You are here: / / “REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION...
, ,

“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of “refusing a breath test,” explained that it is not a cognizable offense. The court noted that it was obligated to correct this fundamental error which cannot be waived, even though the issue was not briefed on appeal:

… [T]he purported traffic infraction to which defendant pleaded guilty under count two of the indictment—refusing the breath test mandated by Vehicle and Traffic Law § 1194 (1) (b)—is not a cognizable offense for which a person may be charged or convicted in a criminal court … . People v Adams, 2022 NY Slip Op 00562, Fourth Dept 1-28-22

Same issue in People v Harris, 2022 NY Slip Op 00568, Fourth Dept 1-28-22

 

You might also like
QUESTIONS OF FACT PRECLUDED SURROGATE’S FINDING THAT THREE JOINT BANK ACCOUNTS WERE PART OF THE ESTATE AS OPPOSED TO JOINT ACCOUNTS WITH RIGHT OF SURVIVORSHIP (FOURTH DEPT).
Ordinance Imposing a Duty Upon Abutting Property Owners to Keep Sidewalks in Good Repair Raised a Question of Fact whether a Defect Caused by a Tree Root Should Have Been Repaired by the Defendant—The Defect Was Not So Significant As to Allow a Determination of Defendant’s Liability as a Matter of Law
COUNTY COURT’S DETERMINATION THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT IS NOT REVIEWABLE AFTER A CONVICTION BASED UPON LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).
THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT).
DEFENDANT WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO ATTEND THE TRIAL AND DIRECTING DEFENSE COUNSEL NOT TO PARTICIPATE IN THE TRIAL; A TWO-JUSTICE DISSENT CONCLUDED DEFENSE COUNSEL’S FAILURE TO PARTICIPATE CONSTITUTED INEFFECTIVE ASSISTANCE (FOURTH DEPT).
PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT).
THE CASUALTY CLAUSE IN THE LEASE DID NOT APPLY TO EXCUSE DEFENDANT-TENANT’S NONPAYMENT OF RENT DURING THE COVID PANDEMIC; THE FORCE MAJEURE, FRUSTRATION OF PURPOSE AND UNCLEAN HANDS DOCTRINES ALSO DID NOT APPLY (FOURTH DEPT). ​
SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS MODIFICATION OF CUSTODY PROCEEDING, FATHER PRESENTED SUFFICIENT EVIDENCE... PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE...