Opinion
Indictment No. 70826-24
11-25-2024
The People of the State of New York v. Abigail L. Belter, Defendant.
P. David Soares, District Attorney (Collin D'Arcy of counsel), for the People. Gerstenzang, Sills, Cohn & Gerstenzang (Eric H. Sills, Esq. of counsel), for defendant.
P. David Soares, District Attorney (Collin D'Arcy of counsel), for the People.
Gerstenzang, Sills, Cohn & Gerstenzang (Eric H. Sills, Esq. of counsel), for defendant.
Thomas Marcelle, Justice of the Supreme Court.
Defendant Abigail Belter drove her car into oncoming traffic and collided head-on with another vehicle. As it turned out, Belter had earlier ingested several different anti-depressants and in an amount impaired her. A chemical analysis of Belter's blood taken after the crash confirmed this fact. This test represents the keystone in the prosecution's case and without it, there is no case. So unsurprisingly, Belter seeks to suppress the chemical test results and seeks dismissal of the indictment.
Accordingly, the court held a suppression hearing, and the following facts were established. As noted, on December 17, 2023, at about 1:10 p.m., Belter crashed into the victim's car. The police responded quickly. Once Belter was safely out of her vehicle, Officer Robert Piazza asked her what happened. Belter recounted that she had been at her parents' house in Connecticut and had gotten up early to return home to Cohoes.
The facts are based upon Officer Piazza's testimony and the video exhibits introduced at the hearing. The facts implicitly resolve ambiguities in the testimony based upon the court's assessment of the officer's credibility. Additionally, the court, in its finding of the facts, makes a number of inferences that are be fairly derived from this evidence. Importantly, the court paid careful attention to the officer's and Belter's facial expressions, the rising and falling volume of their voices together with its tone and timbre. These non-verbal cues played no small part in the court's findings of fact, drawing of inferences and making conclusions derived therefrom.
To be specific, Belter had gone to bed at 8:00 p.m. on the 16th and rose at 6:00 a.m. on the 17th.
As for the accident, she explained that she grew tired, began to fall asleep and in her state of drowsiness, veered over the double yellow line into the wrong lane. When the officer inquired if Belter had consumed any drugs before driving, she admitted that she had taken a prescription anti-depressant (Trintellix) the evening before the accident.
Now, there is more to the story than what Belter conveyed to the officer. To begin with, she exhibited signs of physical impairment. The officer noticed that Belter's eyes were watery, her speech was abnormally slow, and she lacked basic motor skills. The most obvious of the latter impairment was Belter's handling of her dog she had been traveling with. The officer had removed the animal from Belter's car and gave it to her. Belter then made several halting attempts to loop the dog's leash around a nearby fire hydrant but failed, thereby making it necessary for Officer Piazza to complete the task for her. In short, it was clear something was not right with Belter.
Belter's air bag had deployed and it struck her. The deployment neither caused nor contributed to her manifested speech and coordination defects. Belter consistently denied that the airbag hit her in the head and, consistent with her denial, Belter's face was bereft of any lesion, abrasion or discoloring of any kind. This lends credence to the proposition that, just as Belter said, the airbag in her car did not hit her in her head. And the court so finds this as a fact.
Consequently, Piazza administered a field sobriety test. The manner in which the test was conducted and the results thereof, were subject to a probing cross-examination. In particular, the defense emphasized that the officer deviated from an ideal administration of the horizontal gaze nystagmus test. However, while the officer's performance of discrete subparts of the test may have been wanting, the court finds, when the test is considered in its totality, that Piazza reasonably, and accurately, concluded that Belter failed the test.
Armed with Belter's driving into an oncoming car, her slackened speech, her extraordinarily poor motor skills and coordination, her failed field sobriety test and her admission that she had taken an anti-depressant medication, Piazza informed Belter that she had to come to the police station for further examination. This was not an invitation-the officer told Belter that she was under arrest.
After issuing Miranda warnings to Belter, Piazza encouraged her to be honest about the drugs that she had consumed. Belter responded by admitting that she took a second medication amitriptyline (another anti-depressant) an hour before the accident as a "booster." At this point, Belter was placed into a squad car and transported to the police station for further interrogation and examination.
