DMV may revoke driver’s licenses for refusing to take a chemical test more than two hours post-arrest (Matter of Endara-Caicedo v. New York State Department of Motor Vehicles).

The question in this case is whether the Department of Motor Vehicles may revoke a driver’s license if a driver refuses to submit to a chemical test more than two hours after being arrested. In a 5–1 opinion, the Court (DiFiore, C.J.) held that DMV may revoke a driver’s license in such a situation. (Judge Troutman did not take part in the case.)

Pedro Endara-Caicedo was arrested for driving while intoxicated. Three hours later, he was asked to submit to a chemical test and warned that, if he refused to do so, his license could be suspended. Endara-Caicedo refused the test. After DMV revoked his license, Endara-Caicedo sought to annul DMV’s determination under CPLR article 78. Endara-Caicedo argued that because Vehicle and Traffic Law § 1194(2)(a)(1) provides that drivers are deemed to consent to chemical tests given “within two hours after [the arrestee] has been placed under arrest,” his refusal to submit to a chemical test three hours after his arrest could not be grounds to revoke his license. Supreme Court and the Appellate Division rejected that argument.

The Court of Appeals affirmed. It relied chiefly on VTL § 1194(2)(c), which lists the only four items an administrative law judge may consider in a license-revocation proceeding: (1) whether the police officer had reasonable grounds to believe that the driver was driving while intoxicated; (2) whether the driver was lawfully arrested; (3) whether the driver was adequately warned of the consequences of failing to submit to “such chemical test”; and (4) whether the driver “refuse[d] to submit to such chemical test.” Because those factors do not refer to the two-hour rule, the Court reasoned, the rule does not apply in administrative license-revocation proceedings.

The Court bolstered that conclusion with legislative history. It explained that the two-hour rule developed as an evidentiary rule: it was meant to ensure that only chemical tests with sufficient probative value—i.e., those taken within two hours of arrest—would be introduced at criminal trials. But that evidentiary concern is not implicated in license-revocation hearings.

Judge Rivera dissented. Like the majority, she focused on the statutory text, but she reached the opposite conclusion. Judge Rivera homed in on the phrase “such chemical test” in the provision enumerating the relevant factors in a license-revocation proceeding. Invoking case law holding that the word “such” refers back to the “last antecedent,” Judge Rivera reasoned that “such chemical test” must refer to the test described earlier in § 1194(2)—in § 1194(2)(a)(1), which provides that a driver is deemed to consent to a chemical test given within two hours of arrest. In other words, Judge Rivera believed that DMV may revoke a driver’s license for refusing a chemical test only if the test was offered within two hours of the driver’s arrest. To support that reading, Judge Rivera cited People v. Odum, a criminal case holding that the phrase “such chemical test” in a different subdivision of § 1194(2)—§ 1194(2)(f)—referred to chemical tests performed within two hours of arrest.