v O'Neill (1980) 105 Misc 2d 315, 432 NYS2d 75).

Of interest in Gursey is that the defendant indicated his willingness to contact a particular attorney. In People v Curley, (1986, 2d Dept) 122 AD2d 67, 504 NYS2d 221. this specificity was lacking, to the effect that the Second Department held that:

Even assuming, for the sake of argument, that the request was actually made and denied, it is not now possible to determine whether the defendant would have been able to communicate with an attorney in time for the Breathalyzer test to have been administered within two hours from the time of his arrest, as required by Vehicle and Traffic Law ' 1194(1)(1).


Nor, must the police go through extended efforts to locate the defendant's attorney (People v Huelin (1975) 85 Misc 2d 139, 378 NYS2d 865), although it has been held that when officers in a mobile DWI processing unit may make a nearby pay phone available with minimum effort, the failure to facilitate a call will result in suppression of the results (People v Rinaldi (1981) 107 Misc 2d 916, 436 NYS2d 156; see also, People v Anderson (1991) 150 Misc 2d 339, 568 NYS2d 306).

In People v Pfahler, (1992, 4th Dept) 179 AD2d 1062, 579 NYS2d 520. the defendant contended that the court should have suppressed his blood test results because he was denied his right to counsel.

At a pre‑trial hearing conducted on this issue, the evidence indicated that the defendant was repeatedly advised of his Miranda rights and Commissioner's warnings. The defendant indicated that he understood his rights and agreed to submit to a blood test. When the defendant's attorney called the hospital and was informed that the defendant was about to have a blood test, the attorney did not ask to speak to defendant and did not object to the blood test.

Since the right to counsel prior to submitting to a chemical test is only a qualified one, the court found no violation had occurred.

People v Peabody, (1994, 3d Dept) 206 AD2d 754, 615 NYS2d 92,. concerned a rather thorny problem which frequently arises upon the trial of an alcohol‑related operating offense. Assume that following arrest the defendant informs the arresting officers that he or she desires the opportunity to consult with counsel prior to submitting to a test to determine the chemical content of his or her blood. While an arrestee has a qualified right to consult with an attorney prior to making his or her decision to submit to a chemical test, will such a declaration prove sufficient to invoke the motorist turned defendant's broader constitutional right to consult with counsel?

In Peabody, the Defendant informed the arresting officers that he would not submit to a chemical test until the Public Defender was present. Such an assertion was, according to the Third Department, a sufficient basis to affirm a County Court order suppressing statements given after it was made.

Of some surprise, the declaration proved an insufficient basis upon which to invoke the defendant's qualified right to consult with counsel prior to submission to a chemical test. Unlike testimonial evidence, invocation of this limited right merely affords the motorist the limited opportunity to consult with counsel prior to making a decision as to whether to submit to the test. Nothing in the Gursey rule requires the arresting officers to indefinitely forestall forcing the defendant to make a decision until a particular attorney can be located. Noting that the record revealed ample factual support for a finding that defendant was given an adequate opportunity to consult with counsel and was accurately apprised of the consequences of his refusal to submit to the breathalyzer test, the Court found no error in admitting his refusal to submit.

In People v O'Rama, (1991) 78 NY2d 270, 574 NYS2d 159, the defendant informed the police that his attorney could not be reached for several hours. Commenting that such was properly deemed a refusal, the Court of Appeals observed:

With respect to defendant's complaint about the trial court's denial of his pretrial motion to preclude evidence that he refused to take a breathalyzer test, we conclude that the ruling was not, as a matter of law, erroneous. The record supports the finding that defendant was afforded an adequate opportunity to consult with counsel and was accurately apprised of the consequences of his refusal to submit to the test. When viewed in the context of defendant's statement to police that his attorney could not be contacted for several hours, the police officer's statement to him that his insistence on waiting for his attorney constituted a refusal was not misleading or inaccurate.

O'Rama at 280 [internal citations omitted].

Often lost in the Gursey cases is that although the motorist has a qualified right to consult with counsel prior to administration of a test, he or she may not condition submission to the test upon actually speaking with counsel. This is a crucial distinction, and is well worth discussion. The difference is this: Take the situation where Mary is arrested for Driving While Intoxicated and asks to speak to her attorney. Prior to submitting to the test she is given the opportunity to call her lawyer but is successful in merely reaching the attorney's babysitter. Thereafter she maintains that she will not submit to the test unless she actually speaks with counsel. Is this a refusal? It is, inasmuch as the qualified right runs only to providing the motorist with the opportunity to consult with counsel. It by no means mandates or guarantees that the motorist and the attorney of his or her choice communicate regarding the decision to take the test.

