Supreme Court, Bronx County, April 6, 2018

The Bronx Defenders (Linda B. Evarts of counsel) for petitioner.

Eric T. Schneiderman, Attorney General (Carrie Windland of counsel), for respondents.

The petitioner Pedro Endara-Caicedo moves for a judgment pursuant to article 78 of the CPLR vacating, annulling, and setting aside as unlawful, arbitrary and capricious, and an abuse of discretion, the determination of the Department of Motor Vehicles in case No. 1671281, appeal docket No. 37768, revoking petitioner's license to drive for at least one year and imposing upon petitioner a $500 civil penalty. The respondent New York State Department of Motor Vehicles cross-moves to dismiss the petition for failure to state a cause of action pursuant to CPLR 7804 (f) and 3211 (a) (7), or in the alternative, an order granting respondent 30 days from service of the petition to serve its answer. Petitioner opposes the cross motion.

The facts of this matter are not in dispute. On January 30, 2016, petitioner was arrested for driving while intoxicated. Nearly four hours after his arrest, police officers asked petitioner [*2]to take a chemical breath test (commonly referred to as a breathalyzer test). The officers read petitioner the standard "refusal warnings," based on Vehicle and Traffic Law § 1194 (2) (c), wherein they informed petitioner that if he did not take the test, his license would be revoked, whether or not he was subsequently found guilty of driving while intoxicated at trial. Petitioner refused to take the breathalyzer test.

On July 5, 2016, respondent conducted an administrative due process hearing to determine if petitioner's license was properly suspended for refusing to take the breathalyzer test. Petitioner argued that the "deemed consent" provision of Vehicle and Traffic Law § 1194 (2) (a) did not apply to any chemical test administered more than two hours after his arrest, and thus, he could not be penalized for his choice not to take the test nearly four hours after his arrest, as that choice could not{**59 Misc 3d at 986} constitute a "refusal" within the meaning of the Vehicle and Traffic Law. In a written decision dated July 19, 2016, the Administrative Law Judge (ALJ) found that petitioner refused to take a chemical test in violation of Vehicle and Traffic Law § 1194, and thus petitioner's license was revoked for at least one year. Petitioner appealed the ALJ's decision on August 25, 2016. On February 28, 2017, the Appeals Board affirmed the earlier decision, determining that the "two-hour rule" was inapplicable to the due process hearing. Respondent thereafter reinstated the revocation of petitioner's license and the imposition of a $500 civil penalty for his refusal to take a breathalyzer test.

Petitioner now moves for a judgment pursuant to article 78 of the CPLR, vacating, annulling, and setting aside as unlawful, arbitrary and capricious, and an abuse of discretion, the respondent's determination. Respondent has filed a pre-answer cross motion to dismiss the petition pursuant to CPLR 3211 (a) (7) and 7804 (f) for failure to state a cause of action.

This petition challenges the respondent's determination following a hearing pursuant to CPLR 7803 (3). The standard of review in this context is "whether the determination under review was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion" (see Matter of Resto v State of N.Y., Dept. of Motor Vehs., 135 AD3d 772, 773 [2d Dept 2016]). Courts will look to whether the determination " 'is without sound basis in reason and is generally taken without regard to the facts' " (Matter of Galaxy Bar & Grill Corp. v New York State Liq. Auth., 154 AD3d 476, 482-483 [1st Dept 2017]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). On a motion to dismiss made pursuant to CPLR 3211 (a) (7) and 7804 (f), all of the factual allegations in the petition are accepted as true, and the petitioner is afforded the benefit of every favorable inference (see Matter of Kunik v New York City Dept. of Educ., 142 AD3d 616, 617-618 [2d Dept 2016]). The sole criterion in determining such a motion is "whether the petition sets forth allegations sufficient to make out a claim that the determination sought to be reviewed was 'made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion' " (id., quoting CPLR 7803 [3]).

Vehicle and Traffic Law § 1194 (2) (a) (1) provides:

" '[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of . . . breath, blood, urine . . . or saliva . . . for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer . . . having reasonable grounds to believe such person to have been operating' a motor vehicle under the [*3]influence of alcohol or drugs and that such test occurs 'within two hours after such person has been placed under arrest for any such violation' " (Matter of Sherwood v New York State Dept. of Motor Vehs., 153 AD3d 1022, 1023 [3d Dept 2017]).

