Opinion
# 2016-015-608 Claim No. 123416
05-27-2016
DOUGLAS W. OWEN v. THE STATE OF NEW YORK
Longeretta Law Firm By: David A. Longeretta, Esquire Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Senior Attorney
Synopsis
Claim alleging false arrest, imprisonment and malicious prosecution following claimant's arrest for DWI was dismissed following trial. Police established probable cause for claimant's DWI arrest although blood tests performed at hospital were negative.
Case information
| UID: | 2016-015-608 |
| Claimant(s): | DOUGLAS W. OWEN |
| Claimant short name: | OWEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Caption is amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123416 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Longeretta Law Firm By: David A. Longeretta, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | May 27, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Douglas W. Owen, seeks damages for false arrest, false imprisonment and malicious prosecution following his arrest for driving while intoxicated (hereinafter "DWI"). The claim was bifurcated and this decision relates solely to liability.
The claimant testified that at approximately 6:00 p.m. on August 17, 2013 he and his then fiancée drove to Syracuse, New York, to have dinner at the Mission Restaurant. They arrived at the restaurant at approximately 6:45 p.m. where they had dinner and the claimant consumed a single bottle of beer. Approximately 1 ½ hours later they left the restaurant and went to a nearby bar where the claimant consumed a second beer and a glass of ginger ale. Claimant testified that he and his fiancée left the bar at approximately 11:30 p.m. to drive home. After entering the New York State Thruway the claimant, who was driving, turned south onto Route 31 at which time he observed flashing lights and noted a sobriety checkpoint being operated by the New York State Police. Claimant's vehicle joined the queue and proceeded to the point at which a New York State Trooper was standing interviewing vehicle operators as they passed. The trooper requested by non-verbal command that the claimant roll down his window. In response, claimant rolled his window down "about two inches" (Tr. p. 91). The claimant described his initial encounter with the trooper as follows:
References to the trial transcript are indicated herein by (Tr.). --------
"He asked me where I was going, I said, home. And he said I need you to roll the window down. I said I can hear you just fine. He said I know you can hear me just fine but I need you to prove that you haven't been drinking before I let you proceed" (Tr. p. 91).
Claimant testified that the trooper next inquired why his registration sticker was not affixed to his vehicle's windshield. Claimant retrieved the registration sticker from his glove box and handed it to the trooper through the two inch opening in the driver's side window. The trooper then asked the claimant whether he had "anything to drink tonight". The claimant did not respond to the inquiry. When asked at trial why he did not respond to the trooper the claimant stated "I'm aware that at that checkpoint there's been people that if they answer that they've been drinking at all they are not allowed to drive" (Tr. p. 92). The trooper then asked the claimant whether he had anything to drink and the claimant again failed to respond to the question. When the trooper asked why the claimant would not respond to his inquiry the claimant stated "I don't have to" (Tr. p. 93). The trooper then indicated that he smelled alcohol emanating from the vehicle and directed the claimant to pull up ahead and to the right, onto the shoulder of the road. The claimant complied with the trooper's order, parked his car and turned the car off. The trooper joined the claimant and requested his driver's license. Claimant retrieved his license from his wallet in his back pocket and handed it to the trooper through the two inch opening in the window. At that time the trooper inquired whether the windows of claimant's vehicle were tinted to which he responded in the affirmative. The trooper left claimant's vehicle and returned approximately two minutes later with a device used to determine the amount of tinting on car windows. When the trooper attempted to place the device on claimant's window, it would not fit through the two inch opening. According to the claimant, "I said, well turn it sideways and insert it, and this had a slot in it and then rotate it back, it will fit . . . Then he attempted to do that and it did bind up a little bit so I lowered it some and he measured the window, the tint" (Tr. p. 96). The trooper then stated that claimant's window was too heavily tinted under New York State law and that he would be receiving a ticket for excessive window tint. The trooper also asked the claimant, who was still wearing a lei he had first put on at the bar earlier in the evening around his neck, whether he had been to a luau. Claimant did not respond to the inquiry and the trooper again asked him whether he had anything to drink. The claimant again did not respond. According to the claimant, the trooper asked him why he would not respond to his question to which the claimant responded "because I don't have to" (Tr. p. 97). The trooper declared that he smelled alcohol on the claimant's breath and ordered him out of the car. Claimant opened the door with his left hand, activated the door locks with his right hand and then exited the vehicle. The trooper directed the claimant to the front of his vehicle and asked whether he had astigmatism before raising a small penlight level with the claimant's eyes. Claimant then instructed the trooper "I'm not doing any field sobriety test" (Tr. p. 98). Claimant denied that he needed any assistance in either exiting his vehicle or walking to the front of the vehicle as instructed by the trooper.
At this point, the trooper with whom the claimant had been interacting left for a short period and another trooper, later identified as Sergeant Nell, walked to the rear of the claimant's vehicle and then asked him whether the car had been in a fire previously. Claimant testified that he had noticed in the past that the paint on the license plate was flaking. He informed the sergeant that the car had been in an accident and "I think it cracked the paint and there's been moisture infiltration" (Tr. p. 101). The first trooper then returned and asked the claimant whether he had been previously arrested for DWI. When claimant responded in the affirmative the trooper requested that he take the portable Breathalyzer test. Claimant again instructed the trooper that he would not perform any field sobriety test. When the trooper asked why the claimant refused to take part in a field sobriety test, the claimant responded "because I don't have to" (Tr. p. 104). The trooper again inquired whether the claimant had anything to drink to which the claimant responded "I don't have to answer that" (Tr. p. 104). Claimant was placed in handcuffs, seated in a New York State Police SUV and taken to the New York State Police barracks in Oneida, New York.
Upon arrival at the State Police barracks, claimant was read his Miranda warnings and the trooper who arrested him, Trooper Robertson, began to process the claimant. Trooper Robertson left the claimant to provide assistance to another trooper who was attempting to process fingerprints, and another trooper, Trooper Dougherty, took over responsibility for entering data regarding claimant's arrest. Trooper Robertson returned after approximately 15 minutes and explained to the claimant that the State of New York had an implied consent law governing the taking of evidence of blood alcohol content. He offered the claimant either a blood draw or a Breathalyzer to which the claimant responded "[i]f I were sober I'd want the best and most reliable evidence possible so I think I'm going to have a blood draw" (Tr. p. 114). Claimant was placed in a State Police vehicle and transported to an outside hospital where his blood was drawn. Two samples were processed, one for the State Police and another which was retained by the hospital. Results of the blood test from the New York State Police Crime Lab, received by the claimant nine months following his arrest, indicated a blood alcohol content of 0.00.
Claimant was issued four tickets as a result of the incident described above including suspicion of DWI, failure to submit to a portable breath test, excessive window tint and failure to affix his registration sticker to the vehicle windshield. According to the claimant the DWI related charges were later dropped by the District Attorney. The charge of excessive window tint was dismissed after trial and the claimant paid a fine for failure to affix his registration sticker. With regard to certain statements attributed to the claimant in notices provided pursuant to Criminal Procedure Law § 710.30, claimant explained his statement, "if I were sober", by stating "I was reflecting out loud what would a sober person do? They would get the best blood alcohol evidence available" (Tr. p. 119). As to the statement "I'm drunk" allegedly made at Oneida Healthcare, the claimant testified "I kind of wanted to draw attention to the fact that a completely sober person is being processed for DWI" (Tr. p. 120).
On cross-examination, the claimant testified he had only two beers during the course of the evening. He acknowledged that his registration was not affixed to his vehicle's windshield. He also acknowledged that the ticket issued for excessively tinted windows indicates a value of 28%.
Karen Scott, claimant's then-fiancée, now his wife, testified in substantially the same manner as the claimant. She stated that claimant consumed a beer at the restaurant and had a "drink" at a nearby bar afterward (Tr. pp. 148-149). She did not detect the odor of alcohol on the drive home and denied that claimant's speech was slurred (Tr. p. 152) or that he grabbed onto anything in order to maintain his balance (Tr. p. 157). Ms. Scott did state, however, that claimant's face "often flushes red, so his face may have been a little bit red, but his eyes were fine" (Tr. pp. 149-150).
