Opinion
2009 BX 012814C.
Decided November 30, 2009.
Upon the foregoing papers, it is hereby ordered that defendant's motion is granted and plaintiff's motion is denied.
Attorney for the People: Office of Robert T. Johnson, District Attorney of Bronx County, By: Asst. Dist. Atty. Sean Maraynes, Criminal Court Bureau.
Attorney for Defendant: Mark A. Bederow, Esq.
The defendant is charged under VTL § 1192(1) with operating a motor vehicle under the influence of alcohol. This matter was referred to this Court for a pre-trial Dunaway/Johnson, Mapp and Huntley hearing by decision and order of the Hon. Doris M. Gonzalez, dated May 21, 2009. The hearing was initially held on October 13, 2009, adjourned and completed on November 13, 2009. Following completion the Court reserved its decision.
At the hearing the people presented the testimony of Officer Dennis Vickery. He stated that on February 25, 2009 the defendant was stopped for speeding by Officer Stephen Carnevale. Officer Vickery came to the scene and noticed the defendant's vehicle stopped on the side of the road on I-95 near Middletown Road, the defendant was inside the vehicle seated behind the steering wheel and the vehicle's engine was running. He approached the vehicle to speak to the defendant, smelled alcohol on the defendant's breath and notice she had bloodshot watery eyes. Following these observations he asked the defendant to step out of the vehicle. As she stepped out of the vehicle defendant stumbled and the officer noticed her to be unsteady. Officer Vickery administered a field test that registered the defendant's blood alcohol content to be .088, above the legal limit. At this point the officer decided to transport the defendant to the 45th precinct station house for a breathalyzer test.
The People introduced a videotape of everything that occurred at the precinct once defendant arrived there (see People's Number 1 in evidence, videotape). This videotape shows defendant being brought into the precinct in handcuffs and placed on a bench. Defendant is engaging the officer in conversation and answers questions asked by the officer regarding her license. Defendant asks to speak to her husband and the officer advises her that she can make a phone call to a lawyer, if she knows the name of one he can find the telephone number for her as long as the attorney's office is within New York City. At no time did defendant make an unequivocal request to speak to an attorney or request that a call be placed to a specific attorney on her behalf. Instead she asked to speak to her husband after the officer read her the statutory warnings under VTL § 1194, regarding a refusal to submit to a breathalyzer test.
Officer Vickery allowed the defendant to place a telephone call to her husband but he did not answer the call. She left a message for him telling him, in the officer's presence, that she had been arrested, was at the 45th precinct, provided the telephone number to the precinct and "had one drink." Defendant told the officer to wait ten minutes for her husband to call back. The officer waited the ten minutes and again asked defendant if she would take the test. Defendant asked the officer to wait and he assented to wait five more minutes.
During the time she waited for her husband to call the precinct defendant engaged the officer in conversation. She asked the officer what should she do under the circumstances, and he responded he could not tell her. She asked what would happen if she refused to take the test, he provided her with the answer in the VTL § 1194 warning. She asked what would happen if she took the test and he answered that the outcome would depend on the percentage of alcohol as registered. Defendant asked if a person can blow above .05 after having one drink and the officer responded that it depends on how fast the person's body processes the alcohol. After the five minutes elapsed the officer re-read the warnings and again asked the defendant if she would take the test. Defendant wanted more time for her husband to call but the officer insisted she had to make a decision. Defendant consented, took the breathalyzer test and blew a .064.
Following administration of the breathalyzer test the officer asked defendant if she wished to submit to a coordination test. Defendant consented and the following coordination tests were administered: heel to toe walk on straight line, leg raise test, finger to nose test. As shown on the video defendant was able to walk a straight line, raise one leg and count without stumbling and touch the tip of her nose with the tip of her finger, while keeping her head back, without difficulty.
Following the administration of the breathalyzer and coordination tests defendant was placed under arrest and given Miranda warnings.
