Posted On: March 30, 2012 by Stephen Bilkis

For prosecution under the Vehicle and Traffic Law

For prosecution under the Vehicle and Traffic Law ("VTL"-devised for accident or injury prevention) for operating a motor vehicle while impaired or intoxicated by alcohol, it must be established, at a hearing by expert testimony, scientific evidence that a Blood Alcohol Content (BAC) test taken more than two hours after the arrest of the defendant is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at the trial.

The VTL and the New York State Department of Health Regulations on the administration of blood and breath tests mandates that the BAC test shall be administered within two hours of arrest. The Two Hour Rule actually benefits the prosecution in that it creates a presumption that the BAC test results are admissible. Absent such a rule the prosecutor would need to establish by expert testimony the scientific relevancy of the test in every drunk driving prosecution. To allow evidence of a BAC test taken more than two hours from arrest to be presented in a trial, People lose their presumption of the scientific reliability beyond two hours from arrest and must now establish the same at a pre-trial hearing.

In order to have some consistency and reliability, evidence should not be admissible, regardless of waiver or consent, if it is not probative, competent or relevant, i.e., scientifically acceptable. The law as developed by the Legislature in Vehicle and Traffic Law and in the N.Y.S. Health Department Regulations is that a BAC shall be given two hours from arrest. This standard, albeit an artificial one, should not mean two hours and twenty-eight minutes or two hours and forty-one minutes. Nor should the rule allow the courts to disregard the thirty-nine minutes a defendant sat in a police car after an accident (car accident – injury/personal injury resulted), albeit "voluntarily" before being "arrested" thereby extending the time to two hours and thirty-nine minutes.

Consent to taking a test which may lead to unscientific results should not make the test results competent or relevant. Courts should determine that such unscientific evidence is irrelevant and thereby should not be admitted into evidence at trial. Gamesmanship by the police, prosecutors, defense attorneys and even the courts should not override the legislatively mandated rule of two hours from arrest which arguably is based upon some scientific rationale.

An evaluation of the scientific rationale and the legislative history might lead courts to a different, more rational, conclusion. Namely, that stale test results may not be competent evidence, or that bad science makes bad law.

Courts routinely accept evidence of the BAC of a person at the time of the test. Additionally, the breathalyzer has been in public use since 1954 and has been widely accepted and adopted by law enforcement agencies for use in testing BAC. The BAC test clearly is the most important single piece of evidence from which the condition of the person at the time of the incident will be inferred. The court holds a special duty to ensure that evidence of such a "conclusive" nature is not shown to the trier of fact unless it is certain that the test results are competent evidence. "[T]he longer the delay between the time of [the] incident and [the] sample collection, the more difficult it becomes, scientifically, to draw reasonable inferences from one 'data point,' back to the 'driving' time". It ordinarily takes forty-five to ninety minutes to obtain a peak BAC level on an empty stomach and two to three hours if the alcohol is consumed with or after a meal, and the average rate of elimination for a 150-pound person is 7 grams per hour. Thus, a BAC measured sometime after the defendant is arrested may well be higher than if the test had been administered at the time of the arrest, before the peak BAC had been attained".

The delay between the time of the arrest and the time a chemical test is given might significantly reduce the reliability of the evidence if that time period is too great. Our Legislature determined that as long as the test was given within two hours of the arrest then the results would be competent evidence. If courts extend this time period under the guise that the defendant was not "arrested" for a substantial period of time after a stop or accident and then hold that the Two Hour Rule only applies to cases where the defendant has not consented to take the test, then courts would be receiving evidence that may not have an adequate scientific basis. Henceforward, the chance of prejudicing the defendant might outweigh any probative value of the evidence and therefore should not be admitted into evidence.

However, as recently decided by the court, there exists no obligation to advise an individual of any rights prior to the administration of a breathalyzer exam. There is no obligation on the part of law enforcement officials to advise a suspect of anything regarding the administration of a breathalyzer examination even when the request to submit to what he calls a "search test" occurs beyond two hours from arrest. A simple request by the police to take a breathalyzer exam is sufficient to result in a "voluntary consent" as long as "there is no express or implied coercion by law enforcement officials [or] material misrepresentation of fact in securing" the consent (id.) The burden to provide for "clear and positive evidence" that there was no misrepresentation of facts or coercion is placed on the People. Once the People meet their burden, the burden then shifts to the defense to show why the consent was not voluntary.

And as further ruled, the two-hour time limitation does not apply to court-ordered chemical tests. The justification for allowing such court ordered BAC tests is that an impartial ruling will be made to determine if such a test will be relevant based upon the particular facts and circumstances brought before the court where the order is being sought.

A number of decisions have been made regarding the two-hour rule with various interpretations. Notwithstanding the foregoing decisions which may obviate the issue of consent, BAC tests taken beyond two hours from arrest must still be demonstrated to be scientifically reliable and probative on the issue of intoxication in order to be admitted into evidence. It is inconceivable that BAC tests administered at any time are admissible in evidence without some limitation or inquiry into their probative value.

The Legislature adopted the Two Hour Rule in VTL to assist prosecutors in prosecuting drunk driving charges by eliminating the requirement of proving the scientific reliability of a BAC test in every prosecution. Therefore, a BAC test taken within two hours from arrest may be relevant evidence on the issue of intoxication at the time of driving. While two hours from the time of arrest may have been an arbitrary rule, it has some scientific rational to sustain it. A more scientifically relevant rule may be to extend the Two Hour Rule to perhaps three hours from the operation of a motor vehicle, but that is not the law. Only the Legislature may change the Two Hour Rule of VTL.

In a nutshell, the court will not suppress the BAC test results taken after two hours from arrest; however, since the BAC test was consented to and administered more than two hours from arrest, the People will not be entitled to the statutory presumption that BAC tests properly administered pursuant to VTL will be admitted into evidence. The People must now prove at a hearing by expert testimony the scientific reliability of the BAC test administered more than two hours from arrest and establish by clear and convincing evidence that he did so voluntarily.

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