Trooper Miles J. Robertson testified that he received instruction in identifying signs of intoxication as a cadet at the New York State Police Academy and during his subsequent field training. He estimated that he had made "over a hundred" arrests (Tr. p. 176) for driving while intoxicated between his graduation from the State Police Academy in 2002 and August 18, 2013.
According to the witness, he was one of several officers manning a sobriety checkpoint on Route 31 in the Town of Verona, Oneida County, on August 18, 2013. At approximately 12:40 a.m. the claimant's car pulled up to the location where Trooper Robertson was standing interviewing drivers as they proceeded through the checkpoint. At this time the trooper observed that the vehicle's registration sticker was not affixed to the windshield and the windows were tinted. The trooper stepped up to the driver's side door and attempted to communicate with the claimant, who lowered his window "roughly an inch" (Tr. p. 178). When asked what happened next the trooper testified "[s]ame thing I did with every other vehicle that came through, asked some basic questions, where you heading to, where you coming from" (Tr. p. 179). Claimant informed the officer he was on his way home but refused to state where he was coming from. Trooper Robertson requested claimant's license and registration which were handed to him through the window. Having observed two potential vehicle and traffic law violations, the Trooper directed claimant to move his vehicle to the shoulder of the roadway. He then left the claimant and returned to his State Police vehicle where he ran a check on the claimant's license and registration and returned to the claimant's vehicle with a tint meter used to determine the extent of tinting on car windows. He explained to the claimant that he needed to place the device on the window and requested that the claimant lower the window. Claimant lowered the window "a little bit more" but the device still would not fit within the space provided. He was eventually able to place the meter on the driver's side window and at that time detected "a stronger odor of alcohol emanating from the vehicle" (Tr. p. 183). He asked the claimant how much he had to drink that night but no answer was provided. The trooper informed the claimant that his windows were excessively tinted and requested that he exit the vehicle. Trooper Robertson testified that as claimant exited the vehicle, the claimant used his right arm to steady himself and again used his right hand against the fender of his car to provide support as he walked to the front of his vehicle. The trooper stated that having observed these actions "[a]t that point I believe that he was impaired by something" (Tr. p. 187). Once claimant was standing in front of his vehicle the witness advised him that he was going to administer a horizontal gaze nystagmus field sobriety test. The claimant at that time indicated his refusal to participate in the test. Trooper Robertson states that at this time the claimant's eyes were watery and extremely bloodshot, his speech "appeared to be slurred" and his face was flush (Tr. p. 188). Based upon his observations of the claimant, it was Trooper Robertson's opinion that he was intoxicated under the provisions of Vehicle and Traffic Law § 1192 (3). Having reached this conclusion, the trooper placed the claimant under arrest and transported him to the New York State Police barracks in Oneida.
Upon arrival at the barracks the claimant, who had declined an Alco-Sensor breath test at the sobriety checkpoint, was provided his Miranda warnings and asked to consent to a formal blood test. Claimant stated that he would not take the breath test because of concerns regarding its accuracy but that he would submit to a blood test.
The witness testified that he recorded certain statements of the claimant which are set forth in a notice provided pursuant to Criminal Procedure Law § 710.30. The first, "[i]f I were sober" was spoken by the claimant during processing and the second to staff at the Oneida Healthcare Emergency Room when the claimant responded "I'm drunk" (Tr. p. 193) in response to questions regarding the purpose of his admission. He also provided a time line of the evening in which the claimant arrived at the sobriety checkpoint at 12:40 a.m., was placed under arrest at 12:48 a.m. and had his blood drawn at 2:22 a.m.
