Suspected of driving while impaired, Howard Smith declined to take a sobriety test until he had an opportunity to speak with his attorney.
During Smith's trial, the prosecutor argued that Smith's insistence on consulting with counsel--who was unreachable--comprised a "persistent refusal to submit to a chemical test." And, after he was found guilty of "driving while ability impaired," Smith appealed.
Because the efforts to contact an attorney weren't successful, the Appellate Term, Second Department, thought the prosecutor was permitted to introduce evidence of Smith's refusal to cooperate. (It also thought the evidence established Smith's guilt beyond a reasonable doubt.)
Doubt he felt all right .
To view the Appellate Term's Decision, please use this link: People v. Smith