Opinion
No. 2010SU54729.
2012-12-12
The PEOPLE of the State of New York, v. Jacqueline VAUGHAN, Defendant.
Thomas J. Spota, III, Suffolk County District Atty. by Jeffrey S. Panasci, Asst. District Atty., Central Islip. Robert C. Mitchell, Esq., Legal Aid Society Of Suffolk County, Inc. by Melissa C. Mercurio, Esq., Central Islip.
Thomas J. Spota, III, Suffolk County District Atty. by Jeffrey S. Panasci, Asst. District Atty., Central Islip. Robert C. Mitchell, Esq., Legal Aid Society Of Suffolk County, Inc. by Melissa C. Mercurio, Esq., Central Islip.
JOHN ANDREW KAY, J.
A combination Dunaway, Huntley and refusal hearing was held in this case on December 5, 2012. Suffolk County Police Officers Michael Turansky and Douglas Nassisi testified on behalf of the People. The Court makes the following findings of fact and conclusions of law based upon the credible evidence adduced at the hearing.
Findings of Fact
On December 1, 2010, Officer Turansky was on patrol in the Central Islip area when he received a radio transmission requesting that he assist with a traffic stop on Half Mile Road in Central Islip, Town of Islip, County of Suffolk. Officer Turansky arrived at the scene at approximately 8:25 p.m. and observed that a vehicle was stopped in the middle of a narrow intersection, facing northbound on Half Mile Road. The vehicle blocked access to a Junior High School and prevented traffic from proceeding through the intersection. Officer Turansky observed that a female, whom he identified in court as the defendant, was in the driver's seat, that the keys were in the ignition and the engine was running. The officer also observed that there was a male passenger.
An officer already at the scene told Officer Turansky that the officers had approached the vehicle because it was blocking the intersection, and that when they ran a DMV check on the vehicle it turned up as unregistered. The supervisor at the scene instructed Officer Turansky to go to the driver's side of the vehicle and watch the female suspect while the other officers dealt with the male passenger. Officer Turansky approached the vehicle and asked the defendant for her driver's license, which she produced. The officer smelled alcohol on the defendant's breath and asked her if she'd been drinking. The defendant answered that she'd had two glasses of wine with dinner.
Officer Turansky asked the defendant to exit the vehicle for field sobriety tests, and observed that her eyes were bloodshot and glassy, her speech was slurred, she was unsteady on her feet and there was a strong odor of alcohol on her breath. At one point she had to lean on her vehicle to maintain her balance. The officer administered several field sobriety tests to the defendant, including the horizontal gaze nystagmus (HGN) test, the walk and turn test and the one-legged stand test. During his testimony the officer had difficulty articulating the instructions he gave to the defendant and the clues he was looking for during her performance of each of the tests. The officer testified that the defendant did not follow his instructions during the tests she performed, that she did not perform the one-legged stand test, and that in his opinion she failed each of the tests.
Officer Turansky also administered a field breath test to the defendant and testified that she did not follow his instructions on how to blow into the instrument. The defendant gave one quick puff instead of a sustained breath, which produced a deficient sample with a reading of .05. After several unsuccessful attempts the defendant stated “I can't take the test, I smoke.” The officer did not write the serial number of the portable breath test instrument in his paperwork and did not recall which instrument he had used.
Officer Turansky concluded that the defendant was intoxicated, placed her under arrest for Driving While Intoxicated and transported her to the Fourth Precinct. At 9:42 p.m., Officer Turansky read the “chemical test request” portion of the Alcohol/Drug Influence Report (AIR) to the defendant (People's exhibit “1” in evidence) and the refusal warning printed on the form. The defendant agreed to take a breath test and signed the form indicating her consent to take the test. Officer Turansky then arranged for a breath tech operator to administer the test.
Officer Nassisi is a certified breath technician and was on duty at the Fourth Precinct on December 1, 2010 when he was asked to administer a breath test to the defendant. Officer Nassisi spoke with the defendant and observed that an odor of alcohol was emanating from her and that her speech was slurred. She indicated to him that she had consented to take a breath test. Officer Nassisi first administered an HGN test to the defendant and observed the six clues indicating that she had ingested alcohol. Officer Nassisi monitored the defendant for twenty minutes, and then at 10:24 p.m. he explained to her how to take the breath test, showed her how to use the mouthpiece and told her that she was to keep blowing into it until the tone stopped, which would be in eight to ten seconds. The defendant indicated that she understood the officer's instructions. Upon taking the test, however, she gave a quick puff of air and then failed to blow, so that the tone stopped on the instrument. Officer Nassisi observed that the defendant was pretending to blow into the mouthpiece. The officer told her that her failure to continuously blow air would constitute a refusal and asked her to try again. She was given several opportunities but merely pretended to blow into the mouthpiece without producing an air sample, and then said that she was not going to blow any more. The defendant never stated that she was unable to perform the test. After two minutes the instrument timed out and the display indicated that a deficient sample had been provided with a reading of .04.