What of third parties, can the motorist claim that the right was invoked by a request to talk to a third person who presumably will thereafter contact the attorney? In a word, no. In the matter of Smith v. Passidomo, (1986, 2nd Dept) 120 A.D.2d 599, 502 N.Y.S.2d 73, the motorist claimed that a determination by the Department of Motor Vehicles should be annulled as a result to the failure of the arresting officers to permit her to speak with her nephew and her friend. Rejecting this contention, the Second Department held:

The holder of a motor vehicle operator's license is not permitted to condition his or her consent to take a chemical test on first consulting an attorney [citations omitted]. It follows, then, that contrary to the petitioner's contention, any denial of access to her nephew and friend in this context cannot serve as a functional equivalent of a denial of the right to counsel.

120 AD2d at 600.

Another factor frequently misunderstood is that the Gursey rule runs solely to the criminal proceeding. Perhaps somewhat unfairly, it is of no use to a motorist who is attempting to avoid the consequences of a refusal. In People v. Cook, (1994) 205 A.D.2d 903, 613 N.Y.S.2d 475, the Petitioner was arrested for Driving While Intoxicated. The arresting Trooper thereafter appropriately advised petitioner of the requisite warnings concerning his obligation to submit to a chemical test or suffer the loss of his driving privileges (see, Vehicle and Traffic Law ' 1194[2][b], [c]). Maintaining that he had two hours in which to submit to the chemical test, the motorist sought to condition his submission upon consultation with his attorney. Thereafter, the Trooper informed him that he could not condition the test in this fashion and that he would have ample time to communicate with his attorney after the test. He further informed the motorist that his continuation of conditioning the test upon consultation before submission would be deemed a refusal. The motorist continued and the Trooper considered petitioner's persistence to be a refusal. Following an administrative hearing (see, Vehicle and Traffic Law ' 1194[2][b] ), petitioner was ultimately found to have refused to submit to a chemical test and his driver's license was revoked.

On a CPLR article 78 proceeding, the Supreme Court concluded that petitioner had a right to counsel, and that conditioning his submission to the test upon consultation with his attorney was not a refusal. The Supreme Court, therefore, annulled respondent's determination and restored petitioner's driver's license. On appeal, the Third Department reinstated the revocation. Observing that the right is not absolute, in that the motorist cannot condition submission upon consultation, the Court noted that [h]aving been lawfully arrested for driving while intoxicated, petitioner was obligated to submit to a chemical test to determine his blood alcohol level or suffer the loss of his driving privileges. Even so, the Court was careful to recognize that crucial differences exist between the criminal and administrative phases of the proceeding:

While indeed, in a criminal proceeding, the failure to comply with a defendant's request for assistance of counsel may result in the suppression of evidence obtained (see, People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650; People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351), the same consequence does not apply in the context of an administrative license revocation proceeding (see, Matter of Finocchairo v. Kelly, supra ).


The question which survives Cook is: Will the refusal be admissible at a trial of the action? In People v. Martin, (1989, Newark Village) 143 Misc. 2d 341, 540 NYS2d 412, the defendant claimed that he was denied his right to consult with an attorney prior to making his decision not to submit to a Breathalyzer test. Finding that the act of refusal should, under the authority of Gursey be suppressed, Newark Village Justice V. Bruce Chambers wrote: AThis court does hold . . . that a defendant has a qualified right to consult with counsel prior to determining whether or not to submit to a chemical test to determine the alcohol content of his blood if he makes a request to do so. By qualified the court means that such consultation must not unreasonably interfere with the testing procedure. * * * This court is of the opinion that the denial of access to counsel, after a request for such access is made, is at least as serious a breach of defendant's rights as failure to adequately advise a defendant of the consequences of his refusal to take the test. I therefore hold that, if a defendant is denied access to counsel for the purpose of consulting on the decision of whether or not to submit to a chemical test to determine the alcohol content of his blood, a refusal to submit to such a test may not be used as evidence against the defendant at a subsequent trial. Certainly, it can be argued that the evidentiary presumption that arises is just as capable of suppression as is the test.

Of some concern is the manner in which the motorist expresses his or her desire to consult with counsel. In People v. Hart, (1993) 191 A.D.2d 991, 594 N.Y.S.2d 942, the defendant, following the occurence of a traffic accident, apparently made a statement to the arresting officers to the effect that he should have counsel. Finding such to be an insufficient basis upon which to invoke the qualified right, the Fourth Department observed:

Here, defendant's statements to the police that he should have counsel did not unequivocally inform the police of his intention to retain counsel, or that he wanted the opportunity to consult with an attorney before speaking to the police or undertaking the sobriety tests. Defendant's statements, therefore, were insufficient to invoke his right to counsel.

191 AD2d at 992.


What of situations where the officer is alleged to have intervened prior to consultation with counsel? Will such intervention act as a denial of this qualified right? In view of the fact that this right is of the slimmest sort and must unequivocally be invoked by the motorist, the answer to that one is probably, no. In People v. Phraner, (1991, District Court, Suffolk County, 1st District) 151 Misc.2d 961, 574 N.Y.S.2d 147, The defendant testified, upon as hearing to suppress that, when initially asked if he wanted to submit to the breath test, he told the police officer that he wanted to call an attorney. The defendant then called his attorney and spoke to the attorney's wife, who asked him to hold on while she got her husband. The defendant testified that, while waiting for the attorney to get on the telephone, he was told by the police officer that he did not need an attorney, so the defendant hung up without speaking to him. The defendant further testified that he hung up because the cop said I did not need a lawyer. Moreover, it was alleged that this statement was made by the officer several times.