Once in the station, roughly an hour after the arrest, another officer performed a Drug Recognition Examination (DRE) which Belter failed. The new officer, naturally, had questions. In response to the questioning, Belter made multiple incriminatory admissions. First, she fessed up that she took three other drugs just a couple of hours before driving to Cohoes. Additionally, she contradicted her earlier excuse of drowsiness as the genesis of the crash; Belter said that the multiple medications had not made her sleepy. Moreover, she acknowledged that she was unfit to be driving. Finally, and most importantly, when the officer asked if she would be willing to have her blood drawn for a chemical analysis, Belter voluntarily agreed.
Some time passed between the initial consent and the blood draw. Indeed, just prior to testing, more than two hours had elapsed since the arrest. It was at this point that the police gave Belter the standard chemical refusal warnings. Belter was admonished that if she refused to surrender a blood sample, her license could be revoked and her refusal to take the test could be used against her at trial. Belter, post warning, once again consented to give her blood.
Eventually, the police drew Belter's blood for testing. The chemical test results were damning. The analysis confirmed that the drugs Diazepam and Nordiazepam, both central nervous system suppressants, were in Belter's blood at levels that would have impaired her ability to drive.
In due course, Belter moved to suppress the chemical test results on four grounds: (1) the police lacked probable cause to arrest her; (2) the police improperly administered Miranda warnings; (3) the police used coercive tactics in questioning her; and (4) the police gave the chemical test refusal warning more than two hours after arresting Belter which made the warning defective and which vitiated her prior consent. The court will address each point.
Probable Cause to Arrest Belter
Regarding probable cause, the Fourth Amendment promises that people are to be free from unreasonable searches and seizures. An arrest is, of course, the seizure of a person. For an arrest to be reasonable, and thus constitutional, it must be made either with a warrant or upon probable cause (see Atwater v City of Lago Vista, 532 U.S. 318, 354 [2001]). Probable cause exists when "facts and circumstances... make it more probable than not that a crime has taken place and that the one arrested is its perpetrator" (People v Stroman, 106 A.D.3d 1268, 1269 [3d Dept 2013]).
An arrest without probable cause transgresses the Fourth Amendment and such transgressions come with heavy penalties. Anything obtained as a product of an unconstitutional arrest (e.g., a confession, physical evidence, or an identification) is inadmissible in a criminal prosecution (see e.g. Dunaway v New York, 442 U.S. 200 [1979]). In particular, and as applicable here, blood samples (and test results derived from that blood) acquired from a person who was unlawfully arrested must be suppressed (People v Arevalo, 203 A.D.3d 943 [2d Dept 2022]).
Here, Belter argues that Officer Piazza lacked probable cause to arrest her for a violation of VTL 1192(4). This argument rests upon a statutory analysis-that is, Piazza lacked evidence sufficient to satisfy each element of the statute. Therefore, to evaluate this argument, a statutory breakdown is in order.
As is pertinent here, VTL 1192(4) prohibits a person from operating a motor vehicle while impaired by the use of a drug. The term drug means any substance listed in Public Health Law § 3306 (VTL 114-a). Thus, the statute requires proof of two components (1) operating a motor vehicle while impaired and (2) the impairment was caused by a drug listed in Public Health Law § 3306.
Consequently, given the statutory elements, Belter argues that in a DWAI drug case, probable cause requires more than a defendant driving while impaired by an unknown drug. Rather, in such a case, there must be reasonable cause to believe that a defendant drove while impaired by a drug specified in Public Health Law § 3306. The argument is serious and mandates careful attention.
Now, both sides concede that no controlling precedent exists. However, defendant offers non-binding precedent from the Appellate Term of the 9th and 10th Judicial Districts. In particular, People v Koszko, 57 Misc.3d 47 (App Term, 2d Dept, 9th & 10th Jud Dists 2017) had a fact pattern congruent with the one in this case. Thus, comparison of the facts seems warranted.
In Koszko, as here, the officer arrived at the scene of an accident. The officer learned from witnesses that the defendant appeared to be intoxicated and just prior to the accident the defendant operated his vehicle erratically-which mirrors Belter's behavior and driving. Defendant, like Belter, failed the horizontal gaze nystagmus. Moreover, the arresting officer, like Officer Piazza, had no training that allowed him to recognize the effects of drug ingestion. Finally, and unlike Belter in this case, defendant made no pre-arrest admissions of using drugs for mental health.
