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Pedro ENDARA–CAICEDO, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et al., Respondents.
The petitioner Pedro Endara–Caicedo (“Petitioner”) moves for a judgment pursuant to Article 78 of the CPLR vacating, annulling, and setting aside as unlawful, arbitrary and capricious, and an abuse of discretion, the determination of the Department of Motor Vehicles in Case Number 1671281, Appeal Docket Number 37768, revoking Petitioner's license to drive for at least one year and imposing upon Petitioner a $500 civil penalty. The respondent New York State Department of Motor Vehicles (“Respondent”) cross-moves to dismiss the petition for failure to state a cause of action pursuant to CPLR 7804(f) and 3211(a)(7), or in the alternative, an order granting Respondent thirty days from service of the petition to serve its answer. Petitioner opposes the cross-motion.
The facts of this matter are not in dispute. On January 30, 2016, Petitioner was arrested for driving while intoxicated. Nearly four hours after his arrest, police officers asked Petitioner to take a chemical breath test (commonly referred to as a breathalyzer test). The officers read Petitioner the standard “refusal warnings,” based on Vehicle and Traffic Law (“VTL”) § 1194(2)(c), wherein they informed Petitioner that if he did not take the test, his license would be revoked, whether or not he was subsequently found guilty of driving while intoxicated at trial. Petitioner refused to take the breathalyzer test.
On July 5, 2016, Respondent conducted an administrative due process hearing to determine if Petitioners' license was properly suspended for refusing to take the breathalyzer test. Petitioner argued that the “deemed consent” provision of VTL § 1194(2)(a) did not apply to any chemical test administered more than two hours after his arrest, and thus, he could not be penalized for his choice not to take the test nearly four hours after his arrest, as that choice could not constitute a “refusal” within the meaning of the VTL. In a written decision dated July 19, 2016, the Administrative Law Judge (“ALJ”) found that Petitioner refused to take a chemical test in violation of VTL § 1194, and thus Petitioner's license was revoked for at least one year. Petitioner appealed the ALJ's decision on August 25, 2016. On February 28, 2017, the Appeals Board affirmed the earlier decision, determining that the “two-hour rule” was inapplicable to the due process hearing. Respondent thereafter reinstated the revocation of Petitioner's license and the imposition of a $500 civil penalty for his refusal to take a breathalyzer test.
Petitioner now moves for a judgment pursuant to Article 78 of the CPLR, vacating, annulling, and setting aside as unlawful, arbitrary and capricious, and an abuse of discretion, the Respondent's determination. Respondent has filed a pre-answer cross-motion to dismiss the petition pursuant to CPLR 3211(a)(7) and 7804(f) for failure to state a cause of action.
II. Standard of Review
This petition challenges the Respondent's determination following a hearing pursuant to CPLR 7803(3). The standard of review in this context is “whether the determination under review was made in violation of lawful procedure, was effected by an error of law, or was arbitrary and capricious or an abuse of discretion” (see Resto v. State, Dept. of Motor Vehicles, 135 A.D.3d 772, 773, 22 N.Y.S.3d 584 [2nd Dept. 2016] ). Courts will look to whether the determination “ ‘is without sound basis in reason and is generally taken without regard to the facts’ ” (Galaxy Bar & Grill Corp. v. New York State Liquor Authority, 154 A.D.3d. 476, 482, 61 N.Y.S.3d 539 [1st Dept. 2017]; Matter of Pell v. Board of Education of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321  ). On a motion to dismiss made pursuant to CPLR 3211(a)(7) and 7804(f), all of the factual allegations in the petition are accepted as true, and the petitioner is afforded the benefit of every favorable inference (see Kunik v. New York City Dept. of Educ., 142 A.D.3d 616, 617–18, 37 N.Y.S.3d 22 [2nd Dept. 2016] ). The sole criterion in determining such a motion is “whether the petition sets forth allegations sufficient to make out a claim that the determination sought to be reviewed was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ ” (id., CPLR 7803 ).
