Opinion
50094C-2008.
Decided October 11, 2011.
The People were represented by Bronx County Assistant District Attorney Patricia Antoinette Wright.
The defendant was represented by Evan Flinn Sugar of the Legal Aid Society.
Via a misdemeanor information dated August 21, 2008, the defendant William Elfe was charged with driving while ability impaired and driving while intoxicated (V.T.L. §§ 1192 and [3], respectively). On March 2, 2009, defense counsel filed an omnibus motion to which the People responded on March 6, 2009. On May 5, 2009, Justice Clark ordered a Huntley/Mapp/Dunaway hearing.
On August 8, 2011, before the commencement of the hearing, defense counsel orally moved to withdraw his motion for a Mapp hearing, an application which was granted. One witness, Police Officer Brian Williams of the Bronx Task Force of the New York City Police Department ("NYPD"), testified at the hearing. Before the hearing concluded, this Court granted defendant's motion for a Refusal hearing. On September 7, 2011, the People filed a post-hearing memorandum of law to which the defense replied on September 23, 2011. As set forth below, I found the testimony of the officer to be credible.
In his omnibus motion, defense counsel moved to suppress all evidence of a refusal to submit to a chemical test (defendant's omnibus motion, ¶¶ 13-20) and the People opposed said motion (People's affirmation in opposition, unnumbered pp. 3-4). The motion court, however, did not address this issue in its decision and order.
Findings of Fact
A nine-year veteran of the NYPD, Officer Williams made approximately half a dozen arrests related to persons suspected of driving under the influence of alcohol. On August 20, 2008, Officer Williams, who was in uniform, was assigned to a foot post on Kelly Street by Westchester Avenue in the 41st Precinct with his partner Police Officer Dale Walker. The train runs overhead on Westchester Avenue with Kelly Street intersecting it. There are train pillars on both sides of the street. While the officers stood at the post, a few people ran from Westchester Avenue and yelled that an accident had occurred by the train post. There was not much traffic during that time and, although it was night time, it was fairly light out because there were many street lights.
Once the officers arrived at the accident, they observed a Ford van firmly wrapped around a pole on Westchester Avenue. Officer Williams observed defendant slumped over the steering wheel. The key was in the ignition, the air bags were deployed and the engine was pushed back almost into the passenger's compartment. Because the van horn was blowing, Officer Williams attempted to stop the noise by reaching into the van and turning off the ignition. At that point, there was a " . . . pretty heavy smell" of alcohol (H. 23). Officer Walker called for an ambulance.
Numerals preceded by "H." refer to the suppression hearing minutes.
Officer Williams, who had his gun in his holster, asked defendant if he was okay and if he had been drinking. Defendant stated that " . . . he had been drinking, yes. He was drinking far away. . . ." (H. 14). Additionally, defendant stated that " . . . he went to turn and the van didn't turn. . . ." (H. 15). Defendant ". . . had very extremely slurred speech, seemed very disoriented. His eyes were glassy. He was just out of it." (H. 16). Defendant seemed bewildered and drunk.
Notice pursuant to C.P.L. § 710.30(1)(a) was never served for this statement.
When the ambulance arrived, defendant refused medical treatment. Nevertheless, the officers had defendant examined before placing him under arrest at 9:39 p.m. Several factors led Officer Williams to arrest defendant, including the fact that he smelled alcohol, defendant stated that he had been drinking and driving, the accident and the place where the accident occurred. "There was absolutely no . . . way you could have hit the pillar. . . . It's just the totality of the circumstances. . . ." (H. 31).
Subsequently, defendant was brought to the 45th Precinct for a breathalyzer test. Once defendant arrived at the 45th Precinct, he was given an opportunity to take such a test. Highway Police Officer Wiley stated to defendant, "You have been arrested for operating a motor vehicle while under the influence of alcohol or drugs. I would like you to take a breath test. Will you take the test? (People's Exhibit 1: IDTU videotape). When defendant stated no, the highway officer asked, "No?" and defendant responded "No." Id. Thereafter, the highway officer stated to defendant:
If you refuse to submit to the test, or any portion thereof, it will result in the immediate suspension and subsequent revocation of your driver's license or operating privilege whether or not you are found guilty of the charges for which you have been arrested. In addition, your refusal to submit to a test, or portion thereof, can be introduced as evidence against you at any trial proceeding or hearing resulting from the arrest. I ask you again, will you take a breath test. Yes or no?