Based upon these facts, the Appellate Term found that "the arresting officer had no basis to believe that the ingestion of a drug listed in Public Health Law § 3306... was the cause of defendant's erratic driving prior to the accident, or of the accident, or of defendant's accident scene behavior, or of the results of the HGN test" (Id at 50). The court then reasoned that the officer's inability to establish one of the elements-taking a drug proscribed by Public Health Law § 3306-was fatal to a finding of probable cause (Id at 50-51). There are several cases which have adopted Koszko's reasoning (see e.g., People v Levine, 72 Misc.3d 5 [App Term, 2d Dept, 9th & 10th Jud Dists 2021] [following Koszko under a similar set of facts]).
The People candidly concede that if the court were to adopt the reasoning in Koszko and its progeny, Officer Piazza lacked probable cause to arrest Belter. However, the prosecution urges the court not to follow Koszko for several reasons.
First, the People say the interpretation would lead to results unintended by the legislature. Specifically, the prosecution argues that the Koszco rationale would make it practically impossible for the police to arrest a driver who bears all the telltale signs of impairment, who fails a field sobriety test and who is patently unable to operate a vehicle safely, but who, upon arrest, refuses to admit the specific substance she has taken.
The court is sympathetic to the People's position. In general, laws are not drafted in a manner making them enforceable only against dimwits (see The Emily, 22 U.S. 381, 389 [1824]). It is quite possible that the legislature may not have fully grasped the hurdles that it imposed upon law enforcement officers to make probable cause arrests under VTL 1192(4). But if Koszko's reasoning is correct, and if its logic renders VTL 1192(4) impotent, any statutory fixes must rest with the legislature, for it alone possesses the law-making power. Indeed, if a court could change a law's plain meaning by its "own imagination[ ], [it] would risk amending statutes outside the legislative process [which is] reserved for the people's representatives" (Bostock v Clayton County, 590 U.S. 644, 654-655 [2020]).
Second, the People urge the court to apply a holistic pragmatic view of probable cause rather than a prima facie case analysis preferred by the Koszko court. This position has strength.
Probable cause, as the name suggests, depends on probabilities not certainties. Accordingly, "probable cause requires a pragmatic analysis of everyday life on which reasonable and prudent men, not legal technicians, act" (People v Samuels, 68 A.D.2d 663, 674-675 [1st Dept 1979]). Thus, "probable cause is a fluid concept... incapable of precise definition or quantification into percentages" (Maryland v Pringle, 540 U.S. 366, 370-371 [2003]). Indeed, the Supreme Court's instruction that courts must avoid engaging in an "excessively technical dissection of the factors supporting probable cause" rest on pragmatic deference advocated by the prosecution (District of Columbia v Wesby, 583 U.S. 48, 60 [2018]).
Based on this pragmatic deference, the People say the police had probable cause to arrest Belter. The prosecution correctly points out that Belter drove headfirst into a car during the middle of the day, she lacked basic motor functions, she could not place her dog's leash around a fire hydrant and failed a field sobriety test. This surely established that Belter operated her car while impaired.
But impaired by what? Belter admitted, pre-arrest, that she took prescription medication for depression before driving-linking drug ingestion to the erratic driving. It became apparent that Belter was telling a half-truth. She had taken some sort of prescription drug in an amount and within a time frame that caused her impairment-or at least Officer Piazza could have fairly concluded. Further, the officer was aware that the law was designed to capture the abuse of drugs that put innocent drivers' lives at risk; thus, he could have reasonably believed, given the drugs' effect on Belter, that these unknown mental health drugs were the kind which VTL 1192(4) outlaws. In short, it was a good bet that Belter had violated the law.
Therefore "considering all of the surrounding circumstances, including the plausibility of [Belter's] explanation [for her impairment]-[the officer could have reasonably concluded] that there was a substantial chance of criminal activity" (Wesby, 138 S.Ct. at 588). Meaning the officer had probable cause to arrest Belter for impaired driving.
It is true that under Koszko, by not connecting the impairment to a specific drug proscribed by Public Health Law § 3306, the officer failed to make a prima facie case and thus lacked probable cause for an arrest. But to embrace a prima facie methodology would be to embrace a rejected methodology-for it is well established that "a finding of probable cause does not... require the same quantum of proof necessary... to establish a prima facie case" (People v Geddes, 171 A.D.3d 1210, 1212 [2d Dept 2019]).
More Importantly, it seems misplaced to focus on strict elementary requirements as if police-citizen engagements occur in the pristine and reflective philosophical vacuum of a courtroom-they do not, and case law recognizes a distinction between the streets and the courtroom (see People v Hill, 146 A.D.2d 823, 824 [3d Dept 1989] [holding that in the probable cause context "[t]he evidence of criminality need not rise to the level necessary to support a conviction or even be sufficient to establish a prima facie case"]).
