Published on:

Consent to Breathalyzer Illegally Obtained – People v. Odum, 31 N.Y.3d 344 (N.Y. 2018)


Under New York law, if a person is pulled over for suspected driving while under the influence of alcohol, the driver must submit to a chemical test (breath, blood, urine, or saliva), as a matter of “implied consent.” This does not mean that drivers absolutely have to submit to a chemical test. The purpose of the implied consent rule is to encourage drivers to consent and obviate the need to get court orders authorizing blood tests.  Drivers can certainly refuse to take a breathalyzer or other chemical test.  However, with refusal comes the serious consequence of a 6 month license suspension and a $300 fine. If the driver refuses again within 5 years of a previous DWI related offense, the consequences are a mandatory 1 year license suspension and a $750 fine.  These penalties are in addition to any penalties related to a DWI or similar offense conviction.

In People v. Odum, defendant Odum was arrested for DWI and taken to the police station. He was not asked to take a breathalyzer until over two hours after he arrived at the police station.  He refused.  The police officer then gave Odum the statutory warning related to the consequences of refusing the breathalyzer, including that Odum’s refusal to consent to the breathalyzer would be used against him as evidence in his trial.  After hearing the refusal warnings, Odum changed his mind and consented to the breath test which confirmed that his blood alcohol level was over the legal limit.  Odum later petitioned the court to suppress the breath test and his initial refusal to take it.

The rules related to the breath test requirement are detailed and clear. Because of New York’s implied consent provisions, a refusal to take the breath test or any other chemical test in conjunction with being stopped on suspension of driving while drunk is a violation of the law  with consequences. A driver can be convicted of refusing to take a chemical test and be acquitted of DWI charges.

When drivers refuse the chemical test, the police are required to give the driver a standard refusal language, including that the refusal can be used as evidence against the driver in any trial related to the traffic stop.  The problem in People v. Odum is that the officer did not ask Odum to take the breath test until over 2 hours after he was stopped and taken to the police station.  That changes the requirements.  New York VTL § 1194(2)(a)(1) provides that the chemical test must be administered within 2 hours of the arrest.  If the driver is asked to take the test after 2 hours, then the officer is not supposed to warn him that the results would be used against him at trial.  Because the police officer warned Odum of admission in court of his refusal after the time limit, the consent Odum gave was based on an incorrect statement of the law. This means that Odum’s consent was coerced and invalid. As a result, the results of Odum’s breathalyzer were deemed inadmissible.

Prosecutors have other tools at their disposal to try to collect evidence in a DWI case.  For example, if the driver refuses a breath test, the prosecution has the option of getting a court order to compel a blood test.  Likewise, there are number of ways that a defendant can challenge a DWI charge other than refusing to take a breath test including challenging that there was probable cause for the traffic stop or for the DWI arrest, challenging the results of the test, or challenging how the test was administered.

Posted in:
Published on:

Comments are closed.

Contact Information