Finding the issue to be one of first impression, the Court (Lefkowitz, J.), given the voluntary nature of the defendant's action, refused to suppress:

The defendant in this case was informed of his right to consult with an attorney and was given the opportunity to do so. It was the defendant who hung up the telephone before the attorney's wife had the opportunity to reach him. Rather than ask his attorney what to do, the defendant chose to hang up and take the test. Assuming that the police officer did tell the defendant that he did not need a lawyer, the officer did nothing to prevent the defendant from either placing the telephone call or completing it and consulting with counsel. Deciding not to consult with counsel was the defendant's choice. The Court does not agree with the defendant's contention that the police officer's statement prevented an unfettered right to communicate with an attorney and rendered the subsequent test suppressible. At no time did the defendant testify that the police officer spoke in a threatening or intimidating manner. The Court does not find that the police officer employed impermissible coercion in this case. It was the defendant who hung up the telephone and not the officer. All that the defendant had to do was to stay on the telephone and say to his attorney, "Counselor, the police officer told me that I do not need an attorney, but what do you think? Should I take the test or not?" The defendant chose not to do this. After contacting his attorney's home, the defendant hung up before speaking with the attorney and agreed to take the test. He cannot now complain that the result should be suppressed.


Likewise not to be forgotten, is the simple fact that the police cannot be expected to wait until the one-hundred and fifteenth minute for the motorist's submission. People v. Atkins and questions of consent set aside, it remains that most police personnel believe that the test must be given within two hours of the arrest. Thus when the motorist uses his or her Gursey right as a shield through which to avoid submission to the test, he or she probably will, at the expense of having the entire procedure deemed a refusal. In People v. Wilkenson, (1991, 4th Dept) 176 AD2d 1233, 576 NYS2d 728, the Fourth Department noted that since petitioner refused to submit to the test until it was too late to administer it effectively[,] [h]is subsequent consent was irrelevant.

What if the motorist requests a particular attorney and that attorney is not available. If a test is subsequently given, can the Defendant claim a Gursey violation? Recognizing that the right to consult with counsel is a qualified right without constitutional or statutory underpinnings, the answer is no. Indicative of this outcome is People v. Wassen, 150 Misc2d 662, 569 NYSd 877. In Wassen, Defendant's lawyer was present with the defendant at the time of his arrest and was thereafter charged with Obstructing Governmental Administration and other charges, on the ground that he physically and verbally interfered with the police attempt to arrest defendant. Following his arrest, the motorist asked to speak with his attorney who, by now, was in custody. As a result of the custodial status of the lawyer, the request was denied.

By motion, the defendant moved to suppress the results of his test upon the ground that he was denied his Gursey right. Denying the motion, the Court, in this case of first and sole impression:

This court concludes, therefore, that the police had no legal obligation to render Bergida available to defendant, either in person or by telephone, while Bergida was in custody. [FN7] To the contrary, what the police did here was to conform to established practice. Neither defendant nor Bergida was treated differently from any other arrestee in their respective situations. Having elected to seek counsel from an attorney then under separate arrest on a charge of physical interference with defendant's arrest, defendant cannot now fairly be heard to demand the benefit of suppression of his refusal to take a breathalyzer test on the ground that he was denied access to his counsel before electing to refuse the test.

Wassen at 669-670.


What of the situation where the defendant claims that his right to consult with counsel was compromised or otherwise interfered with by the actions of the police? Can this mandate suppression? Although surprisingly no reported decision exists on this point, it has arisen. In People v Saxum, (1993, Buffalo City) n.o.r., Docket No. 92F-20188, the defendant was placed under arrest for driving while intoxicated and was thereafter requested to submit to a chemical test. Uncertain as to the advisability of so doing, the defendant requested to call a specific attorney. Officer Doyle, the breathalyzer operator, reached the attorney of the defendant's choosing and, after a short preamble of background information, allowed the defendant to confer with such attorney until the call was apparently terminated through no fault of the police or the defendant. The decision reports that the total time of this call to the attorney was eight minutes. Following the untimely termination of this call the defendant informed officer Doyle that his conversation had been cut off before the attorney and the defendant had gotten "around to talking about the test yet." Officer Doyle again contacted the attorney and the Defendant once again conferred with counsel for another eleven minutes before the call was inexplicably terminated. Thereafter, the defendant refused to take the test and maintained that such refusal should be suppressed as a result of the failure of the police to initiate any further contact with his attorney. Finding that Gursey and its progeny, "afford a defendant charged with a drinking and driving offense a reasonable opportunity to consult with an attorney," the court held that the defendant did have the opportunity to confer with counsel for over eighteen total minutes and any further phone calls would have only unduly delayed the administration of the breath test and other policy procedures." Accordingly, the court (Manz, J.) refused to suppress the refusal.

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