Judge Andrew M. Engel
Charged with reckless driving and refusing to take a breath test, Leontiev moved for dismissal of the charges and suppression of the results of a chemical breath test. Relying on People v. Salerno, Leontiev argued the charge of refusing to take a breath test, in violation of Vehicle & Traffic Law §1194(1)(b), was not a legally cognizable charge. The court disagreed, finding Leontiev’s reliance on Salerno misplaced, noting the decisions of the same Appellate Term deciding Salerno, and the Court of Appeals, which unequivocally recognized the failure to submit to a lawful request for a preliminary or portable breath test under §1194(1)(b), was a cognizable offense. The court stated following Leontiev’s argument would lead to the conclusion that refusal would have no sanctions, and such an interpretation would effectively “write out” of §§1194(2) and 1194(3) a positive field test as a predicate for a chemical test of a defendant’s breath, blood, urine or saliva, as provided by the legislature. It would also remove from police a tool for investigating accidents, similarly as intended by the legislature. Also, the court found the traffic information and supporting deposition set forth two distinct incidents of reckless driving, denying dismissal of one count as duplicative.