Trooper Robertson denied that he considered the claimant's refusal to perform field sobriety tests or to respond to his questions in determining whether to charge him pursuant to Vehicle and Traffic Law § 1192 (3). Rather, according to the trooper, he determined to charge the claimant based on his physical observations of him at the scene, including detecting the smell of alcohol. He acknowledged that blood test results received from the State Police laboratory indicated claimant's blood alcohol content was .00.
On cross-examination Trooper Robertson testified that while at the State Police Academy he received instructions on identifying signs of intoxication including glassy eyes, impaired speech and motor coordination and the odor of alcohol. He estimated that he had participated in four sobriety checkpoints prior to August 2013 and had received checkpoint operations training. He is aware that the main purpose of sobriety checkpoints is to promote public awareness and that prior to conducting a sobriety checkpoint a briefing is held to instruct the troopers manning the checkpoint regarding the procedures to be employed.
The witness was directed to Exhibit 6, the New York State Police DWI Program Guide. He testified that he understood from his training that it is not illegal for individuals who have consumed alcohol to operate their vehicle. He also had been trained that individuals entering a sobriety checkpoint should not be pulled from line for further inquiry unless there is a reasonable suspicion the driver is intoxicated or impaired. He agreed that the DWI Program Guide (Exhibit 6) does not permit an officer to take a person out of line at a sobriety checkpoint simply for having consumed an alcoholic beverage. He further agreed that the guide provides that a vehicle operator who refuses to lower his or her window should be pulled over for further investigation and that claimant, having lowered his window one to two inches had, in fact, complied with the trooper's request that the window be lowered. Trooper Robertson testified that he attended a briefing held by Sergeant Nell prior to conducting the subject sobriety checkpoint. The issue of a motorist who lowers his or her window only slightly in response to a request was not addressed in the briefing.
Having testified on direct examination that he first detected the odor of alcohol while attempting to place a tint meter on claimant's driver's side window, the witness was presented with his prior deposition testimony where he answered "I believe so, yes" in response to a question whether he smelled alcohol prior to directing the claimant to pull his vehicle to the shoulder of the road (Tr. pp. 223 - 224). In this regard, Trooper Robertson testified at trial "I couldn't testify to the fact that I initially smelled it at the initial stop" (Tr. p. 225). The trooper denied that he intended to arrest the claimant because he was being noncooperative at his initial stop. He did not recall advising the claimant that he needed to lower his window so he could verify he had not been drinking, although he acknowledged "that could be, that could be possible" at his examination before trial (Tr. p. 228). He also testified at his deposition that he could not recall whether the claimant's speech was slurred although he was firm in his recollection at trial where he testified that, in fact, claimant's speech was slurred on the day in question.
The trooper testified that he discussed whether the claimant should be taken into custody with Sergeant Nell who indicated the decision was up to Trooper Robertson's discretion. He acknowledged that he testified during his deposition that he continued to smell alcohol emanating from the claimant while he was being transported to the State Police barracks. He denied the phrase "if I were sober" set forth in the 710.30 notice was part of a larger statement to the effect that a blood test provides the best possible evidence of intoxication. He acknowledged that he had stated to the claimant that he was aware individuals have a right not to answer a police officer's questions and that he complimented the claimant for being cooperative throughout the process.
Sergeant Scott A. Nell was the next witness to testify. Sergeant Nell has been a member of the New York State Police since 1988 and was supervising the sobriety checkpoint on Route 31 on August 17, 2013. He testified that he observed Trooper Robertson had stopped a vehicle on the side of the road and recalled that Trooper Robertson subsequently indicated to him that the driver of the vehicle was uncooperative. Sergeant Nell testified that he spoke to the claimant and that when he asked him why he was being uncooperative the claimant responded that he was not legally required to speak. At this time he smelled the odor of alcohol on the claimant's breath and observed that his eyes were watery and his responses to questions appeared to be delayed. In speaking with Trooper Robertson, Sergeant Nell informed him that he had smelled alcohol on the claimant's breath but that the decision whether to arrest him for driving while intoxicated was up to the trooper. Sergeant Nell granted permission for the claimant to be taken to an outside hospital for a blood test following his refusal of a breath test at the State Police barracks.
