By Benjamin Fox, Albany Government Law Review
When a police officer is suspicious that someone is driving under the influence it is common knowledge that a field sobriety or breathalyzer test is soon to follow. It is also well known that the driver will be taken to the local jail for processing should he fail one or both of those tests. However, the administration of a second chemical test while in police custody seems to be less well known. These tests, typically in the form of another breath test (though blood tests are also possible), are significantly more sophisticated and important than field tests. The results of the chemical test are admissible in a Vehicle and Traffic Law (VTL) § 1192 hearing – operation of a vehicle while under the influence of alcohol or drugs.
The administration of a chemical test is governed by VTL § 1194, which requires that the officer have reasonable grounds to believe the person in custody has violated § 1192 prior to administration of the test. The test must also be administered within two hours of the initial detainment. VTL § 1194 explains that there is no “right” to refuse the test and so consent to the test is not constitutionally required. In the event that the detainee refuses to take the test she will have her license temporarily suspended, and potentially revoked. Furthermore, evidence of refusal can be used against the driver during the VTL 1192 hearing. Because high stakes are involved it is important to understand exactly what “refusal” means. Unfortunately VTL § 1194 does not specifically define refusal, so the definition has been developed through various judicial decisions.
The clearest example of refusal is verbal, express refusal. For instance, “I will not submit to the test.” If the driver refuses, VTL § 1194 dictates that he be informed of the legal consequence of his refusal and given a second chance to take the test. If that person persists in his refusal he will have his license suspended for 30 days regardless of whether or not he is found guilty of a VTL § 1192 violation.
The second form of refusal is less clear – refusal by conduct. People v. Davis explains that, “where a defendant first verbally consents to take the breathalyzer test, but then deliberately acts in such a way as to prevent the breathalyzer machine from working, the defendant will be deemed to have refused by conduct to take the test.” Examples of this behavior include refusal to take the test a second time after the initial attempt proved inadequate, refusal to take the test at a particular hospital, avoiding the test by “feigning unconsciousness,” and others. However, refusal has also been found where a motorist agrees to take the test and delivers a sample, but is deemed to have refused. This conduct is the primary issue for the remainder of the article.
Van Sickle v. Melton explained that where a driver blows into the machine but “deliberately diverts his breath in order to prevent the machine from registering a reading,” the defendant has refused. In this case, the officer’s testimony that he heard air coming out the side of the defendant’s mouth was enough to suggest that the defendant’s actions were deliberate.
In another case, Beaver v. Board of Appeals, a driver submitted to a breathalyzer test and after several failed attempts was deemed to have refused. The driver’s doctor subsequently testified to the driver’s pulmonary function, stating that the driver could only exhale 190-204 cc’s or 9-12% of air for a person her age. However, the Court of Appeals affirmed the finding of refusal upon information that the breathalyzer machine could take a sample with as little as 55-56 cc’s of air. Inferentially, since the machine can take a sample with a smaller amount of air than the driver is capable of producing, she must have deliberately diverted her breath or acted in a way that resulted in failure to take a sample.
Unfortunately, the connection between hearing air escape from the corner of one’s mouth and deliberately diverting air in order to fool a breathalyzer machine, as it occurred in Van Sickle, seems tenuous. Air escaping from the sides of one’s mouth does not necessarily mean that there was a deliberate attempt to circumvent a breath test.
The inferential connections made in Beaver seem equally tenuous. The driver’s ability to exhale 190-204 cc’s of air coupled with the machine’s ability to take a reading with as little as 55 cc’s of air does not ultimately mean that the machine’s inability to produce a sample resulted from the drivers deliberate diversion. In the case of Beaver, the administering officers only testified that the defendant was given three opportunities to blow into the machine but each time no air was produced. Thus, she was found to have refused despite the driver’s explanation that she was trying her best to comply. That the driver was trying her best could have been a crucial turning point in other cases such as People v. Davis.
In Davis the court stated that where a defendant acts in “good faith” by genuinely attempting to produce a breath sample by “breathing directly into the machine,” it couldn’t be said that such a person actually “refused the test.” VTL § 1194 does not currently spell out what it takes to refuse a test by conduct. Perhaps if this test was considered in cases like Beaver and Van Sickle other evidence would have been more carefully reviewed and the outcome would have been different.
In light of this information the legislature has a responsibility to do two things. First, the definition of refusal should be fully realized in statute, for ease if for no other reason. Second, and more importantly, it would be helpful for the legislature to articulate a test that can more accurately identify refusal by conduct, especially for those who have willingly submitted to a breathalyzer test. The “deliberate diversion” test should be used in conjunction with the “good faith test” set forth in Davis. The deliberate diversion is an important tool for determining whether someone has genuinely submitted to a breath test. At the same time a good faith test can counteract the potentially harsh effects of the deliberate diversion test in times when some other potential error in the process, of no fault to the defendant, is capable of explaining what appears to be deliberate.
 N.Y. Veh. & Traf. Law § 1194 (McKinney 2011).
 N.Y. Veh. & Traf. Law § 1192 (McKinney 2011).
 Veh. & Traf. § 1194.
 People v. Anderson, 568 N.Y.S.2d 306, 308 (Crim. Ct. 1991).
 Veh. & Traf. § 1194.
 Id.; Anderson, 568 N.Y.S.2d at 307-08.
 8 N.Y. Jur. 2d Automobiles § 568 (West 2011).
 Veh. & Traf. § 1194.
 797 N.Y.S. 2d 258, 263 (Sup. Ct. 2005) (emphasis added).
 8 N.Y. Jur. 2d at § 568.
 Davis, 797 N.Y.S. at 263 (citing Van Sickle v. Melton, 407 N.Y.S. 2d 334 (App. Div. 1978)).
 Melton, 407 N.Y.S.2d at 335.
 499 N.Y.S.2d 248, 249 (App. Div. 1986).
 Beaver v. Appeals Bd. of Admin. Adjudication Bureau, State Dep’t of Motor Vehicles, 502 N.E.2d 994, 994 (N.Y. 1986) (citing Beaver, 499 N.Y.S.2d at 251 (Kane & Levine, JJ., dissenting) (The Court of Appeals decision directly references factual information from the Appellate Division decision without stating particular facts of the case in its opinion)).
 Beaver, 499 N.Y.S.2d at 251 (Kane & Levine, JJ., dissenting).
 Id. at 249.
 797 N.Y.S.2d 258, 265 (Sup. Ct. 2005).
 Id. at 262.