Finally, it is no matter that another officer under these circumstances may have made a different assessment. Rather, probable cause is a deferential standard allowing a reasonable officer to make an arrest when armed with sufficient "knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed" (People v Terry, 2 A.D.3d 977, 978 [3d Dept. 2003]).
The court holds that under the facts known to Officer Piazza at the time he arrested Belter, a reasonable officer could reasonably believe that Belter had violated VTL 1192(4). Belter's arrest was constitutional. To the extent that Koszko's framework would suggest an opposite result, the court respectfully declines to adopt it.
Administration of the Miranda Warning
Belter next alleges that the police improperly administered Miranda warnings. The problem was that the officer never formally asked her if she wished to waive her right to remain silent (a right of which she was properly apprised). Although this defect may seem quite small, it is, according to Belter, quite essential. Indeed, without this formal invitation to waive her rights, Belter's decision to consent to a chemical test was involuntary, or so Belter argues.
This much is true, an accused must waive her right to remain silent for any statement elicited during a custodial interrogation to be admissible. However, the waiver need not be explicit. The law is well established on this point-"[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent" (Berghuis v Thompkins, 560 U.S. 370, 384 [2010]).
Here, Belter implicitly waived her rights. The proof showed that Officer Piazza clearly articulated that Belter had the right to remain silent and that she had the right to counsel. Throughout the duration of the warnings, Belter maintained eye contact with the officer. Moreover, she both nodded and verbally acknowledged that she understood her rights. Within seconds, and without handcuffs on, Belter answered questions about the substances she was taking. Never, throughout her entire arrest process, did she invoke her right to remain silent or requests the assistance of an attorney.
Based on these facts, the court finds that since Belter acknowledged her Miranda rights and thereafter willingly and without hesitation spoke with police, Belter evinced an implicit waiver of her rights (People v Green, 141 A.D.3d 1036, 1038 [2d Dept 2016]). Thus, when Belter agreed to a chemical test, it was premised on a complete understanding of her constitutional rights. Therefore, the court holds that Belter's consent to a chemical test was voluntary and not marred by an insufficient Miranda warning.
Coercive Police Tactics
Belter next argues that police engaged in coercive tactics which coerced her to consent to the chemical test. It is correct that the Due Process Clause of the Fourteenth Amendment forbids the government from using evidence which it obtained from the accused via coercion (Miller v Fenton, 474 U.S. 104, 109 [1985]). That is, when the police obtained evidence by employing coercive practices, a court may suppress it (Colorado v Connelly, 479 U.S. 157, 167 [1986]). A police tactic amounts to coercion when the tactic overcomes the accused's free will (Dickerson v United States, 530 U.S. 428, 434 [2000]).
The archetype of coercive tactic is physical abuse. Indeed, physically abusive interrogation tactics constitutes coercion per se (Stein v New York, 346 U.S. 156, 182 [1953]).
In this case, according to Belter, the coercive tactic was the art of deception. In particular, Belter claims that police "falsely advised" her that she might not be arrested if she took and passed a DRE. Belter says that this statement broke her will and her ability to voluntarily consent to give blood for a chemical test.
To begin, the court is not sure such a statement was false. Indeed, if Belter passed the DRE, it seems most likely that she would have been released from custody. Nothing at the hearing suggested the contrary.
Additionally, assuming that the statement was disingenuous, it hardly amounts to coercion. Lying is a standard police stratagem. Indeed, "[t]he police are permitted to lie or use some deceptive methods" to elicit a suspect's confession (People v Cubero, 160 A.D.3d 1298, 1301 [2d Dept 2019]). No threats were lodged against Belter either explicitly or implicitly. Rather, the police offered a carrot for cooperation. Such practices are lawful and not coercive. Police interrogators are permitted to tell a suspect that "a cooperative attitude" would be to her benefit (Fare v Michael C., 442 U.S. 707, 727 [1979]).
Moreover, having viewed the interaction between Belter and Officer Piazza, nothing in their exchanges remotely suggests that Belter was afraid, intimidated or pressured by the officer's statement that undergoing a DRE may have been a ticket to freedom. Therefore, the court holds that Belter was not coerced into taking the DRE or into agreeing to a chemical test.