On cross-examination the witness agreed that the primary purpose of a sobriety checkpoint is to promote public awareness. Uncooperative drivers were not discussed at the briefing held on August 17, 2013 because all individuals manning the checkpoint were experienced troopers. In interacting with the claimant Sergeant Nell observed that his eyes were watery and bloodshot and that his breath smelled of alcohol, although he did not note claimant's speech to be slurred. In his view, the claimant was likely borderline for DWI and the determination whether to charge him was left to Trooper Robertson's discretion.
Trooper Timothy Dougherty testified that he assisted Trooper Robertson in processing the claimant at the State Police barracks. He testified that during his interaction with the claimant he observed that his face was flushed and red, his eyes were "quite" bloodshot and that his speech was deliberate and carefully chosen. He did not recall smelling an odor of alcohol on the claimant's breath.
On cross-examination Trooper Dougherty testified that he did not recall that the claimant's speech was slurred, only that it was deliberate.
Doctor Gregory Cartledge is an emergency department physician employed at Oneida Healthcare who treated the claimant in the early morning hours of August 18, 2013. Referencing Exhibit 5A, statements regarding the history, physical examination and disposition of the claimant at Oneida Healthcare, Dr. Cartledge testified that he detected no nystagmus during his examination of the claimant's eyes. He described nystagmus as an abnormal movement of the eyes which can often be associated with alcohol consumption. Referencing his notes Dr. Cartledge testified that he did not observe that the claimant's eyes were bloodshot nor did he notice the smell of alcohol while treating him. He described the claimant as alert and oriented. He agreed that his examination notes do not indicate that the claimant had bloodshot eyes, smelled of alcohol, or that his speech was slurred. He testified that the claimant's blood test results indicated less than 5 milligrams of alcohol per deciliter, equivalent to a blood alcohol content of .005. Referring to Exhibit 5A, the doctor testified that the document contains a table which indicates the effects of alcohol based on a scale from 20 milligrams per deciliter up to 400 milligrams per deciliter.
On cross-examination, Dr. Cartledge could not recall being unable to identify the claimant at his examination before trial. In this regard he testified "I can only say now that I've seen Mr. Owen it refreshes my memory from that point of view" (Tr. p. 29). He testified that he has not received training in determining whether a patient is intoxicated based upon signs of intoxication and agreed that his purpose in meeting with the claimant was not to determine whether, in fact, he was intoxicated. He also agreed that the computer system employed by Oneida Healthcare does not contain drop boxes for notations regarding glassy or bloodshot eyes or impairment of motor coordination. The witness was then asked regarding a nursing note contained on page 5 of Exhibit 5 which indicates the claimant's conjunctiva was "pink and without exudate". He identified the conjunctiva as a mucus membrane covering the front of the eyeball and the sclera or white portion of the eye.
On redirect examination the doctor testified that the fact the conjunctiva is determined to be pink is not indicative of intoxication. He also stated that despite the use of drop boxes, medical providers at Oneida Healthcare are not prevented from adding any additional notes they may wish.
Finally, on re-cross-examination, the witness was presented with his deposition testimony in which he stated that he could not recall whether the claimant's speech was slurred or his eyes were bloodshot and glassy. He responded in the same manner to a deposition question which asked if the claimant appeared to be intoxicated in the witness' professional medical opinion. When asked at trial "[d]octor, to sum up you don't specifically recall observing Mr Owen on August 18, 2013, correct?", the witness responded "correct" (Tr. p. 48).
Jeannette Pozniak was employed as an emergency room nurse by Oneida Healthcare on August 18, 2013. She testified that blood drawn for law enforcement purposes is performed by an emergency room nurse using materials provided in the form of a kit by law enforcement officers. She did not independently recall interacting with the claimant on the morning of August 18, 2013 and identified Exhibit 5 as patient clinical data which she entered while treating the claimant. When asked by the Court what she could recall of interacting with the claimant, Ms. Pozniak responded "[j]ust doing his blood. And I don't even really, I don't recall him he was one of many" (Tr. pp. 61-62). As a result she testified to her findings as contained in Exhibit 5, including those findings that the patient was alert and oriented. She described the notation that claimant's conjunctiva was pink and without exudate as indicating that his eyes "weren't tearing, they weren't glassy. They were within normal limits" (Tr. p. 65).
