by Axel Bührmann

The People of the State of New York, Plaintiff, v. George P. Kelty, Defendant

District Court of New York, First District, Nassau County

June 30, 1978

Facts:

Defendant was charged with driving under the influence. Defendant made an omnibus motion to suppress a statement allegedly made by the defendant and the results of a breathalyzer test given to the defendant, on the grounds that it was illegally performed.

Issue:

Whether defendant’s Motion to suppress a statement should be allowed?

Discussion:

The court found that the police had probable cause for the arrest and there was enough evidence for the jury to find that the breathalyzer test was performed within two hours after arrest.  It is clear that there is no constitutional prohibition against giving such a test without defendant’s consent.  Thus, the right of refusal is not a personal privilege but an accommodation to avoid a distasteful struggle to forcibly take blood, breath or saliva.  It is a qualified statutory right whereby the defendant and police may avoid the unpleasantness connected with administering a test to an unwilling subject.  The People have shown the legality of the police action by satisfying the court that they had probable cause for the arrest and performed the test within two hours of arrest.  Since the defendant’s consent is deemed, the People need only show that the test was given, that it was performed after an arrest based upon probable cause and within two hours of that arrest.  In order to sustain his motion to suppress, defendant had the burden of going forward to show that the test was given, even though the defendant refused to take it.  This defendant has failed to do and has not met the burden necessary to suppress a chemical test which he claims he had refused.

Accordingly, the motion to suppress the chemical test is denied.

The court ruled that defendant had the ultimate burden of proving that the evidence should be suppressed. Further, the court held that the state showed the legality of the police action by satisfying the court that they had probable cause for the arrest and performed the test within two hours of arrest. Also, the court found that in order to sustain his motion to suppress defendant had the burden of going forward to show that the test was given, even though defendant refused to take it. The court denied the motion to suppress, concluding that defendant failed to meet the burden necessary to suppress a chemical test which he claimed he had refused.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.