PROBABLE CAUSE
A Dunaway/Johnson hearing involves a determination of whether the defendant was unlawfully seized pursuant to the Fourth Amendment of the United States Constitution. The defendant will not be deemed seized if the People can establish that the police had probable cause for the arrest. The hearing determines whether the arrest was based upon probable cause. (See People v. Mendoza, 82 NY2d 415, 624 NE2d 1017). A Mapp hearing involves whether any evidence obtained should be suppressed as a result of the defendant being arrested without probable cause. (See People v. Thomas, 164 Misc 2d 721, 626 NYS2d 405 [N.Y.C. Civ. Ct., 1995]).
The initial burden is on the People to provide evidence of probable cause regarding the legality of police conduct ( See People v. McLean, 24 Misc 3d 1203 (A), 2009 WL 170831 [Sup. Ct. Bronx County, 2009] and People v. Lewis, 25 Misc 3d 1209 (A), 2009 WL 3188554 [Sup. Ct. Bronx County, 2009]). The burden once met shifts to the defendant to prove the illegality of police conduct ( See People v. McLean, 24 Misc 3d 1203 (A) , supra and People v. Lewis, 25 Misc 3d 1209 (A) , supra).
Officer Dennis Vickery testified that on February 25, 2009, the defendant was stopped for speeding by Officer Stephen Carnevale. He came to the scene after the vehicle was stopped but the engine was still running and the defendant was seated behind the wheel. He approached the vehicle to speak to the defendant at the scene. An officer that is not present at the time an individual is stopped for a traffic violation, but observes "classic signs of intoxication" can establish probable cause pursuant to the "fellow officer rule." An officer that observes signs of intoxication is entitled to rely upon statements by the officer involved with traffic enforcement that the defendant was driving a motor vehicle and have sufficient reason to believe they were driving while intoxicated. ( See People v. Babanazarov, 15 Misc 3d 1108 (A), 836 NYS2d 501 [Sup. Ct. Bronx County, 2007] citing to People v. Dickerson, 20 AD3d 359, 799 NYS2d 50 [N.Y.A.D. 1st Dept., 2005]).
When an arresting officer is directed to act, but there is no explanation or basis provided by the "fellow officer" for doing so, evidence is required to show his own observations justify the action taken to establish probable cause. ( See People v. Cosme, 22 Misc 3d 1119 (A), 2009 WL 280020 [Sup. Ct. Bronx County, 2009]). Officer Vickery's observations justify his actions. He smelled alcohol on defendant's breath, saw her to have bloodshot watery eyes, saw her stumble while exiting the vehicle and to be unsteady on her feet. These observations provided the officer with probable cause to conduct a field sobriety test. Once the field sobriety test registered a .088 alcohol blood content it provided the officer with probable cause to seize the defendant and transport her to the 45th precinct.
The defendant has not provided sufficient evidence of police misconduct or lack of probable cause to refute the People's claims. The People have sufficiently met their burden of going forward as to the Dunaway/Johnson portion of the hearing.
HUNTLEY HEARING
The Huntley portion of a hearing requires the People to produce evidence beyond a reasonable doubt that statements made by the defendant were voluntary and not the product of interrogation. (See People v. Farquharson. 22 Misc 3d 1114 (A), 880 NYS2d 875 [Sup. Ct. Bronx County, 2009]).
The videotape introduced in evidence demonstrates that defendant was not subjected to custodial interrogation. Defendant initiated the conversation and it was the officer responding to her questions. Statements made in response to clarifying questions and spontaneous comments made in a noncustodial setting are not subject to suppression for failure to provide Miranda warnings. Any colloquy between the test giver and the defendant does not constitute custodial interrogation. (See People v. Farrell, [N.Y.A.D. 1st Dept. 2006], People v. Lewis, 25 Misc 3d 1209 (A) , supra, citing to , People v. Jacquin, 522 NE2d 1026, 371 NY2d 825, People v. Zapata , 41 AD3d 109 , 837 N.Y.S . 2d110, citing to , People v. Ealey, 272 AD2d 269, 710 NYS2d 321 [N.Y.A.D. 1st Dept. 2000]).
