DECISION AND ORDER The Defendant, Ibrahima Jalloh, is charged with two counts each of Assault in the Third Degree (PL §120.00[2] and PL §120.00[3]), Operating a Motor Vehicle while Intoxicated, common law (VTL §1192.3) and Operating a Motor Vehicle while Impaired (VTL §1192.1). The Defendant moves to preclude evidence of the Defendant’s verbal refusal to submit to a blood test, arguing that statements of refusal are subject to the notice requirements of CPL §710.30[1][a], because the Defendant has a Constitutional right to refuse to have his blood drawn. Specifically, the Defendant contends that the prosecution’s act of withdrawing previously served notice pursuant to CPL §710.30[1][a] effectively precludes the People from being able to offer his statement of refusal into evidence. It is the Defendant’s contention that his statement — “no tests” — in response to law enforcement’s request to submit to a blood test are subject to the same constitutional protections afforded when a Defendant makes a statement to law enforcement. This Court does not hold that same belief. Procedural History The motion now before this Court arose from an alleged incident that occurred on January 6, 2018 at approximately 5:30 a.m. After the Defendant allegedly crashed into the back of a marked routine motor patrol occupied by two New York City Police Officers and injuring those officers, another Police Officer, Officer Mancuso, responded to the scene and observed the Defendant sitting behind the wheel of Defendant’s vehicle. On the way to the hospital, Officer Mancuso observed the Defendant to have bloodshot, watery eyes and noticed a strong odor of alcohol coming from the Defendant. Once at the hospital, Officer Houle, also from the New York Police City Department asked the Defendant if he would submit to a chemical examination by providing a blood sample. The Defendant orally refused by stating, “no test, I’m not taking a test.” The Defendant was then told by Officers that if he persisted in his refusal, the Defendant’s license would be suspended and his refusal to submit to the test could be introduced as evidence in a court of law. The Defendant allegedly persisted in his refusal. On January 6, 2018, at the Defendant’s arraignment, the People served statement notice pursuant to CPL §710.30[1][a], informing the Defendant of their intention to use certain statements against him if the case proceeded to trial. The substance of the statement related to the Defendant’s refusal to take a take a blood alcohol test at the hospital. On June 28, 2019, just prior to the commencement of various pre-trial hearings, the People withdrew their statement notice served pursuant to CPL §710.30[1][a] and specified that they did not intend to introduce the Defendant’s statements as previously indicated (the People also indicated on the same date that they would not be seeking to introduce marijuana that was allegedly recovered from the Defendant’s person). The Defendant then argued for preclusion of the statement in its entirety. A motion schedule was set by this Court to resolve the issue of whether the Defendant’s statement of refusal should be precluded based on the People’s withdrawal of their statement notice and accordingly ascertain the parameters of any subsequent hearings. Preclusion CPL §710.30[1][a] sets forth a statutory requirement for the People to provide notice to the Defendant within fifteen days of his arraignment of any involuntary statement made by the Defendant to law enforcement. The primary purpose of the requirement is to allow for the Defendant to investigate the circumstances surrounding the statements and whether they were compelled, and therefore in violation of the Defendant’s constitutional rights (see CPL §710.30[1][a]; People v. Briggs, 38 NY2d 319, 323 [1975]). When the people withdraw previously filed CPL §710.30 notice, those statements are effectively rendered inadmissible on the People’s direct case, as the constitutionality of those statements will not be litigated. Here, the Defendant argues that because the People withdrew their previously served statement notice, those statements should now be deemed precluded at the subsequent trial. The Defendant’s analysis is premised on the contention that a refusal to submit to a blood test can be involuntarily made because VTL §1194[2] essentially punishes an individual for refusing a chemical blood test. Indeed, VTL §1194[2][f] statutorily recognizes an individual’s choice to refuse to a submit to a blood test, but a refusal, however, imposes certain civil penalties — the automatic revocation of an individual’s license and permitting evidence of the refusal to be admissible at trial. In doing so, the legislature has essentially provided a method to recognize a Defendant’s option to refuse, while balancing the safety of others on our roadways and therefore, has not created a so called, absolute right to refuse.1 The Defendant’s contention that VTL §1194[2][f] curtails an individual’s right under the Fourth Amendment by punishing them for exercising their right to refuse, is misplaced. A suspected intoxicated driver is offered a choice by the police to take a chemical analysis test and is unlike the situation the Defendant analogizes in his motion; a person who refuses to allow the police to conduct a warrantless search of their home is justified in that every individual is afforded Fourth amendment constitutional protection from an unreasonable search and seizure of their person or home. The same parallel is not true when a person is faced with a choice of whether to participate in an offered a chemical analysis test. A Defendant’s privilege to operate a motor vehicle on the public roadways of is based upon the premise that he impliedly consents to a chemical analysis of his blood if the situation requires (VTL §1194[2]). Although the Defendant is permitted to refuse to submit to a blood test, the right to refuse to submit to a chemical test is not a constitutional right guaranteed by our state or federal constitution. It is well settled that the right to refuse is not constitutionally protected (VTL §1194[2][f]; People v. Thomas, 46 NY2d 100, 109 [1978]; People v. Peeso, 266 AD2d 716, 717 [1999]) and statements of refusal, although testimonial, are not involuntarily made within the definition of CPL §60.45. Thus, the Defendant’s refusal to take a blood alcohol test cannot be deemed compelled and involuntary, and thereby do not trigger the statutory requirements of CPL §710.30[1][a]. Further, absent exigent circumstances, the People are permitted to obtain blood test results protected by the physician-patient privilege pursuant to the issuance of a valid subpoena duces tecum or search warrant, upon a showing that they have a reasonable basis to believe the Defendant was operating a motor vehicle while under the influence (CPL §690.10; CPLR §4504; VTL §1194; People v. Casadei, 66 NY2d 846 [1985]).2 The Defendant has not requested a Mapp hearing at this juncture, however this Court will consider an argument for any such request. Accordingly, the People’s withdrawal of statement notice pursuant to CPL §710.30[1][a] does not warrant preclusion of the Defendant’s statement. By conducting a refusal hearing to determine whether the Defendant’s statement of refusal was voluntary and free of any compulsion, the Defendant is sufficiently provided with an opportunity to examine the relevant issues and circumstances surrounding his refusal. Dated: July 26, 2019 New York, New York