III. Applicable Law and Analysis
Vehicle and Traffic Law § 1194(2)(a)(1) provides: “ ‘[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of ․ breath, blood, urine ․or saliva ․ for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer ․ having reasonable grounds to believe such person to have been operating’ a motor vehicle under the influence of alcohol or drugs and that such test occurs ‘within two hours after such person has been placed under arrest for any such violation’ ” (Sherwood v. New York State Dept. of Motor Vehicles, 153 A.D.3d 1022, 1023, 59 N.Y.S.3d 837 [3rd Dept. 2017][internal quotation omitted] ). “If such person thereafter is asked to submit to a chemical test and refuses, despite being warned of the consequences of that decision, his or her license ‘shall be immediately suspended and subsequently revoked’ ” (id., citing VTL § 1194[b]; Matter of Cook v. Adduci, 205 A.D.2d 903, 903–904, 613 N.Y.S.2d 475 [3rd Dept. 1994], lv. den., 84 N.Y.2d 811, 622 N.Y.S.2d 913, 647 N.E.2d 119  ). The driver whose license was revoked is entitled to an administrative hearing where the issues are expressly limited to: “(1) did the police officer have reasonable grounds to believe that such person had been driving [while under the influence of alcohol or drugs]; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person's license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test or any portion thereof” (id., citing VTL § 1194[c]; Matter of Berlin v. New York State Dept. of Motor Vehicles, 80 A.D.3d 911, 913, 914 N.Y.S.2d 436 [3rd Dept. 2011] ). If, after the hearing, the ALJ finds all of these issues in the affirmative, the driver's license is immediately revoked (id., citing VTL § 1194[c] ).
Petitioner here contends that he did not “refuse” a chemical test in violation of VTL § 1194 because it was not requested until nearly four hours after his arrest. Petitioner asserts that, according to the statute, a driver is only deemed to have consented to a chemical test that is requested within two hours after his or her arrest. Thus, Respondent's determination and revocation of Petitioner's license was arbitrary and capricious. Respondent asserts, in its cross-motion to dismiss, that the “two-hour” limitation is only applicable where a driver is incapable of consenting because they are either unconscious or too intoxicated to have the capacity to give consent, which is not the case here. Respondent asserts that since Petitioner admittedly refused the chemical test, his license was properly suspended and the findings of the ALJ and Appeals board were not arbitrary or capricious.
A plain reading of the statute supports Petitioner's interpretation. The text of a statute is “the best evidence of the Legislature's intent[, and, a]s a general rule, a statute's plain language is dispositive” (DeVera v. Elia, 152 A.D.3d 13, 19, 56 N.Y.S.3d 609 [3rd Dept. 2017], quoting Matter of Polan v. State of NY Ins. Dept., 3 N.Y.3d 54, 58, 781 N.Y.S.2d 482, 814 N.E.2d 789  ). Furthermore, “a statute ‘must be construed as a whole and ․ its various sections must be considered together and with reference to each other’ ” (id., quoting Matter of Shannon, 25 N.Y.3d 345, 351, 12 N.Y.S.3d 600, 34 N.E.3d 351 [internal quotation marks and citations omitted]; Matter of Notre Dame Leasing v. Rosario, 2 N.Y.3d 459, 464, 779 N.Y.S.2d 801, 812 N.E.2d 291  ).
VTL § 1194(2)(a), or the “implied consent” provision of the statute, provides that all New York drivers are deemed to have consented to a chemical breath test within two hours after he or she is arrested on suspicion of driving while intoxicated, or within two hours after the administration of a preliminary breath test. Accordingly, if a driver refuses to consent to the test within that time frame—assuming proper warnings were given of the consequences beforehand—the driver has revoked that deemed consent and thus he or she incurs civil penalties including driver's license revocation. It logically follows that following this two-hour period, a driver is no longer deemed to have consented to a chemical test, and thus the driver cannot be subject to civil penalties for refusing to take the test (see People v. D.R., 23 Misc. 3d 605, 606–07, 872 N.Y.S.2d 911 [Sup. Ct., Bx. County, 2009] ).
The First Department in People v. Rosa recognized that the “implied consent” provision of the statute is subject to a two-hour limitation (112 A.D.3d 551, 977 N.Y.S.2d 250 [1st Dept. 2013], lv. den., 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917  )1 . The Court expressly stated: “[b]ecause more than two hours had passed since defendant's arrest, the officer who administered the breathalyzer should not have advised defendant that, if he refused to take the test, his driver's license would be suspended and the refusal could be used against him in court” (id. at 552, 977 N.Y.S.2d 250). The Court nevertheless determined that the defendant's consent to the test was voluntary because, “[m]ost significantly, without any coercive conduct by the officer, defendant first agreed to take the test before the officer gave inappropriate warnings” (id. [emphasis added] ). While this language has been deemed non-binding dicta in a recent Supreme Court decision relied upon by Respondent, the unanimous First Department's rationale for coming to its ultimate conclusion may be considered persuasive authority, as it is indicative of how the Court would rule on this precise issue.
