Opinion
2009NA001055.
Decided September 7, 2010.
Kathleen M. Rice, District Attorney Nassau County.
Raiser Kenniff, P.C., Attorneys for Defendant.
On June 1, 2010 a pre-trial hearing was held in this matter and counsel for the respective parties agreed that the Court was to decide the issues of whether the defendant was stopped based upon a reasonable suspicion of what of the stop of defendant's vehicle, whether defendant's statements to police were voluntarily made after her arrest and whether the defendant's decision to submit to a chemical test was voluntarily made (Hearing Transcript, p. 3, lines 8-14). The People produced one witness at the hearing, Trooper Linda Holmes. The defendant called no witnesses.
FINDINGS OF FACT
Based upon the testimony adduced at the referenced hearing, the Court makes the following essential findings of fact:
That on December 28, 2008, Trooper Holmes was a passenger in a marked police vehicle assigned to patrol the Wantagh State Parkway and the vehicle was being driven at that time by Trooper Holmes' partner, Trooper Knapp. Both of the Troopers were in uniform. At approximately 2:08 am Trooper Holmes stated that she observed the vehicle in front of the police vehicle failing to maintain its lane of traffic and a vehicle and traffic stop was made on the subject vehicle being operated by the defendant. The weather at the time was wet and foggy.
Upon approaching the defendant's vehicle, Trooper Holmes had a conversation with the defendant during which the defendant stated that she had consumed one drink that evening and that she was lost getting home. The defendant later at the Police Barracks after her arrest stated to police that she had consumed two glasses of pinot grigio. The Trooper testified that she detected the odor of alcohol in the vehicle and, upon exiting the vehicle, the defendant was observed to have the odor of alcohol on her breath and slurred speech. At this time, the defendant was not under arrest and no Miranda warnings had been given. At approximately 2:33 am the Trooper asked the defendant to submit to a breath test at the Trooper barracks at Farmingdale and at 2:34 am the Trooper read the defendant her Miranda warnings directly from the card used for such instances. The defendant was also read her DWI/DWAI warnings, also directly from his card, in connection with the Trooper's request to have the defendant submit to a chemical test to determine the alcohol and/or drug content of the defendant's blood as well as the consequences of refusing the request. Trooper Holmes was questioned exhaustively on all of the foregoing.
While at the scene of the stop, Trooper Holmes had the defendant exit her vehicle onto the shoulder of the roadway which was not perfectly flat and which contained road debris associated with a public roadway. At this time the defendant was put through a series of field sobriety tests. The Trooper stated that the defendant was unsteady on her feet the entire time she was in the presence of Police, both before and after the defendant was placed into custody.
The defendant's counsel challenged Trooper Holmes' exhaustively on cross-examination, i.e. the condition of the roadway where and when the defendant first exited her vehicle; the presence of mud on the roadway where the defendant performed her field sobriety tests; the assertion that defendant was wearing high heels when performing the field sobriety tests; and that there was potentially a coercive environment when the defendant gave her statements and when she was asked to submit to a breath test.
FINDINGS OF LAW
Based upon the oral testimony taken before me, the credibility of the witness, the argument of counsel, the exhibits presented to the Court and admitted into evidence, all of the facts and circumstances at issue and all proofs submitted herein, the Court finds that the vehicle and traffic stop of the defendant's vehicle was appropriate under the law, insofar as this Court determines that the stop was not ". . . the product of mere whim, caprice or idle curiosity" ( People v. Rose, 2009 NY Slip Op 08412, citing People v. Ingel, 36 NY2d 413). Further, the stop was made in the regular course of duty while the Troopers were on routine patrol and Trooper Holmes personally observed the defendant commit the violation of failing to maintain lane (VTL § 1128(a); People v. Rose, supra). The Court further finds that the statements made by the defendant to the Police were voluntarily made pursuant to CPL § 60.45 and that the defendant voluntarily, and with knowledge of its consequences, voluntarily submitted to a chemical test of her breath.
DECISION
Based upon the foregoing, the Court denies those portions of the defendant's original Omnibus motion seeking suppression based upon an alleged illegal stop of the defendant's vehicle and finds that the statements made to the Police by the defendant, as well as the defendant's consent to take a breath test, to have been voluntarily made.
The foregoing constitutes the Decision and Order of the Court.