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Judge Beth Beller

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Olmo was charged with operating a motor vehicle while under the influence of alcohol or drugs, and a hearing was held to determine admissibility of statement and physical evidence, including the results of a blood test administered to him. A Judicial Hearing Officer (JHO) concluded statement evidence was admissible, physical evidence was appropriately obtained, and Olmo’s explicit consent to take a blood test, even after a two hour period, authorized police to administer the test rendering results admissible. The court agreed with, and adopted the JHO’s decision, but addressed an issue raised by defense the JHO did not address—that Olmo’s consent to take a blood test was involuntary, and the results should, thus, be suppressed. The court disagreed with defense’s arguments finding the two-hour rule within Vehicle & Traffic Law 1194(2)(a) did not apply if a defendant expressly and voluntarily consented to administration of a blood test. Thus, the notion it was improper for police to administer refusal warnings after two hours, rendering an otherwise voluntary consent involuntary, contradicted well-settled law established by the Court of Appeals. As Olmo was not incapable of consenting, the two-hour rule did not apply. Olmo’s motion was denied.