Conclusions of Law
Where a defendant's vehicle is already stopped, the police need only an articulable reason to approach the vehicle and make an inquiry. See, People v. Williams, 167 A.D.2d 236 (1st Dept.1990), lv. den. 77 N.Y.2d 883 (1991); People v. Fabian, 178 A.D.2d 544 (2d Dept.1991), lv. den. 79 N.Y.2d 919 (1992). The location of the defendant's vehicle, in the middle of the roadway blocking an intersection, provided an articulable reason for the officers to approach the vehicle. Under the “fellow officer rule,” Officer Turansky was entitled to rely upon the other officers' observations that the defendant's vehicle had been found stopped in the middle of the roadway, and their observations may be imputed to Officer Turansky in determining the constitutionality of his conduct. See, People v. Messado, 286 A.D.2d 447 (2d Dept.2001), lv den. 97 N.Y.2d 657 (2001); People v. Mims, 88 N.Y.2d 99 (1996); People v. Soviero, 5 AD3d 404 (2d Dept.2004).
Officer Turansky's temporary roadside detention of the defendant was properly based on the information communicated to him by the officers at the scene, as well as on his own observations of the vehicle's location, that the defendant was in the driver's seat with the engine running, and her physical condition. The Court has disregarded the officer's testimony regarding the field performance tests and portable breath test results for purposes of this hearing, but finds that Officer Turansky's independent observations of the odor of alcohol on the defendant's breath, her slurred speech, bloodshot and glassy eyes, unsteadiness on her feet, and her admission that she'd consumed alcoholic beverages, provided the officer with probable cause to arrest the defendant for Driving While Intoxicated. See, People v. Kowalski, 291 A.D.2d 669 (3rd Dept.2002); People v. Kalwiss, 6 Misc.3d 129A, 2005 N.Y. Slip Op 50057U (App. Term, 9th & 10th Jud. Dists.2005); People v. McClaney, 135 A.D.2d 901 (3rd Dept.1987); CPL 140.10(1). Accordingly, evidence obtained as a result of defendant's stop and arrest is not subject to suppression for lack of probable cause.
A defendant who has been temporarily detained for a roadside investigation, including a suspected driving while intoxicated offense, is not considered to be in custody, and Miranda warnings are not required for the limited questioning appropriate to such an investigation and the administration of performance tests. See, People v. Mackenzie, 9 Misc.3d 129A, 2005 N.Y. Slip Op 51535U (App. Term, 9th & 10th Jud. Dists.2005), lv. den. 5 NY3d 807 (2005); People v. Myers, 1 AD3d 382, 383 (2d Dept.2003), lv. den. 1 NY3d 631 (2004); People v. Parris, 26 AD3d 393 (2d Dept.2006), lv. den. 6 NY3d 851 (2006). The defendant's temporary detention was permissible and non-custodial in nature, and Officer Turansky was not required to administer Miranda warnings before conducting his investigation. The defendant's roadside statement that she'd only had two glasses of wine with dinner was voluntarily made and is admissible at trial. See, People v. Mathis, 136 A.D.2d 746 (2d Dept.1988), lv. den. 71 N.Y.2d 899 (1988); see also, People v. Swan, 277 A.D.2d 1033 (4th Dept.2000), lv. den. 96 N.Y.2d 788 (2001); People v. Kearney, 288 A.D.2d 398 (2d Dept.2001); People v. Noonan, 220 A.D.2d 811 (3rd Dept.1995).
In order for evidence of a defendant's refusal to submit to a chemical test to be admissible at trial, the People must show that the request was made within two hours of the defendant's arrest or within two hours after a breath test ( see,VTL 1194[2][a]; People v. Brol, 81 A.D.2d 739 [4th Dept.1981] ), and that the defendant “was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that [she] persisted in the refusal.” VTL 1194(2)(f); see, People v. Thomas, 46 N.Y.2d 100, 108 (1978). The timeliness of the chemical test request is not at issue here. A defendant's refusal to submit to a chemical test may be evidenced by words or conduct. People v. Massong, 105 A.D.2d 1154 (4th Dept.1984). To establish a refusal where a defendant has consented to a breath test but a sufficient sample has not been obtained, the People “must show that the failure to register a sample is the result of defendant's action and not of the machine's inability to register the sample.” People v. Adler, 145 A.D.2d 943, 944 (4th Dept.1988), app. den. 73 N.Y.2d 919.
Although the defendant verbally consented to a chemical test, she performed the test in such a manner as to prevent a sufficient sample from being obtained. Her repeated failure to blow into the mouthpiece with enough air to produce a tone, even after being informed that this conduct would constitute a refusal, was evidence of her persistent refusal to submit to the test, as was her spontaneous statement that she was not going to blow any more. The officer's testimony was sufficient to establish that the instrument was working properly, as it sounded the tone and registered the deficient sample. See, People v. Adler, supra; People v. Mitchell, 308 A.D.2d 552 (2d Dept.2003), lv. den. 1 NY3d 576 (2003); VTL 1194(2)(f). The People have met their burden of demonstrating that defendant refused to take the chemical test and that she persisted in her refusal, and the Court accordingly finds evidence of the refusal to be admissible at trial. See,VTL 1194(2)(f); People v. Thomas, supra, 46 N.Y.2d at 108.
This constitutes the order and decision of the Court.
The parties are directed to appear on the New Court Date indicated below.