People v. Steves

117 Misc. 2d 841, 459 N.Y.S.2d 402, 1983 N.Y. Misc. LEXIS 3220

Opinion

OPINION OF THE COURT

C. Benn Forsyth, J.

The defendant was charged with violation of section 1193-a of the Vehicle and Traffic Law for failure to take a so-called screening test. The facts are not in dispute. The defendant was arrested upon this charge and a charge of speeding. The court finds there was adequate cause to require a screening test under section 1193-a. The defendant refused to take the screening test and was given the ticket in question. The issue is whether or not a violation of section 1193-a is an infraction. The section has no punishment included.

The Court of Appeals has decided that there is no constitutional right to refuse to take an alcoholic test {People v Thomas, 46 NY2d 100). Section 1193-a requires no “commissioner warnings” to the effect that failure to take the test may result in a penalty. It is clear that the Legislature did not intend to permit a motorist to decline to take this test, if the proper circumstances were present. The court holds that the Legislature has placed upon the driver a constitutionally valid obligation. The failure to comply is as much a violation of this law as speeding or disobeying any other traffic law.

The remaining issue is whether the failure to specify the penalty prevents criminal enforcement. Section 1193-a does not state that the failure to take the test is a traffic infraction. However, section 1800 of the Vehicle and Traffic Law states that it is a traffic infraction (unless a misdemeanor is specified) for any person to violate any of the provisions of the Vehicle and Traffic Law. The court finds that this is a proper exercise of legislative authority and the provisions of section 1800 are incorporated into section 1193-a. The two sections together describe the offense and punishment. The court, therefore, finds the defendant guilty and sets the matter down for sentence on March 2, 1983 at 7:00 p.m.