"If such person thereafter is asked to submit to a chemical test and refuses, despite being warned of the consequences of that decision, his or her license 'shall be immediately suspended and subsequently revoked' " (id. at 1023-1024, citing Vehicle and Traffic Law § 1194 [2] [b], and Matter of Cook v Adduci, 205 AD2d 903, 903-904 [3d Dept 1994], lv denied 84 NY2d 811 [1994]). The driver whose license was revoked is entitled to an administrative hearing where the issues are expressly limited to:

"(1) did the police officer have reasonable grounds to believe that such person had been driving [while under the influence of alcohol or drugs]; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person's license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test or any portion thereof" (id. at 1024, citing Vehicle and Traffic Law § 1194 [2] [c], and Matter of Berlin v New York State Dept. of Motor Vehs., 80 AD3d 911, 913 [3d Dept 2011]).

If, after the hearing, the ALJ finds all of these issues in the affirmative, the driver's license is immediately revoked (id., citing Vehicle and Traffic Law § 1194 [2] [c]).

{**59 Misc 3d at 988}Petitioner here contends that he did not "refuse" a chemical test in violation of Vehicle and Traffic Law § 1194 because it was not requested until nearly four hours after his arrest. Petitioner asserts that, according to the statute, a driver is only deemed to have consented to a chemical test that is requested within two hours after his or her arrest. Thus, respondent's determination and revocation of petitioner's license was arbitrary and capricious. Respondent asserts, in its cross motion to dismiss, that the "two-hour" limitation is only applicable where a driver is incapable of consenting because they are either unconscious or too intoxicated to have the capacity to give consent, which is not the case here. Respondent asserts that since petitioner admittedly refused the chemical test, his license was properly suspended and the findings of the ALJ and Appeals Board were not arbitrary or capricious.

A plain reading of the statute supports petitioner's interpretation. The text of a statute is "the best evidence of the Legislature's intent[, and, a]s a general rule, a statute's plain language is dispositive" (Matter of DeVera v Elia, 152 AD3d 13, 19 [3d Dept 2017], quoting Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54, 58 [2004]). Furthermore, "a statute 'must be construed as a whole and . . . its various sections must be considered together and with reference to each other' " (id., quoting Matter of Shannon, 25 NY3d 345, 351 [2015], citing Matter of Notre Dame Leasing v Rosario, 2 NY3d 459, 464 [2004]).

Vehicle and Traffic Law § 1194 (2) (a), or the "implied consent" provision of the statute, provides that all New York drivers are deemed to have consented to a chemical breath test within two hours after they are arrested on suspicion of driving while intoxicated, or within two hours after the administration of a preliminary breath test. Accordingly, if a driver refuses to consent to the test within that time frame—assuming proper warnings were given of the consequences beforehand—the driver has revoked that deemed consent and thus he or she incurs civil penalties including driver's license revocation. It logically follows that following this two-hour period, a driver is no longer deemed to have consented to a chemical test, and thus the driver cannot be subject to civil [*4]penalties for refusing to take the test (see People v D.R., 23 Misc 3d 605, 606-607 [Sup Ct, Bronx County 2009]).

The First Department in People v Rosa recognized that the "implied consent" provision of the statute is subject to a two-{**59 Misc 3d at 989}hour limitation (112 AD3d 551 [1st Dept 2013], lv denied 22 NY3d 1202 [2014]).^[FN*] The Court expressly stated: "[b]ecause more than two hours had passed since defendant's arrest, the officer who administered the breathalyzer test should not have advised defendant that if he refused to take the test, his driver's license would be suspended and the refusal could be used against him in court" (id. at 552). The Court nevertheless determined that the defendant's consent to the test was voluntary because, "[m]ost significantly, without any coercive conduct by the officer, defendant first agreed to take the test before the officer gave the inappropriate warnings" (id. [emphasis added]). While this language has been deemed non-binding dicta in a recent Supreme Court decision relied upon by respondent, the unanimous First Department's rationale for coming to its ultimate conclusion may be considered persuasive authority, as it is indicative of how the Court would rule on this precise issue.