Furthermore, in the context of an Article 78 proceeding such as this one, the First Department acknowledged the application of the “two hour” rule concerning a driver's chemical test refusal (see Iovino v. Martinez, 39 A.D.3d 311, 312, 835 N.Y.S.2d 36 [1st Dept. 2007] ). In that case, as in this one, the petitioner challenged the revocation of his license following his refusal to submit to a chemical test. Petitioner argued that the respondent's revocation determination was unsupported by substantial evidence, in part, because the request to submit to the test was taken more than two hours after the arrest (Pet./Appellant Brf., at Part B). The Court considered this argument but held that it was “without merit” because “[petitioner's] refusal clearly took place within two hours of his arrest” (id.).
While this Court acknowledges the existence of sharp disagreements within the trial and appellate-level courts concerning the applicability of the two-hour rule, this Court is bound by the First Department decisions cited herein in the absence of contrary determinations on this precise issue by the Court of Appeals. In People v. Smith, the Court recognized that “drivers have a qualified right to decline to voluntarily take that chemical test provided they have an understanding that this refusal will result in the immediate suspension and ultimate revocation of the motorist's driver's license for a period of one year” and “will permit the People to elicit evidence of such refusal at any subsequent criminal trial” (see People v. Smith, 18 N.Y.3d 544, 548–49, 942 N.Y.S.2d 426, 965 N.E.2d 928  ). The Court further noted that there are no time restrictions on the admission of the results of a court-ordered chemical test, or any additional test conducted by a physician at the behest of the motorist (id., citing VTL § 1194 and  [b] ). Further, if a defendant-driver agrees to take the test voluntarily, there is no per se bar to admission of the results even if the test was administered more than two hours after the arrest (id., at fn. 1, citing People v. Atkins, 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213  ). However, the Court also expressly stated that the “implied consent provision governing when a motorist ‘shall be deemed to have given consent to a chemical test’ does contain a two-hour limitation” (id. at fn. 1, citing, e.g., People v. Hall, 61 N.Y.2d 834, 473 N.Y.S.2d 959, 462 N.E.2d 136  [where a blood test was performed on an incapacitated motorist within two hours of his arrest following a motor vehicle accident, test results were properly admitted at trial on an implied consent theory] ).
This Court has not found any clear Court of Appeals authority supporting Respondent's proposition that the two-hour limitation found in the implied consent provision is only applicable where a driver is incapacitated and thus incapable of consenting to a chemical test, as held by the Second Department in People v. Robinson, 82 A.D.3d 1269, 1270, 920 N.Y.S.2d 162 [2nd Dept. 2011] ). The First Department in Rosa and Iovino, supra, did not make such a distinction or discuss the defendant driver's capability of consenting to the chemical test. While VTL § 1194(2)(f) contains no time limitation, it cannot be deemed to contradict the language of VTL § 1194(2)(a), which does contain such a limitation. People v. Kates, relied on by Respondent, only held that police officers do not have to give unconscious individuals the opportunity to revoke his or her deemed consent to a chemical test (53 N.Y.2d 591, 595–96, 444 N.Y.S.2d 446, 428 N.E.2d 852  [quoting Report of Joint Legislative Committee on Motor Vehicle Problems, McKinney's 1953 Session Laws of NY, pp 1912–1928] ). That decision did not go further and hold that the “implied consent” provision of VTL only applies to unconscious or incapacitated drivers. Moreover, the legislative history of the statute, including its 1970 revision, does not clearly support the notion that the “implied consent” provision was meant to only apply to incapacitated drivers or that the “two hour” limitation is inapplicable under these circumstances (see 1970 Session Laws of NY).
Moreover, Respondent's June 29, 2012 opinion of counsel is not binding and Respondent does not argue that it is entitled to deference under these circumstances. Where, as here, the question presented by the petition is “one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” (see Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 403 N.E.2d 159  ). Under these circumstances, “the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent” (see Matter of Gruber [New York City Dept. of Personnel–Sweeney], 89 N.Y.2d 225, 232, 652 N.Y.S.2d 589, 674 N.E.2d 1354  ).
In light of the foregoing, this petition states a valid claim, and thus Respondent's cross-motion to dismiss is denied. CPLR 7804(f) expressly provides that, where a motion to dismiss is denied, “the court shall permit the respondent to answer, upon such terms as may be just” (see Matter of Rappo v. City of NY Human Resources Admin., 120 A.D.2d 339, 342, 501 N.Y.S.2d 669 [1st Dept. 1986] ). Respondent is therefore directed to file and serve an answer to the petition within thirty (30) days after service of a copy of this Order with Notice of Entry.
The above constitutes the Decision and Order of this Court.
1. As noted by Respondent, the same statutory language applies to criminal cases as well as test refusal hearings.
Mary Ann Brigantti, J.
Response sent, thank you
Docket No: 250444/2017
Decided: April 06, 2018
Court: Supreme Court, Bronx County, New York.
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