Id.
Defendant responded, "Not at all. . . . " Id.
When defendant was given an opportunity to take the coordination test, he complied and the test was videotaped at 12:27 a.m. Officer Williams was present throughout the test. Defendant's speech was more slurred at the accident scene than at the 45th Precinct. On the Intoxicated Driver Examination form, Officer Williams indicated that the color of defendant's face was normal, his clothes were orderly, his attitude was polite, his balance was steady, his eyes were bloodshot, his speech was slurred, the smell of alcohol on his breath was moderate and that he had " . . . a loss of situational awareness. . . ." (H. 24-25).
At some point, defendant's family members or friends stopped by the precinct to pick up his personal effects. As Officer Williams explained to them what happened, they informed him that defendant had been a victim of a crime and was hit on the head with an object causing him to sustain brain damage and be in a coma.
Conclusions of Law
Huntley/Dunaway
Defendant contends that the noticed statements made to the police should be suppressed because they were illegally obtained. Specifically, he claims that they: (1) are tainted fruit of an unlawful arrest; and (2) were made after he was subjected to custodial interrogation without first being advised of his Miranda rights (defendant's omnibus motion, ¶¶ 9-12; defense counsel's summation at hearing, H. 32-33). Additionally, defendant seeks, pursuant to C.P.L. § 710.30(3), to preclude any statements where proper notice was not given (defendant's omnibus motion, ¶ 12).
According to the People's Bill of Particulars, defendant stated in sum and substance: What? I did. Far Away. I was driving the car. No (People's Bill of Particulars, p. 1). The People served notice, pursuant to C.P.L. § 710.30(1)(a), of statements almost identical to these at defendant's arraignment (People's post-hearing memorandum of law, unnumbered p. 6).
Here, Officer Williams' observations, including defendant's slurred speech and glassy eyes, the strong odor of alcohol emanating from defendant's car, combined with defendant's admission that he had been drinking and driving and the manner in which the accident occurred, provided probable cause to arrest defendant for driving while intoxicated. See People v. Kowalski, 291 AD2d 669, 670 (3d Dept. 2002); People v. Rollins, 118 AD2d 949, 950 (3d Dept. 1986). Officer Williams had nine years of experience and had made about half a dozen arrests for driving while intoxicated. The officer was entitled to draw upon that experience in his observation of defendant at the time of the arrest. See People v. Corrado, 22 NY2d 308, 313 (1968); Rollins, 118 AD2d at 950.
As to defendant's noticed statements, he made them after Officer Williams smelled a " . . . pretty heavy smell" of alcohol from defendant's car (H. 23). Subsequently, the officer asked defendant if he had been drinking and defendant replied yes. Under the circumstances, the officer's question constituted a non-custodial investigatory inquiry for which Miranda warnings were not required. See People v. Bennett, 70 NY2d 891, 893 (1987) (investigatory inquiries about whether defendant was involved in a reported accident did not constitute custodial interrogation to which Miranda applies; although defendant was seized, he was not in custody for purposes of the need to give Miranda warnings); People v. Goodings, 300 AD2d 50 (1st Dept. 2002), lv. denied, 99 NY2d 628 (2003) (officer was entitled to ask some investigative questions without first giving Miranda warnings where defendant was detained for prompt identification based upon reasonable suspicion that he was involved in a crime); People v. Mason, 157 AD2d 859, 860-61 (2d Dept. 1990) (the officer's question at roadside about whether defendant had been drinking constituted a noncustodial investigatory inquiry for which Miranda warnings were not required); People v. Brown, 104 AD2d 696, 697 (3d Dept. 1984), lv. denied, 64 NY2d 778 (1985) (denial to suppress statements upheld where defendant admitted to drinking without first being given the Miranda warnings since he could not have considered himself in custody simply due to officer's request to get out of car).
