Defendant moves to suppress evidence of his alleged refusal to submit to a chemical test, at trial, arguing that New York Vehicle and Traffic Law ("VTL") sections 1194(2)(a) and 1194(2)(f) exist in violation of the Fourth Amendment to the Constitution of the United States; and Article I, section 12, of the Constitution of the State of New York.^[FN1]

The subject matter VTL provisions provide that "[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of . . . breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood" (VTL § 1194[2][a]); and that "[e]vidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred ninety-two of this article" (VTL § 1194[2][f]). The information in this case does involve such violations, as it charges Defendant with violating VTL § 1192(3) (operating a motor vehicle while intoxicated) and VTL § 1192(1) (operating a motor vehicle while ability is impaired by alcohol). This case involves Defendant's alleged refusal to submit to a chemical test, bringing the challenged VTL provisions into relevance.

The information alleges that Defendant was behind the wheel of a running vehicle on a public street and in a condition indicating intoxication and/or alcohol-related impairment. Defendant is alleged to have refused to submit to a requested chemical test of his blood. Significantly — for purposes of the within disposition — police officers respected that refusal and did not conduct a chemical test on Defendant to determine his blood alcohol content ("BAC"). Defendant moves to suppress evidence of his alleged refusal to submit to the test, at trial, on the [*2]asserted ground that New York's VTL provisions allowing admissibility of such evidence are unconstitutional.^[FN2]

As a prefatory matter, the issue of constitutionality of the subject VTL provisions has already been the subject of discussion by the Court of Appeals of the State of New York. In People v Thomas (46 NY2d 100, 103 [1978], appeal dismissed, Thomas v New York, 444 US 891 [1979]), the Court held that VTL § 1194(2)(f) "does not violate the defendant's privilege against self-incrimination under either the Federal or the State Constitution." (See also, id., at 110 [same].) The Court similarly held VTL § 1194(2)(a) to be constitutional (see, People v Kates, 53 NY2d 591 [1981]; see also, People v Thomas, supra, at 110 ["the admissibility of refusal evidence may also be viewed as a permissible condition reasonably attached to the grant of permission to operate a motor vehicle on the highways of the State."]). A governing principle regarding the constitutionality of legislative enactments is that they are "supported by a presumption of validity so strong as to demand of those who attack them a demonstration of invalidity beyond a reasonable doubt, and the courts strike them down only as a last unavoidable result" (Van Berkel v Power, 16 NY2d 37, 40 [1965]; see also, People v Davis, 43 NY2d 17 [1977], cert denied Davis v New York, 435 US 998 [1978]). "The substantial burden of proving unconstitutionality beyond a reasonable doubt rests with a statute's antagonist" (People v Scalza, 76 NY2d 604, 607 [1990] [citation omitted]). Defendant has failed to meet this burden in the instant matter.

The cases Defendant relies upon — Birchfield v North Dakota (__ US __, 136 S Ct 2160, 2016 WL 3434398 [2016]) and Missouri v McNeely (133 S Ct 1552 [2013]) — are wholly inapposite. Birchfield dealt with the laws of North Dakota ^[FN3] and Minnesota,^[FN4] which, unlike the subject matter New York laws, criminalize the refusal to submit to a chemical test. The Birchfield Court held that no state law may criminalize an individual's refusal to submit to a warrantless blood test. No such law exists in New York, where any penalties for refusing a chemical test to determine BAC are purely civil (license suspension pursuant to VTL 1194[2][b][3]) and evidentiary (VTL 1194[2][f]) in nature.

Indeed, Birchfield itself acknowledged the constitutional propriety of laws such as New York's VTL provisions underlying this case, noting that: "Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply" (Birchfield, supra, 136 S Ct at 2185).

McNeely, too, is inapposite, as it involved a BAC chemical test taken over the defendant's refusal. The McNeely Court held that nonconsensual warrantless blood tests can constitute a violation of the Fourth Amendment right to be free from unreasonable searches. McNeely, of course, is not germane to the instant matter, wherein no test was taken of the defendant over his refusal to submit to same.

Accordingly, Defendant has not met his substantial burden on his instant constitutional challenge to the subject matter New York State Vehicle and Traffic Law provisions. Therefore, it is hereby

ORDERED that Defendant's motion to suppress evidence of his alleged refusal to submit to a blood alcohol content test, on the assertion of unconstitutionality of VTL §§ 1194(2)(a) and 1194(2)(f), is DENIED.

This shall constitute the decision and order of the court.