PEOPLE v. BUTLER (2020)

Judgment of conviction (Julio Rodriguez III, J., at suppression motion; Geraldine Pickett, J., at trial and sentencing), rendered May 31, 2013, affirmed.

While an individual charged with driving while intoxicated has a right to consult with an attorney before deciding whether to submit to a chemical test, it is only a qualified right to counsel, not a constitutional one (see People v. Smith, 18 NY3d 544, 549-550 [2012]; People v. Higgins, 124 AD3d 929, 933 [2015]). To invoke this right, the request must be specific and unequivocal (see People v. Keener, 138 AD3d 1162, 1163 [2016], lv denied 27 NY3d 1134 [2016]).

Here, the suppression court, which adopted the findings of fact and conclusions of law made by a judicial hearing officer, properly determined that defendant did not make a specific and unequivocal request to speak to an attorney before deciding to submit to the breathalyzer test that established a .157 blood alcohol content (People v. Curkendall, 12 AD3d 710, 715 [2004], lv denied 4 NY3d 743 [2004]; People v. Vinogradov, 294 AD2d 708, 709 [2002]; cf. People v. Mora-Hernandez, 77 AD3d 531 [2010]). The credited evidence, including the videotape of defendant's breathalyzer test, established that defendant, while “speaking incessantly” for nearly thirty minutes and mentioning that he had a lawyer, never requested to see or speak with his lawyer or any other lawyer regarding the decision to take the breath test, and repeated that he was not refusing to take a breathalyzer test.

Even assuming that defendant's statement “you can call my attorney all day” could be viewed as defendant making “a specific request for an attorney vis-a-vis th[e] decision” to submit to a chemical test (People v. Higgins at 933-934, quoting People v. Curkendall, 12 AD3d at 715), the officer responded “call your lawyer if you want.” Defendant, however, never took the officer up on this offer nor made any further mention of his attorney. Thus, it cannot be said that police “prevent[ed] access between [defendant] and his lawyer” in connection with such decision (People v. Gursey, 22 NY2d 224, 227 [1968]; see People v. Smith, 18 NY3d at 550; People v. Keener, 138 AD3d at 1164). Accordingly, the motion to suppress the test results and defendant's subsequent statements was properly denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.