As for the unnoticed statements in which defendant stated that " . . . he went to turn and the van didn't turn . . ." (H. 15), such statements are precluded as the People never served notice pursuant to C.P.L. § 710.30(1)(a). It has been over three years since defendant was arraigned and the People have never provided good cause for failing to serve notice of these statements as required by C.P.L. § 710.30(2). As such, the People are precluded from offering such statements at trial since they failed to demonstrate that the statements are exempt from the notice requirement. C.P.L. § 710.30(3).
At the close of the hearing, this Court gave the People an opportunity to submit a post-hearing memorandum of law addressing several issues, including whether they gave notice of all the statements they intend to produce (H. 36). In their post-hearing memorandum of law, the People, however, only addressed the statements in which notice was given at arraignment (People's post-hearing memorandum of law, unnumbered pp. 5-6).
Refusal and the Two-Hour Rule
Defendant asserts that since he was asked to submit to a breath test in excess of two hours (two hours and forty eight minutes to be precise) after his arrest, he was no longer subject to the "implied consent" provision of V.T.L. § 1194(2)(a). Further, defendant contends that, since the officers never advised him that he was no longer subject to the "implied consent" provision, their conduct was in violation of V.T.L. § 1194(2)(f) for failing to provide clear and unambiguous warnings. Accordingly, defendant argues that the evidence of his refusal to take the breath test should be suppressed (defendant's post-hearing memorandum of law, pp. 4-6; defense counsel's summation at hearing, H. 34). Defendant also claims that evidence of his refusal should be suppressed because the general refusal warnings given were not in clear and unequivocal language and he never gave a persistent refusal to submit to a breath test (defendant's omnibus motion, ¶ 15).
The two-hour rule stems from V.T.L. § 1194(2)(a), which contains a two-hour limit within which a chemical test may be performed on person who is incapable of consenting. It states, in pertinent part, that:
Any person who operates a motor vehicle . . . shall be deemed to have given consent to a chemical test of . . . breath . . . for the purpose of determining the alcoholic . . . content . . . provided that such test is administered by or at the direction of a police officer . . . (1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for such violation. . . .
The statute is thus very straightforward — when the deemed consent provision of V.T.L. § 1194(2)(a) applies, a chemical test analysis must be conducted within two hours of the driver's arrest. Failure to do so renders such evidence inadmissible at trial. This two-hour prescription exists nowhere else in the statute, dictating its scope was likewise meant to be limited to that provision. Indeed, in People v. Finnegan, 85 NY2d 53, 58 (1995), finding the two-hour rule inapplicable to independently performed chemical tests, the Court of Appeals held that "[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used." The Court further stated, "[w]e have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended," and that "the omission of . . . substantive elements [from this] fully integrated and comprehensive driving while intoxicated protocol compellingly suggests that the Legislature intended no such additional obligations." Id.
Pursuant to this logic, the omission of a two-hour component from the refusal provision, V.T.L. § 1194(2)(f), demonstrates legislative intent to exempt refusals from the two-hour rule. After all, "[i]t is a fundamental canon of statutory construction that courts do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its actions on matters within its powers."` Pajak v. Pajak, 56 NY2d 394, 397 (1982) (quoting NY Stat. Law § 73 [McKinney's 1982]).
Vehicle and Traffic Law § 1194(2)(f) permits the People to introduce at trial evidence that the defendant refused to take a breathalyzer test " . . . only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal." See People v. Thomas, 46 NY2d 100, 103 (1978), appeal dismissed, sub nom. Thomas v. New York, 444 U.S. 891 (1979).
In any event, when more than two hours have passed between an arrest and the administering of the chemical test, the Court of Appeals has held that the two-hour limitation contained in V.T.L. § 1194(2)(a) has no application where the defendant expressly and voluntarily consented to taking such test. People v. Atkins, 85 NY2d 1007, 1009 (1995); People v. Ward, 307 NY 73, 76 (1954). What Atkins did not address is whether the two-hour rule is applicable to refusals given after the two-hour statutory limitation.
