Opinion
Docket No. CR-00366-21
04-06-2022
The People of the State of New York v. Michael Torhan, Defendant.
Unpublished Opinion
Gregory J. Johnston, J.
Hon. Gregory J. Johnston, Beacon City Court Judge.
Defendant Michael Torhan is charged with one count of Driving While Intoxicated (VTL § 1192 [3]; hereinafter "DWI"), one count of Driving While Ability Impaired by Drugs (VTL § 1192 [4]), and one court of Aggravated Unlicensed Operation (VTL § 511[1][a]. This Court conducted a combined Huntley/Dunaway/Refusal hearing on February 7, 2022. The subject of the hearing was the defendant's statements made to the police regarding and evidence surrounding the alleged refusal. For the reasons that follow, the defendant's motion to suppress the refusal is GRANTED due the People's failure to meet their burden of production at the hearing. The remaining motions by the defendant are DENIED.
PROCEDURAL HISTORY
The defendant was arraigned on July 8, 2021. At his arraignment, the People served police paperwork indicating an alleged refusal. Following motion practice, Huntley/Dunaway/Refusal hearings were granted on November 4, 2021.
The hearings were conducted by this Court on February 7, 2022. The People called Beacon Police Department Patrolman Michael Conner as their sole witness for the hearing. Defense called no witnesses. Both parties rested on the record and made written arguments. The defendant asked for suppression of the alleged refusal by the defendant based on the police officer's unlawful conduct. The People opposed, arguing that the officer's acts were authorized.
The following constitute the Court's findings of fact and conclusions of law.
FINDINGS OF FACT
Officer Michael Connor testified as the only witness at the hearing. This Court finds his testimony to be credible. Officer Connor testified that he is a two-year veteran of the Beacon Police Department (hereinafter "BPD") who previously had been an officer with the City of Newburgh Police Department for two years. Officer Connor testified that his training included six months at the Orange County Police Academy followed by two months of field training. As to training regarding intoxicated or impaired drivers, Officer Connor indicated that he attended one-week of classroom training and one-week of field training. Officer Connor testified he is not a Drug Recognition Expert (hereinafter "DRE") nor could he remember how many drunk driving or drug driving arrests or investigations he had conducted. During cross-examination, Officer Connor stated that he was "not trained to recognize specific signs and symptoms of the various drugs listed in Public Health Law 3306." (Transcript at 97).
On June 26, 2021, Officer Connor was working the 8:00-4:00 shift assigned to routine patrol. He was in uniform and driving a marked police cruiser. At approximately 12:19 PM, he received a radio call of a two car accident at the intersection of East Main St. and Main St. in the City of Beacon, Dutchess County. Upon arriving at the location, Office Connor observed two vehicles, a Mazda and a Honda, both with damage, pulled over to the side of the road.
After exciting his police cruiser, Officer Connor approached the driver of the Honda who was standing outside his vehicle. Upon approaching the driver, he asked for his license which was produced and Officer Connor identified the person as the defendant, Michael Torhan. Officer Connor then asked Mr. Torhan questions regarding his movements before the accident. During this conversation, Officer Connor noticed that Mr. Torhan's eyes were "a little glassy" and he was had a "mostly calm demeanor but erratic here and there." (Transcript 42-43). Mr. Torhan was asked if he had consumed any alcohol and he responded that he had not. When asked by Officer Connor if he had taken any drugs, Mr. Torhan responded that he took prescription medications and went back to his car to show Officer Torhan the prescription drug bottles. Mr. Torhan also advised Officer Connor that he had suffered a stroke and had "wet brain". He also indicated that he had diabetes and foot injuries. Officer Connor further testified that he was informed that Mr. Torhan had been prescribed vitamins B-1 and B-12 by his healthcare provider. In addition, Mr. Torhan informed Officer Connor that he had a brain scan scheduled for the next week.
"Wet Brain" also known as Wernicke's Encephalopathy "is a degenerative brain disorder caused by a lack of Thiamine (Vitamin B1)" and can cause "amnesia, tremor, coma, disorientation, and vision problems." https://www.ninds.nih.gov/Disorders/All-Disorders/Wernicke-Korsakoff-Syndrome-Information-Page
Officer Connor then performed the Horizontal Gaze Nystagmus Test which Mr. Torhan failed in that he did not keep his head still. On cross examination, Officer Connor testified that he was trained to observe the pupils of the driver during this test for irregularities and did not remember if he noticed anything out of the ordinary when performing the test on Mr. Torhan. (Transcript at 82). Officer Connor then proceeded to the "Walk and Turn Test" but testified that "we couldn't complete that test due to safety kind of reasons" and he "was kind of stumbling" and "advised us that he had, like, a blister or something on his foot." (Transcript at 49). Next, Officer Connor conducted the "One Leg Stand Test" and found that "he was unable to keep his balance" and failed that test. (Transcript at 51). Lastly, Office Connor performed a Portable Breathalyzer Test. Mr. Torhan consented to this test and the result was zero-point-zero. During cross, Officer Connor testified that after performing this test, he didn't know what, if anything, Mr. Torhan was under the influence of. (Transcript at 88). Regardless, at this point, Mr. Torhan was placed under arrest and transported to the Beacon Police Station where Miranda and refusal warnings were administered. Mr. Torhan then allegedly refused to take the chemical test. While the chronology is not absolutely clear, Officer Connor testified that at some point before Mr. Torhan was put under arrest, he learned that the vehicle had a passenger by the name of Andrew Demers who had fled the scene of the accident. During cross examination, Officer Connor was asked the following question: "Immediately upon hearing that the passenger was Andrew Demers did you not say to my client, let me see your pupils did you take PCP today?", Officer Connor responded to that question "I believe so." (Transcript at 114). Officer Connor went on to testify at cross examination that PCP use results in "dilated or constricted pupils" but he did not observe anything unusual about Mr. Torhan's pupils. (Transcript at 115). No controlled substances were found in the vehicle or on Mr. Torhan's person.
