Does 'Privilage of Access' Mean That a Suspect Can Refuse alcohol Test Until a Lawyer Reaches the Scene ?
In People v. Gursey, 22 NY2d 224, 228 , the Court held that this "privilege of access" does not mean that a suspect has an "absolute right to refuse the test until a lawyer reaches the scene." (People v. Gursey, 22 NY2d, supra, at 229.)
"Where the defendant wishes only to telephone his lawyer or consult with a lawyer present in the station house or immediately available there, no danger of delay is posed" which might "nullify the statutory procedure requiring drivers to choose" between taking the test and a license suspension. (Supra, 22 NY2d, at 229.)
On the other hand, "if the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel." (Supra, 22 NY2d, at 229; see also, People v. DePonceau, 275 AD2d 994 [4th Dept 2000].)
Where a defendant requests "a named attorney" at a "late hour," it has been held that reasonable and sufficient efforts to contact that attorney twice, unsuccessfully, sufficiently discharges law enforcement's obligation to honor the request, and renders the uncounseled choice defendant made shortly thereafter, to refuse the test, admissible.
People v. O'Rama, 78 NY2d 270, 280  [a police officer's statement to a defendant "that his insistence on waiting for his attorney constituted a refusal" under the statute was accurate "when viewed in the context of defendant's statement to police that his attorney could not be contacted for several hours"--defendant held to have been "afforded an adequate opportunity to consult with counsel"];
People v. Kearney, 261 AD2d 638 [2d Dept 1999] [finding the officer's efforts to contact the defendant's attorney "reasonable and sufficient" without describing what those efforts were or at what time].