The defendant's argument that she requested to speak to a lawyer and the request was not honored, is not supported by the evidence. The police are required to take reasonable steps to help a defendant contact a lawyer only after an unequivocal request to consult counsel ( People v. Gelaj, 21 Misc 3d 1120 (A), 873 NYS2d 513 [Sup. Ct. Bronx County, 2008]). When told by Officer Vickery that if she provides the name of a lawyer he can look it up and a telephone call would be given to her as long as the lawyer is within New York City, defendant requested to speak to her husband. At no time did defendant make an unequivocal request to speak to a lawyer.
The statements made by the defendant to the arresting officer were spontaneous, initiated by the defendant and not the product of custodial interrogation.
MAPP HEARING
It is not necessary to issue Miranda warnings prior to the use of breath, blood, urine, saliva or chemical tests for purposes of determining the alcohol content, pursuant to Vehicle and Traffic Law § 1192 and § 1194. Miranda warnings are not required prior to administration of performance tests. The tests are not being used to reveal the thought process, instead they reveal the body's response to alcohol. There is no privilege against self incrimination because no testimony or statements need be implicated. (See, People v. Hager, 505 NE2d 237, 69 NY2d 141, People v. Havrish, 866 NE2d 1009, 8 NY3d 389, People v. Thomas, 385 NE2d 384, 46 NY2d 100, [1978], People v. Hormeku, 20 Misc 3d 1119 (A), 867 NYS2d 377 [Sup. Ct. Bronx County, 2008], People v. Lewis, 25 Misc 3d 1209 (A) , supra, and New York Vehicle and Traffic Law § 35:11 [2nd ed]).
The officer is required to provide the defendant with sufficient warning in clear and unequivocal language of the effects of the refusal to take the test and that the refusal is admissible at the time of trial (See VTL § 1194).
In the event defendant requests an attorney there is no absolute right to refuse the test until the attorney arrives at the precinct, especially if doing so results in an unreasonable delay of the test. People v. Gursey. 22 NY2d 224, 292 NYS2d 416, 239 NE2d 351.
Officer Vickery provided defendant with the required warnings, allowed her to call her husband and waited for defendant's husband to make a return telephone call. Following a reasonable period of time he again read the warnings to the defendant and again waited for her husband to call the precinct. Following this second period the officer instructed defendant that she had to make up her mind, which she did consenting to the administration of the breathalyzer and coordination tests. There is nothing on the videotape to show the officer coerced defendant into consenting. It is evident that after having been given the necessary warnings defendant knowingly and voluntarily consented to the administration of the tests.
The administration of the breathalyzer test registered a blood alcohol content of .064. The results of this test are admissible at the trial of this action.
CONCLUSION
Officer Vickery had probable cause to administer the field sobriety test when he saw defendant seated behind the wheel of a vehicle with the engine running after having been stopped for speeding by Officer Carnevale. The officer smelled alcohol on defendant's breath, saw her stumble as she exited the vehicle and saw her to be unsteady on her feet.
The result of the field sobriety test (.088) gave the officer probable cause to seize defendant and transport her to the 45th precinct for a breathalyzer test. Defendant did not request an attorney. She made statements in the presence of the officer while leaving a message for her husband. These statements were not the product of custodial interrogation. The officer read her the statutory warnings under VTL § 1194, afforded defendant adequate time and she consented to the administration of the breathalyzer and coordination tests.
Accordingly, after the combined Dunaway/Johnson, Mapp, Huntley hearing, it is this Court's Decision and Order that defendant's motion is denied. The people may introduce at the time of the trial of this action evidence of the results of the tests administered and of any statements made by the defendant.