Furthermore, in the context of an article 78 proceeding such as this one, the First Department acknowledged the application of the "two-hour" rule concerning a driver's chemical test refusal (see Matter of Iovino v Martinez, 39 AD3d 311, 312 [1st Dept 2007]). In that case, as in this one, the petitioner challenged the revocation of his license following his refusal to submit to a chemical test. Petitioner argued that the respondent's revocation determination was unsupported by substantial evidence, in part, because the request to submit to the test was taken more than two hours after the arrest (brief for petitioner-appellant, available at 2006 WL 4806643, *8-9). The Court considered this argument but held that it was "without merit" because "[petitioner's] refusal clearly took place within two hours of his arrest" (Iovino, 39 AD3d at 312).

While this court acknowledges the existence of sharp disagreements within the trial- and appellate-level courts concerning the applicability of the two-hour rule, this court is bound by the First Department decisions cited herein in the absence of contrary determinations on this precise issue by the Court of Appeals. In People v Smith, the Court recognized that drivers have a qualified right to decline to voluntarily take that chemical test provided they have an understanding that this refusal will result in the immediate suspension and ultimate revocation of the motorist's driver's license for a period of one year{**59 Misc 3d at 990} and "will permit the People to elicit evidence of such refusal at any subsequent criminal trial" (see People v Smith, 18 NY3d 544, 548-549 [2012]). The Court further noted that there are no time restrictions on the admission of the results of a court-ordered chemical test, or any additional test conducted by a physician at the behest of the motorist (id. at 548 n 1, citing Vehicle and Traffic Law § 1194 [3], [4] [b]). Further, if a defendant-driver agrees to take the test voluntarily, there is no per se bar to admission of the results even if the test was administered more than two hours after the arrest (id., citing People v Atkins, 85 NY2d 1007 [1995]). However, the Court also expressly stated that the "implied consent provision governing when a motorist 'shall be deemed to have given consent to a chemical test' does contain a two-hour limitation" (id., citing e.g. People v Hall, 61 NY2d 834 [1984] [where a blood test was performed on an incapacitated motorist within two hours of his arrest [*5]following a motor vehicle accident, test results were properly admitted at trial on an implied consent theory]).

This court has not found any clear Court of Appeals authority supporting respondent's proposition that the two-hour limitation found in the implied consent provision is only applicable where a driver is incapacitated and thus incapable of consenting to a chemical test, as held by the Second Department in People v Robinson (82 AD3d 1269, 1270 [2d Dept 2011]). The First Department in Rosa and Iovino, did not make such a distinction or discuss the defendant-driver's capability of consenting to the chemical test. While Vehicle and Traffic Law § 1194 (2) (f) contains no time limitation, it cannot be deemed to contradict the language of Vehicle and Traffic Law § 1194 (2) (a), which does contain such a limitation. People v Kates, relied on by respondent, only held that police officers do not have to give unconscious individuals the opportunity to revoke their deemed consent to a chemical test (53 NY2d 591, 595-596 [1981], citing Report of Joint Legislative Committee on Motor Vehicle Problems, 1953 McKinney's Session Laws of NY at 1912-1928). That decision did not go further and hold that the "implied consent" provision of Vehicle and Traffic Law only applies to unconscious or incapacitated drivers. Moreover, the legislative history of the statute, including its 1970 revision, does not clearly support the notion that the "implied consent" provision was meant to only apply to incapacitated drivers or that the "two-hour" limitation is inapplicable under these circumstances (see L 1970, ch 275, § 4).

{**59 Misc 3d at 991}Moreover, respondent's June 29, 2012 opinion of counsel is not binding and respondent does not argue that it is entitled to deference under these circumstances. Where, as here, the question presented by the petition is "one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency" (see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). Under these circumstances, "the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent" (see Matter of Gruber [New York City Dept. of Personnel-Sweeney], 89 NY2d 225, 231-232 [1996]).

In light of the foregoing, this petition states a valid claim, and thus respondent's cross motion to dismiss is denied. CPLR 7804 (f) expressly provides that, where a motion to dismiss is denied, "the court shall permit the respondent to answer, upon such terms as may be just" (see Matter of Rappo v City of N.Y. Human Resources Admin., 120 AD2d 339, 342 [1st Dept 1986]). Respondent is therefore directed to file and serve an answer to the petition within 30 days after service of a copy of this order with notice of entry.