The witness appeared to indicate that the fact that an individual's conjunctiva is pink does not necessarily mean that his or her eyes are bloodshot or red. Referring again to Exhibit 5, the witness indicated that her notes reflect that the claimant's behavior was appropriate, his level of consciousness was oriented as to person, place and time and there were no abnormalities with regard to the claimant's speech. Although she has had no formal training with regard to identifying signs of intoxication, Ms. Pozniak testified that she is aware of the general identifying characteristics of intoxication. In this regard, she agreed that she did not note on Exhibit 5 that the claimant's speech was slurred, that his eyes were glassy, motor coordination impaired, or that he smelled of alcohol.
On cross-examination the witness confirmed that she does not recall interacting with the claimant on August 18, 2013. She agreed that her purpose in examining the claimant was not to determine whether he exhibited signs of intoxication. She also agreed that the computer system at Oneida Healthcare does not provide drop boxes for indicating the odor of alcohol, slurred speech or impaired motor coordination. Finally, she agreed that her notes reflect that at the time of her examination of the claimant she noted that his conjunctiva was not white, but pink.
On redirect examination the witness testified that the fact that the claimant's sclera was pink does not mean that his eyes were bloodshot. According to Ms. Pozniak it means "that it's not clearly white. It could mean multiple things" (Tr. p. 77). She stated that nothing in the Oneida Healthcare computer system prevents providers from entering additional notations on medical history forms. She stated that it was her habit to look for signs such as slurred speech, bloodshot eyes and impaired motor coordination when treating an individual brought to the hospital for a blood test by law enforcement. Reviewing Exhibit 5 she testified that she made no such entries in her notes regarding her treatment and interaction with the claimant.
A claimant unlawfully deprived of his or her " 'freedom from restraint of movement' " may bring an action for false arrest and imprisonment (De Lourdes Torres v Jones, 26 NY3d 742, 759 [2016], quoting Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). To establish such causes of action a claimant must show that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d at 456). With respect to the fourth and most difficult element to prove, an arrest is privileged if it is supported by probable cause (see De Lourdes Torres v Jones, 26 NY3d 742; Gisondi v Town of Harrison, 72 NY2d 280, 283 [1988]; Broughton v State of New York, 37 NY2d at 458). A warrantless arrest gives rise to a presumption that the arrest and confinement were unlawful and the burden is on the defendant to prove otherwise (Broughton v State of New York, 37 NY2d at 458).
While both false arrest and malicious prosecution are "kindred actions, each protects a different personal interest and is composed of different elements" (id. at 456). Whereas false arrest and imprisonment "protects the personal interest of freedom from restraint of movement", . . . "[t]he tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation" (id. at 456). Although the elements of a cause of action for malicious prosecution differ from the elements of a cause of action for false arrest, both require the absence of probable cause to prevail.
"The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (De Lourdes Torres v Jones, 26 NY3d at 760, [internal quotation marks and citations omitted]; see also Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]; Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). As stated by the Court of Appeals in De Lourdes Torres v Jones, " 'Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed' by the suspected individual" (26 NY3d at 759, quoting People v Bigelow, 66 NY2d 417, 423 [1985]; People v Bohacek, 95 AD3d 1592 [3d Dept 2012]). In the context of this case, probable cause existed if the arresting officer demonstrated reasonable grounds to believe that the claimant had been driving in violation of Vehicle and Traffic Law § 1192 (3) (People v Fenger, 68 AD3d 1441, 1442 [3d Dept 2009]; People v Kowalski, 291 AD2d 669, 670 [3d Dept 2002]). The standard to be applied is whether it is more probable than not that the claimant was intoxicated (People v Vandover, 20 NY3d 235, 239 [2012]). Probable cause must be judged under the totality of the circumstances and does not require proof beyond a reasonable doubt (People v Bohacek, 95 AD3d at 1593).
