| People v Centerbar |
| 2011 NY Slip Op 00299 [80 AD3d 1008] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MatthewCenterbar, Appellant. |
—[*1]
Spain, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered May 20, 2009, convicting defendant upon his plea of guilty of the crime of vehicularmanslaughter in the first degree.
Defendant was operating a motorcycle on the evening of August 9, 2008 when he wasinvolved in a one-vehicle accident in the Town of Queensbury, Warren County, resulting in thedeath of his passenger, Joshua Bierman. A police officer for the Warren County Sheriff'sDepartment, Jason Martindale, responded to the scene and spoke with defendant. Martindaledetected the smell of alcohol on defendant, who was transported to the hospital where he wastreated for his injuries. When asked at the hospital, defendant consented orally and in writing tohaving blood drawn by the nurse for use by the police. Defendant was not arrested. A blood testyielded a blood alcohol content of .14%. Defendant was subsequently indicted for vehicularmanslaughter in the first degree and two counts of driving while intoxicated. After a hearing,County Court denied defendant's motion to suppress the blood alcohol test results, finding as afactual matter that defendant had voluntarily consented to the test and ruling that police were notrequired to arrest him before obtaining that consent. Defendant then entered a guilty plea tovehicular manslaughter in the first degree and was sentenced to 2
Defendant's primary contentions on appeal are that policewere required to place him under arrest prior to obtaining a blood sample with his consent, andthat his consent was not the product of voluntary free will given his injuries and the lack ofMiranda warnings. These claims do not withstand analysis.
Defendant's premise is that police are required to arrest a person prior to obtaining consent todraw blood if they have reasonable suspicion that the person was driving under the influence ofalcohol or drugs (see Vehicle and Traffic Law § 1192), relying upon the impliedconsent law contained in Vehicle and Traffic Law § 1194 (2) (a) (1). Under that impliedconsent provision, any person who operates a motor vehicle in this state is deemed to haveconsented to a chemical blood alcohol test conducted at the direction of a police officerpossessing reasonable grounds to believe such person to have been operating a motor vehicle inviolation of Vehicle and Traffic Law § 1192, provided the test is administered "within twohours after such person has been placed under arrest for any such violation" (Vehicle and TrafficLaw § 1194 [2] [a] [1]; see People v Goodell, 79 NY2d 869, 870 [1992]; People v Morrisey, 21 AD3d 597,598 [2005]). Unlike an actual consent situation in which a driver voluntarily submits to a test, theimplied consent provision is directed at those drivers required to submit to the test, whoface immediate suspension and subsequent revocation of their license to drive upon refusal tosubmit (see People v Ward, 307 NY 73, 77-78 [1954]; see also Vehicle andTraffic Law § 1194 [2] [b]). If a person so required to submit actually refuses, a court orderis required to compel the test (see Vehicle and Traffic Law § 1194 [3] [b]), but theperson's express consent is not required under the implied consent law (see People vMorrisey, 21 AD3d at 598). Indeed, police have the authority under the implied consentprovision to draw blood within the two-hour time-frame from a comatose person for whom theyhave reasonable grounds to suspect of driving under the influence, notwithstanding the inabilityto formally arrest that person (see People v Goodell, 79 NY2d at 870-871; People v LeRow, 70 AD3d 66,70-71 [2009]). Moreover, "the two-hour limitation . . . has no application. . . where . . . defendant expressly and voluntarily consented toadministration of the blood test" (People v Atkins, 85 NY2d 1007, 1009 [1995]). TheCourt of Appeals long ago recognized that the implied consent law "has no application where, ashere, the defendant voluntarily submitted to the test," explaining that "it is difficult to perceiveany necessity for the protections embodied in [the implied consent provision] where the driverfreely volunteers to take the test" (People v Ward, 307 NY at 76, 77). The Court reasonedthat a test on voluntary consent is on parity with a warrantless consensual search and seizure; theresults of both are admissible (id. at 78).
Thus, we hold that where, as here, police possess reasonable grounds to believe that a driverhas been driving under the influence, they are authorized to direct that the driver's blood bedrawn with the voluntary consent of the driver to submit to a chemical test and are not requiredto arrest the driver before obtaining such consent (see People v Gaffney, 299 AD2d 922,923 [2002], lv denied 99 NY2d 582 [2003]; People v Craig, 262 AD2d 1074,1074-1075 [1999], lv denied 93 NY2d 1016 [1999]). That is, the arrest requirement inthe implied consent law, like the two-hour time frame therein (see People v Atkins, 85NY2d at 1008-1009), has no application where a driver expressly and voluntarily consents to theadministration of a blood alcohol test.
Turning to defendant's argument that his consent was not the product of free will, weperceive no grounds upon which to disagree with County Court's factual determination, after anevidentiary hearing, that, despite his significant injuries, defendant's consent to the blood test wasvoluntary (see People v Gaffney, 299 AD2d at 923; People v Craig, 262 AD2d at1074-1075; [*3]People v Verdile, 119 AD2d 891, 892[1986]; cf. People v Skardinski, 24AD3d 1207, 1208 [2005]). Martindale testified that defendant was conscious and responsiveto the emergency medical providers, and he communicated that he had been operating themotorcycle. When defendant arrived at the hospital, he was in pain but communicative, admitteddrinking but now claimed that he had been the passenger. Martindale identified himself andasked defendant for consent to have the nurse draw blood and defendant agreed. Defendant wasnot restrained or sedated. At the officer's request, the treating nurse then asked defendant forconsent, explaining that the test was for the police, and defendant again verbally consented. Thenurse testified that defendant was then in stable condition and she believed he understood herquestions even while expressing that he was in pain and yelling, and he signed a written consentform while in a reclined position.[FN*]The nurse described defendant as fully alert, in moderate distress, and aware of his name, wherehe was and the day.
The record indicates that after defendant was taken for X rays and a CT scan (which revealeda collapsed lung), his condition deteriorated, his blood pressure dropped and he exhibited signsof internal blood loss. The treating physician, Jeffrey Flynn, testified that while defendant wasstable and conversant initially and when sent to radiology, upon his return he was in distress andwas experiencing increased pain and breathing difficulty; he opined that defendant was at thatpoint incapable of consenting to a needed emergency procedure before being taken to surgery.While the precise time of defendant's consent to the blood test could not be established, therecord supports the conclusion that it was obtained prior to defendant's deterioration, at a timewhen he was conscious and capable of understanding the requests and of voluntarily assenting.Based upon the foregoing, there was ample support for County Court's factual determination thatdefendant's consent was knowing and voluntary (see People v Verdile, 119 AD2d at892).
Finally, while defendant's hospital medical records were privileged (see CPLR 4504[a]), he placed his physical and mental condition at the time of his consent—as well as hiscondition before and after—directly in issue by calling the emergency room treatingphysician to testify regarding his ability to consent, thereby waiving the privilege (see Peoplev Strawbridge, 299 AD2d 584, 590-591 [2002], lvs denied 99 NY2d 632 [2003], 100NY2d 599 [2003]). Defendant called upon that physician, and the treating nurse duringcross-examination, to testify to their recollection—and based upon the medicalrecords—regarding his condition, treatment and capacity at the hospital and at the time ofhis consent and, thus, no error occurred.
Cardona, P.J., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: That written consent could notbe produced by the hospital at the hearing.