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Just out: rare N.Y. Court of Appeals opinion re: D.W.I. stops and refusal to submit to a breathalyzer: Matter of Schoonmaker v. N.Y.S. Department of Motor Vehicles.

Photograph: Driver behind automobile steering wheel drinking a bottle of beer.

Someone clearly had enough money, interest and aggravation to take an administrative law determination on a traffic stop violation to New York State’s highest court, the Court of Appeals.  That rarely happens.

The case, Matter of Schoonmaker v. New York State Department of Motor Vehicles, 2019 N.Y. Slip Op. 02259 (Ct. App. 3-28-19), 2019 N.Y. LEXIS 614, involved the appellant Schoonmaker’s appeal of a Department of Motor Vehicles determination revoking his driver’s license for refusing to submit to a chemical test for driving while intoxicated in violation of N.Y. Vehicle and Traffic Law (“V.T.L.”) § 1194. 

At issue was the underlying predicate for the initial stop of Schoonmaker’s vehicle, and whether there was probable or reasonable cause to do so in the first instance -- which thereafter lead to Schoonmaker’s arrest for driving while under the influence of alcohol or drugs, pursuant to N.Y. V.T.L. § 1192.  

It must be understood that over and above prosecution for the D.W.I. arrest, refusal to submit to a chemical test (such as a “breathalyzer” to ordinary folks) upon suspicion of operating while under the influence of alcohol or drugs, can result in a later formal hearing at the N.Y.S. Department of Motor Vehicles to revoke the operator’s driver’s license.  This is an additional punishment for a driver’s refusal to comply with the police officer’s demand to submit to a breathalyzer test at the scene of the roadside stop.      

Schoonmaker was pulled over by a police officer for failure to remain in his lane, pursuant to N.Y. Vehicle and Traffic Law § 1128(a).  He contested the lawful basis and constitutionality of the police officer’s reason for the initial stop.  Why?  If there was no probably cause to pull him over in the first place, every other action thereafter, and all other evidence of criminality, refusal to submit to a chemical test, etc., must be dismissed as having been obtained without proper legal basis -- which lawyers call probable or reasonable cause.  That evidence is kept out pursuant to something called the “exclusionary rule.”  Schoonmaker had a smart lawyer who understood the exclusionary rule, and how and when it applies.

But the courts below, and the New York State Court of Appeals, were having none of it.  The Court of Appeals found the following about Schoonmaker’s initial stop:

“At the administrative hearing, testimony was elicited that, while on patrol at 1:00 AM on December 22, 2013, a police officer observed petitioner's vehicle ‘make an erratic movement off the right side of the road, crossing the fog line and [moving] off the shoulder [with the vehicle's] right front tire.’ Once the vehicle left the paved roadway — and with the right-hand turn signal on — the officer saw the vehicle immediately move left, returning to its original lane of travel. After observing that there was no animal or other obstruction of the roadway that would have explained the ‘erratic jerking action,’ the police officer pulled the vehicle over. During the stop, the officer noticed that petitioner smelled of alcohol and exhibited other signs of inebriation. Petitioner admitted that he ‘had a few drinks’ and asked the officer to give him a ride home, failing field sobriety tests and a preliminary breath test given at the scene. At the precinct, despite receiving the appropriate warnings, petitioner refused to take a chemical test, resulting in an administrative license revocation hearing. The police officer's testimony at the hearing, articulating credible facts to support a reasonable belief that petitioner violated Vehicle and Traffic Law § 1128(a) (failure to remain in lane), provided substantial evidence that he had probable cause to stop petitioner's vehicle [citations omitted].”

There was a single strong (and to this writer very persuasive) dissent in the Appellate Division, below, and one dissent at the Court of Appeals, that the initial stop was not lawful [“A single tire briefly crossing the fog line once does not constitute a violation of the Vehicle and Traffic Law and cannot provide a lawful predicate for the traffic stop.”  See, dissent by the Hon. Braithwait Nelson, at 165 A.D.3d 677, 679 (2d Dept. 2018)].  However, the majority of the Court of Appeals in the Schoonmaker case was not convinced, as set forth above. 

In addition, appellant Schoonmaker did not testify at the D.M.V. revocation hearing, as was his right.  However, the D.M.V. administrative law judge overseeing the hearing was thereafter allowed to draw a negative or adverse inference from Schoonmaker’s silence when making his or her final determination (i.e., the driver would have to testify truthfully to questions about how he operated his vehicle that night, how much he drank, etc.).  As the Court of Appeals noted, “Any negative or adverse inference that was drawn from [Schoonmaker’s] failure to testify at the administrative revocation hearing was permissible (see 15 NYCRR 127.5[b]).”

Those involved in law enforcement will be heartened by this decision.  Motor vehicle operators everywhere in New York should not. 

James Snyder