Effect of Defective Refusal Warning
Belter lastly argues that a defective refusal warning rendered the chemical test inadmissible. Generally speaking, if the driver consents to the test, then chemical test results are admissible. Consent can either be voluntarily given or obtained via VTL 1194(2)(a)(1) which is an implied consent statute. In this case, Belter gave consent twice-once under both methods. The essence of Belter's argument is that although her initial consent to testing was voluntary, it was subsequently vitiated when the police incorrectly warned her that a refusal to submit to a chemical test could be used against her at trial. This issue, whether initial voluntary consent can be later vitiated by an inaccurate refusal warning, lacks controlling precedent.
Pursuant to Vehicle and Traffic Law § 1194(2)(a)(1), a motorist whom the police have reasonable grounds to believe is driving in violation of Vehicle and Traffic Law § 1192 "shall be deemed to have given consent to a chemical test... for the purpose of determining the alcoholic and/or drug content of the blood."
Belter does not concede the voluntariness of her initial consent, but the court decides that issue against her. Therefore, Belter proceeds with this alternative argument.
Some exposition of the mechanics of implied consent is helpful to the analysis. To start with, despite the statutory mandate that a driver submit to a chemical test, a driver may still refuse to be tested. However, such a refusal has ramifications. If a driver opts out of testing, then, among other things, a driver's refusal to voluntarily take the test becomes admissible at trial (VTL 1994 [f]). Now, the police may warn a driver about the repercussions of refusal "to encourage [the driver] to comply with requests to submit to chemical testing" (People v Washington, 23 N.Y.3d 228, 231 [2014]).
However, VTL 1194(2)(a)'s implied consent mandate comes with a two-hour time limit-that is, implied consent, together with refusal penalties, expire two hours after the driver has been arrested. Thus, once the two-hour window closes, it is no longer true that a driver's refusal can be used against her at trial (People v Odum, 31 N.Y.3d 344 [2018]). Indeed, when the statutory time is up, the police can no longer tell a suspect that her refusal can be used against her-to do so would be an inaccurate statement of the law. Such an inaccurate statement operates as a deception which deprives a person from making a knowing and intelligent decision about consent. Thus, the consent to a chemical test under deceptive circumstances is deemed invalid (Id at 351). Consequently, the test results become inadmissible (Id at 353).
With this explanation in hand, the focus turns to the interplay between voluntary consent and implied consent. Since a driver's consent to a chemical test can be obtained in two different ways, four permutations of consent exists: (1) no initial consent followed by consent after a timely refusal warnings- this combination, the test's results are admissible if conducted within two hours (People v Kates, 53 N.Y.2d 591, 595 [1981]); (2) no initial consent followed by consent after an untimely refusal warnings-this paring renders the chemical test results inadmissible (Odum, 31 N.Y.3d at 351); (3) initial voluntary consent without refusal warnings-under this scenario, test results are admissible even if conducted two hours after arrest (People v Atkins, 85 N.Y.2d 1007, 1008 [1995]); (4) initial voluntary consent followed by consent after an untimely refusal warnings-this circumstance, which arose in this case, is void of dispositive precedent.
So, without guidance, it seems wise to start with a fundamental principle of law-for consent to be voluntary, it must be freely given (Schneckloth v Bustamonte, 412 U.S. 218, 224 [1973]). Here, as the court has found, Belter had voluntarily consented to the chemical test. However, following the valid consent, the police issued belated (i.e., more than two hours after the Belter arrest) refusal warnings. Although Belter again consented, her subsequent consent to testing was invalid. So which controls, the first valid consent or the subsequent invalid consent.
In the court's estimation, it comes down to a matter of presumption. That is, the court presumes that consent, once freely given, remains effective until revoked. Under some circumstances revocation may be a tricky issue. There may be cases where a defendant initially consents but then attempts to back off from the consent. And under such circumstances, what constitutes revocation or whether a defective refusal warning interfered with a revocation attempt would turn on the specific facts. But no such circumstances exist in this case. After Belter gave her initial consent, she never expressed any reservation nor made the slightest attempt to revoke it. Thus, a defective refusal had no retroactive force upon her initial voluntary consent.
Therefore, the court finds that Belter's initial consent to the chemical test controls not withstanding the defective refusal warnings. Since Belter voluntarily consented to the chemical test, it is admissible at trial (Atkins, 85 N.Y.2d at 1008).
In sum, the court denies defendant's motion to suppress the results of the chemical test.