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THE PEOPLE WERE NOT GIVEN THE OPPORTUNITY TO RESPOND TO THE ISSUE WHETHER THE CHEMICAL BREATH TEST SHOULD BE SUPPRESSED; NEW SUPPRESSION HEARING ORDERED (FOURTH DEPT).

The Fourth Department, on an appeal by the People, determined County Court should not have suppressed the chemical breath test evidence in this DWI case because the People were not given an opportunity to respond to that suppression issue. The matter was remitted for a new suppression hearing:

… [T]he court erred in granting that part of defendant’s omnibus motion seeking to suppress evidence because the court failed to notify the People of its intention to consider that issue and failed to give the People an opportunity to present evidence at the hearing on that issue … . At the Huntley hearing, the issues of the officer’s compliance with Vehicle and Traffic Law § 1194 and defendant’s limited right to counsel were merely ancillary. Moreover, we reject defendant’s contention that the limited evidence that was admitted at the hearing supports the court’s determination to suppress the chemical breath test results. The evidence at the hearing established that the police administered a field breath test and then a chemical breath test at the jail, only the latter of which is the subject of section 1194 (2) (a) and would be admissible at trial … , but the court conflated the administration of both tests in determining that suppression was warranted. On this record, it is unclear whether the officer complied with section 1194 (2) (b) by warning defendant of the consequences of refusal in ” ‘clear and unequivocal language’ ” before administering the chemical test … . The record is also unclear whether defendant, who made a request to speak with his attorney, was afforded the opportunity to do so prior to deciding whether to submit to the chemical breath test … . People v Williams, 2021 NY Slip Op 01570, Fourth Dept 3-19-21

 

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