Article 78 challenging license suspension for “refusal” after 2 hours.

Issue: Does the 2-hour rule in Vehicle and Traffic Law § 1194(2)(a)(1), authorizing a chemical test to be taken from a motorist based upon deemed consent, apply to Department of Motor Vehicles (DMV) license revocation hearings held pursuant to VTL § 1194(2)(c) after a motorist’s refusal to submit to a chemical test.?

Held: The same phrase “such chemical test” as used in different subsection of the same statute, VTL 1194(2)(c), governing license revocation hearings at DMV did not have the same meaning and the 2-hour rule was not applicable.

VTL 1194(2)(a) provides the statutory framework for the admissibility of refusals in criminal proceedings and administrative license revocation proceedings at DMV. Under the deemed consent provision in (2)(a)(1), police are only authorized to take a chemical test from a motorist suspected of driving under the influence of alcohol within 2 hours.

In People v. Odum, 31 NY3d 344 (2018), Court held that because a “refusal” can only be made during the 2-hour period of deemed consent, refusals are only admissible in criminal proceedings under VTL 1194(2)(f) when made during the same 2-hour period. Although subsection (2)(f) does not contain a 2-hour limit, the Court held that the legislature’s use of the phrase “such chemical test” in (2)(f) meant a chemical test pursuant to VTL 1194(2)(a)(1), or, within 2 hours.

Despite the clear language of the statute, the Court looked at legislative history, finding that the 2-hour limitation and the deemed consent provision were previously in two different statutory sections (and ignoring that the 2-hour limitation always applied to revocation proceedings, irrespective of its placement within the statute). Court found the Legislature had a strong police concern for facilitating the taking of the tests, deterring motorists from refusing chemical tests and removing drunk drivers from the road. As well, the 2-hour rule originated as an evidentiary concern over the probative value of chemical tests for use in criminal prosecution.

Court found was Odum not controlling because the phrase “such chemical test” in VTL § 1194(2)(c) was the original language used when the license revocation rule was first formulated in 1953, long predating the inclusion of the 2-hour evidentiary rule in the deemed consent provision of VTL § 1194 in 1970.

Court also found DMV’s longstanding interpretation of the statute limiting license revocation to refusals within 2 hours (until the 2012 internal Memo changing it position) irrelevant because the Court is not required to defer to an agency’s interpretation of plain statutory language and legislative intent.

Judge Rivera dissent: “There is no textual basis for concluding that the exact same language means something different in these two paragraphs.” The chemical test authorized in VTL § 1194(2)(a) is the same chemical test cross-referenced later, in paragraphs (c) and (f) concerning administrative hearings and criminal proceedings, respectively. Courts of this state and the DMV concluded the same for decades.

CAL Observes: This is a policy-based decision and the statutory interpretation cannot be squared with the rules of statutory interpretation or Odum as Judge Rivera’s dissent explains.