You are here: / / REFUSING TO SUBMIT TO A BREATH TEST IS NOT A CRIMINAL OFFENSE (FOURTH ...
,

REFUSING TO SUBMIT TO A BREATH TEST IS NOT A CRIMINAL OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on one count of the indictment, noted that “refusal to submit to a breath test” is not a criminal offense:

Defendant appeals from a judgment convicting him, upon a jury verdict, of … refusal to submit to a breath test (§ 1194 [1] [b]). As defendant contends and the People correctly concede, refusal to submit to a 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” … . Inasmuch as defendant was convicted by the jury of the nonexistent offense of refusal to submit to a breath test, we modify the judgment by reversing that part convicting him of count 3 of the indictment and dismissing that count … . People v Khadka, 2024 NY Slip Op 01402, Fourth Dept 3-15-24

Practice Point: Here in this DWI case, the defendant was convicted of refusing to submit to a breath test, which is not a criminal offense. Conviction reversed.

 

You might also like
CORPORATE OFFICER MAY BE PERSONALLY LIABLE FOR WRONGFUL EVICTION PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 853 (FOURTH DEPT).
DEFENDANT OWNS A VINEYARD IN WHICH PLAINTIFF WAS INJURED IN AN ALL-TERRAIN-VEHICLE ACCIDENT; DEFENDANT WAS ENTITLED TO IMMUNITY PURSUANT TO GENERAL OBLIGATIONS LAW 9-103 BECAUSE THE VINEYARD WAS “SUITABLE FOR RECREATIONAL USE” (FOURTH DEPT).
SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS, CRITERIA EXPLAINED.
GEORGIA BURGLARY STATUTE DOES NOT INCLUDE A KNOWLEDGE ELEMENT WHICH IS INCLUDED IN THE NEW YORK BURGLARY STATUTE; THE GEORGIA STATUTE CANNOT, THEREFORE, SERVE AS A PREDICATE FELONY.
THE AMENDMENTS TO THE ANTI-SLAPP STATUTES SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY TO DISMISS PLAINTIFF’S DEFAMATION COMPLAINT (FOURTH DEPT). ​
THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).
Relationship Between the “Open Repudiation [of Fiduciary Obligations] Rule” and the Laches Defense Explained/Allegations that Investments Made by the Fiduciary Underperformed Does Not State a Cause of Action for Breach of the Fiduciary Duty
Naming Different Victim Rendered Superior Court Information Jurisdictionally Defective

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT (PLUMBING PIPES) IS NOT SUBJECT... DEFENDANT WAS NOT INFORMED OF ALL THE DIRECT CONSEQUENCES OF THE GUILTY PLEA,...