As a threshold matter, claimant failed to establish that the DWI checkpoint where his vehicle was stopped did not meet constitutional requirements (see People v Scott, 63 NY2d 518 [1984]). There was no proof establishing that the sobriety checkpoint was operated in an arbitrary or non-uniform manner, the applicable guidelines of the subject police agency were inadequate or provided officers unfettered discretion, or that the checkpoint did not provide adequate notice to approaching drivers. Nor was there proof that the checkpoint was established for an impermissible purpose.
Claimant was charged with driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3).
"A person is intoxicated within the meaning of section 1192 (3) when 'he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver' " (People v Fratangelo, 23 NY3d 506 [2014], quoting People v Cruz, 48 NY2d 419, 428 [1979]; see also People v Farnsworth, 134 AD3d 1302 [3d Dept 2015]).
Whether charged with driving while intoxicated under Vehicle and Traffic Law § 1192 (3) or driving while ability impaired under § 1192 (1) "scientific evidence of blood alcohol content . . . is not essential" (People v Cruz, 48 NY2d at 425). Thus, laymen and those charged with administering the law "should be able to determine whether the defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should" (id. at 428).
Here, upon consideration of the totality of circumstances, the Court finds that probable cause existed to arrest the claimant for driving while intoxicated. Claimant's vehicle was stopped by Trooper Robertson and claimant was asked to pull his vehicle to the side of the roadway only after the trooper observed two potential Vehicle and Traffic Law violations; too dark window tint and a failure to display the vehicle's registration sticker. Trooper Robertson credibly testified that claimant initially refused to roll down the window more than an inch and, when he did, "a strong odor of alcohol" emanated from the vehicle (Tr. p. 183). Moreover, Trooper Robertson testified that as the claimant exited the vehicle, he used his right arm to steady himself and again used his right hand along the fender of his car to provide support as he walked to the front of his vehicle. Trooper Robertson also described claimant as having watery bloodshot eyes, slurred speech and a flushed face. Sergeant Nell, who supervised the sobriety checkpoint and spoke to the claimant also detected the smell of alcohol and observed that the claimant's eyes were watery and his responses to questions delayed. The fact that claimant's chemical blood test later revealed that he, in fact, was not above the legal limit does not warrant a contrary conclusion because "[a] party may act with probable cause even though mistaken . . . if the party acted reasonably under the circumstances in good faith" (Colon v City of New York, 60 NY2d 78, 82 [1983]). Having observed his testimony at trial, the Court concludes that, under the circumstances present at the time, Trooper Robertson acted reasonably in concluding that it was more probable than not the claimant was intoxicated (cf. People v Farnsworth, 134 AD3d 1302; People v Taylor, 104 AD3d 603 [1st Dept 2013], lv denied 21 NY3d 947 [2013]; People v Carota, 93 AD3d 1072 [3d Dept 2012]; People v Wallgren, 94 AD3d 1339 [3d Dept 2012]; People v Fenger, 68 AD3d 1441; People v Kowalski, 291 AD2d 669). Inasmuch as defendant met its burden of establishing probable cause for the claimant's arrest, claimant's causes of action alleging false arrest, imprisonment and malicious prosecution must be dismissed.
Moreover, to the extent claimant alleges a cause of action for negligent training or supervision, the law is settled that "where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training" (Timothy Mc. v Beacon City Sch. Dist., 127 AD3d 826 [2d Dept 2015]; see also Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]). Since it is undisputed that Trooper Robertson was acting within the scope of his employment at the time of the arrest, the claim for negligent training or supervision must be dismissed.
Based on the foregoing, the Court concludes that the claimant failed to establish his claims by a preponderance of the credible evidence. Accordingly, the claim is dismissed.
Let judgment be entered accordingly.
May 27, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims