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“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

 

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