CONCLUSIONS OF LAW
In a suppression hearing, the burden is on the prosecution to first establish the legality of the police conduct (See e.g. People v. Whitehurst, 25 N.Y.2d 389, 391 [1969]; People v. Wise, 46 N.Y.2d 321, 329 [1978]). The People must present to the court not only credible evidence (People v. Berrios, 28 N.Y.2d 361 [1971]), but also facts - not merely conclusions or beliefs of the witnesses (People v. Dodt, 61 N.Y.2d 408 [1984]). Once the prosecution meets this initial burden, the defendant bears the ultimate burden of showing the illegality of the police conduct (See e.g. Berrios, 28 N.Y.2d at 367; People v. Di Stefano, 38 N.Y.2d 640, 652 [1976]).
In New York, street encounters between the police and private citizens are governed by People v. De Bour (40 N.Y.2d 210 [1976]; see also People v. Hollman, 79 N.Y.2d 181 [1992]). De Bour charted four levels of police intrusions and the quantum of suspicion necessary to justify them. Under De Bour, when the police have some objective and credible reason, not necessarily indicative of criminality, they may approach citizens to request information. A common-law right to inquire is activated when there is a founded suspicion that criminal activity is afoot. At this level, the officer's inquiry may be extended and accusatory. Where the police have a reasonable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may forcibly stop and detain that person. Finally, an arrest is authorized on probable cause to believe that a person has committed a crime.
Applying the above analysis, Officer Connor clearly had an objective and credible reason to approach Mr. Torhan and request information. Specifically, after receiving a call about an automobile accident, Officer Connor went to the location in question and engaged in a conversation with Mr. Torhan. As previously discussed, upon approaching Mr. Torhan and discussing the circumstances of the accident, Officer Connor observed Mr. Torhan to have eyes that were "a little glassy" and his behavior was somewhat "erratic." Officer Connor extended this inquiry, as permitted by De Bour, and asked Mr. Torhan if he wanted to take the standardized field sobriety tests (hereinafter "SFSTs"). Mr. Torhan consented to these tests as outlined earlier. The hearing did not establish if Mr. Torhan was free to leave at this point but, based on the results of the field sobriety tests, Officer Connor was legally permitted to detain Mr. Torhan at a De Bour Level 3. At this point, Officer Connor administered a Portable Breathalyzer Test with a result of zero-point-zero. Officer Connor testified that at this point he placed Mr. Torhan under arrest. However, as outlined previously, De Bour level 4 permits an arrest only upon probable cause to believe that person has committed a crime. No further evidence was uncovered by Officer Connor after the non-incriminatory Portable Breathalyzer Test results that created probable cause for arrest. It is the finding of the Court that Officer Connor only had De Bour Level 3 ("reasonable suspicion") basis to detain Mr. Torhan when he was arrested and, therefore, such arrest was without probable cause.
The Appellate Term of the 9th and 10th Judicial Districts applied the De Bour analysis to an allegation of driving while impaired by drugs in People v. Levine. (149 N.Y.S.3d 748 [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). In Levine, the defendant failed, after a motor vehicle accident, the SFSTs administered by the arresting officer. The defendant denied consuming alcohol and indicated that he was coming from a funeral. After failing these tests, the defendant was arrested. The arresting officer testified that "he received training with regard to the recognition of individuals impaired by drugs, which consisted of two days of lectures at the academy by various drug recognition experts, PowerPoint slides, and videos... [and] had been involved in over 20 arrests involving driving while ability impaired by drugs" Id. at 751. The Court goes on to note that "[n]otably absent from the suppression hearing was evidence of a pre-arrest admission that defendant had ingested a drug listed under Public Health Law § 3306" Id. Applying this analysis to the case presently before the Court, Officer Connor did not testify to any specific training regarding how to identify a motorist under the influence of narcotics nor could he remember how many arrests or investigations he had been involved in regarding a charge of driving while impaired by drugs. In addition, there was no admission by the defendant that he had consumed any drugs listed under Public Health Law § 3306. Rather, Mr. Torhan admitted to taking prescription Vitamin B-1 and Vitamin B-12 which are not drugs listed under Public Health Law § 3306. In People's motion, they state are that there was evidence of "physical corroboration of drug use, such as actual possession of 'prescription' (quotes in original) and associated drug paraphernalia." Drug paraphernalia is defined in New York Penal Law § 220.50 as "gelatine capsules, glassine envelopes, vials, capsules or other material suitable for the packaging of individual quantities of narcotic drugs" as well as "diluents" or "scales and balances." However, in reviewing the testimony of Officer Connor, the Court does not find any testimony suggesting the recovery of drug paraphernalia or that the recovered substances were anything but medications prescribed by a health care professional.
As mentioned previously, Officer Connor testified that he asked Mr. Torhan about the use of PCP after learning the alleged identity of the passenger of the vehicle. However, the Court notes that possession of drug paraphernalia by a passenger or evidence that the passenger is under the influence of drugs has been found to be more prejudicial that probative and therefore not admissible. (See People v. Salino, 527 N.Y.S.2d 169, [NY City Crim. Ct. 1988]).
Lastly, as to arguments by Defense and People as to whether or not Mr. Torhan should have been issued an appearance ticket for the charge of violating Penal Law § 511(1)(a), the Court does not address that issue as it is not controlling nor relevant to the admissibility of any evidence.
For these reasons, the Court grants the defendant's motion to suppress evidence of the alleged refusal to submit to a chemical test by Mr. Torhan.
This constitutes the decision and order of this Court.