People v. Harvin

KINGS COUNTY
Criminal Practice

, New York Law Journal

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Judge Matthew Sciarrino Jr.

The court previously affirmed a Judicial Hearing Officer's (JHO) recommendation to grant Harvin's motion to suppress evidence of his refusal to submit to an Intoxilyser test as it was in excess of two hours from the time of his arrest. Prosecutors moved to reargue the decision arguing the evidence of the refusal should not have been suppressed. The court noted the two-hour rule originated in Vehicle & Traffic Law §70(5), but the legislature moved the provision to §1194, the so-called "deemed consent" provision. This statutory relocation resulted in differing and conflicting decisions by trial courts and the Appellate Divisions. One line of cases continued to treat the two-hour requirement as an evidentiary rule applying to the entire statute, including the refusal provision of §1194(2)(f), while a second line of cases demonstrated a gradual shift from the two-hour rule and held it was only applicable to §1194(2)(a), the implied consent provision. The court found there was an emerging consensus the two-hour rule was inapplicable to the refusal provision of §1194(2)(f). Thus, as prosecutors' argued the law, the motion to reargue was granted, and upon same, the prior decision modified as to the refusal that was suppressed by the JHO, denying same.

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