Defendant relies on People v. Brol, 81 AD2d 739 (4th Dept. 1981), People v. Morris , 8 Misc 3d 360 (Crim. Ct., Richmond Co. 2005), People v. Kenny, 9 Misc 3d 1104(A) (Crim. Ct., Richmond Co. 2005) and People v. Graziuso, 23 Misc 3d 1138(A) (Crim. Ct., Richmond Co. 2009), to support the argument that evidence of his refusal should be suppressed because he was not properly warned that, since two hours had passed from the time of the arrest, he was no longer subject to the "implied consent" provision of V.T.L. § 1194. The courts in Morris, Kenny and Graziuso relied on Brol to reach their conclusion.
Brol dealt with the competency of evidence. The Fourth Department held that "[u]nless the test is taken within the two-hour time limit, however, the results are not competent evidence and may not be received in evidence against the operator. . . ." Brol, 81 AD2d at 740. Further, the Fourth Department noted, "[b]ut if the test's results are incompetent if the test is not administered within the two-hour limit, evidence of the refusal is similarly incompetent evidence against defendant unless obtained within two hours of the arrest." Id. Thus, the Fourth Department placed a precondition on the admissibility of evidence and that precondition was overruled by Atkins. Atkins clearly eliminated this precondition when the Court of Appeals held that test results obtained after the two-hour limit may be received in evidence at trial against a defendant even if the defendant consented to the test after two hours. Thus, in following Brol to its logical conclusion, if the test's results are competent if the test was administered after the two-hour limit (as Atkins has ruled), then evidence of the refusal is likewise competent evidence against defendant even if the refusal was obtained two hours after the arrest. People v. Popko, 2011 WL 3477069, *5 (Crim. Ct., Kings Co. June 28, 2011)
Accordingly, where, as here, defendant was capable, but refused to consent, evidence of that refusal, as governed by V.T.L. § 1194(2)(f), is admissible evidence regardless of whether the refusal was made more than two hours after arrest. It follows then that, contrary to defendant's assertion, the officers did not violate V.T.L. § 1194(2)(f) for failing to advise him that he was no longer subject to the "implied consent" provision since such advisement would have been wrong.
Next, defendant claims that evidence of his refusal should be suppressed because he never received sufficient refusal warnings in "clear and unequivocal" language and he never gave a persistent refusal to submit to a breath test (defendant's omnibus motion, ¶ 15). Defendant's claims are meritless.
To establish a refusal, the People must show, by a preponderance of the evidence, that clear and proper refusal warnings were delivered to defendant and that a true and persistent refusal then followed. Davis, 8 Misc 3d at 159. A determination of whether the refusal warnings were in "clear and unequivocal language" must be based on an objective standard independent of whether the defendant actually understood them. See People Reynolds, 133 AD2d 499, 501 (3d Dept.), lv. denied, 70 NY2d 803 (1987); Matter of Carey v. Melton, 64 AD2d 983 (2d Dept. 1978).
Here, the evidence demonstrates that when the highway officer initially asked defendant if he wanted to take the breath test, he stated no. Thereafter, the highway officer informed defendant that his refusal would affect his driving privilege and that his refusal of any part of the test would be used as evidence at a court proceeding. The officer, again, asked defendant if he wished to take the test and defendant replied, "Not at all." (People's Exhibit 1: IDTU videotape). Under these circumstances, where the record shows that defendant understood the warnings, it cannot be said that the warnings were not given in "clear and unequivocal language."
In order for a refusal to be considered "persistent," the driver must be "offered at least two opportunities to submit to the chemical test, at least one of which must take place after being advised of the sanction for refusal.'" People v. Pagan, 165 Misc 2d 255, 261 (Crim. Ct., NY Co. 2005); see Thomas, 46 NY2d at 108 ("Under the procedure prescribed by section 1194 of the Vehicle and Traffic Law a driver who has initially declined to take one of the described chemical tests is to be informed of the consequences of such refusal. If he thereafter persists in a refusal the test is not to be given . . . the choice is the driver's").
Here, there is no question that defendant was given two opportunities to take the breath test, one of which took place after defendant was informed of the sanctions for refusing. Accordingly, defendant's refusal to take the breath test was persistent.
Conclusion
Defendant's motion to suppress the statements is denied in its entirety.
Defendant's motion to preclude evidence of his refusal to take the breath test is denied.
This constitutes the Decision and Order of the Court.