Opinion
2008-1140 OR CR.
Decided June 29, 2009.
Appeal from an order of the Justice Court of the Town of New Windsor, Orange County (Donald J. Suttlehan, J.), dated March 6, 2008. The order granted defendant's motion to suppress evidence.
Order reversed, on the law, defendant's motion to suppress evidence denied, and matter remitted to the Justice Court for all further proceedings before a different judge.
PRESENT: RUDOLPH, P.J., TANENBAUM and NICOLAI, JJ.
The People charged defendant with two counts of driving while intoxicated (Vehicle and Traffic Law § 1192, [3]) and parking on the pavement (Vehicle and Traffic Law § 1201 [a]). After a pre-trial suppression hearing, the Justice Court determined that defendant's arrest was without probable cause and suppressed defendant's statements and the results of field sobriety and chemical blood alcohol tests. The People appeal.
Probable cause to arrest for violating Vehicle and Traffic Law § 1192 (1) requires proof that an accused, "by voluntarily consuming alcohol, . . . has actually impaired, to any extent, 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 Cruz, 48 NY2d 419, 427; see also People v McNamara, 269 AD2d 544, 545; People v Gingras , 22 Misc 3d 22 , 23-24 [App Term, 9th 10th Jud Dists 2008]). It is not necessary that the defendant be specifically so charged, only that the arresting officer have reason to believe that the defendant violated Vehicle and Traffic Law § 1192 ( People v Hilker, 133 AD2d 986, 987-988; see also People v Nesbitt , 1 AD3d 889 , 890). The testimony adduced at the hearing indicated that the first officer to reach the scene encountered defendant sitting in her damaged automobile in the northbound traffic lane of Route 32 in Orange County, New York. The key was in the ignition, the engine running, and defendant was attempting to operate her vehicle, without success. The officer asked defendant to desist in her efforts to drive, as, evidently unbeknownst to her, the automobile's front right wheel had become nearly detached from its axle. The officer asked defendant to exit her vehicle to examine the damage, and during their subsequent encounter, the officer detected motor impairment, a strong odor of an alcoholic beverage, and slurred speech. Defendant admitted to another officer, who also detected the strong odor of an alcoholic beverage, slurred speech, and signs of impaired motor coordination, that she had consumed two beers at a friend's house. These observations justified her arrest for driving while impaired ( People v Bagley, 211 AD2d 882, 883; People v Troche, 162 AD2d 483; People v McCarthy, 135 AD2d 1113, 1114; People v Blajeski, 125 AD2d 582; Villalobos v County of Nassau , 15 Misc 3d 135 [A], 2007 NY Slip Op 50751[U] [App Term, 9th 10th Jud Dists 2007]). Were these factors insufficient, defendant's failure to successfully perform field sobriety tests amply confirmed the officers' determinations that probable cause existed for defendant's arrest ( e.g. People v Schmitt, 262 AD2d 588). Whatever the significance, if any, of defendant's alleged pre-existing medical conditions with respect to defendant's ability to perform the field sobriety tests, they did not overcome the remaining indicia of alcohol consumption and thereby undermine a finding that there was probable cause to believe that defendant operated her vehicle in violation of Vehicle and Traffic Law § 1192.
Accordingly, the order is reversed, defendant's motion to suppress evidence is denied and the matter is remitted to the Justice Court for all further proceedings before a different judge.
Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur.