The People of the State of New York v. James P. Barnard, Defendant. (2026)

History of the Case.

The defendant was charged with common law driving while intoxicated, VTL § 1192 (3), speeding, VTL § 1180 (b), turn signal violation, VTL § 1163 (d) and throwing refuse on the highway, VTL § 1220 (a) on March 1, 2026 at 8:50 P.M. on New York State Route 104 in the Town of Webster. Electronically filed with the court are four unified traffic informations. Each of which are accompanied by an electronically filed supporting deposition. Also filed with the court is a fill-in-the-blanks Supporting Deposition / Bill of Particulars. The defendant was arraigned on April 1, 2026. Subsequent to the arraignment it came to the attention of the court that a valid Report of Refusal to Submit to a Chemical Test had been filed with the court. As a result the defendant's driver license was suspended at the next court appearance, pursuant VTL § 1194 (2) pending a refusal hearing.Motion argument was conducted on May 6, 2026. Whereupon, the matter was set down for a probable cause hearing and a Huntley hearing on August 28, 2026. The People called NYS Trooper James P. Barnard, who conducted the stop and made the arrest, as their only witness. At the conclusion of the hearings the attorneys were permitted to provide the court with a written submission by way of a letter memorandum of law rather than an oral closing argument. The court did receive said submissions from both the defense and the prosecution in response.

Facts of the Case.

Trooper Barnard observed the defendant operating at a high rate of speed in an eastbound direction on Route 104. He first estimated the speed of the defendant to be 110 miles per hour in a 55 mile per hour zone. The speed of defendant's vehicle was confirmed by the Trooper's laser to be 112 miles per hour. While attempting to catch up to the defendant, the trooper observed the defendant's vehicle move from the right lane to the left lane without signaling said lane change. Upon engagement of the Trooper's emergency lights the defendant immediately pulled off the road. The Trooper approached the defendant's vehicle on the passenger side. When the defendant rolled down the said window, the trooper asked him where he was going and where he was coming from. Trooper Bernard testified that "In short, he said he knew that he was speeding and that he was going to pick up his son from work and he was coming from his house".¹ In addition, the the defendant provided the trooper with his driver license as requested. During that brief one minute 45 second encounter, the Trooper did not observe any indicia of intoxication. He then returned to his vehicle to prepare traffic tickets to be given to the defendant. Approximately ten minutes later the Trooper returned to the front passenger window of the defendant's vehicle, which the defendant rolled down to obtain the said tickets. It was at that time, for a period of approximately nine (9) seconds, that the Trooper alleged that he detected the smell of an alcoholic beverage. He then asked the defendant if he had consumed any alcoholic beverage. In response, the defendant stated he had one shot of Crown.

As a result the Trooper then directed the defendant to step out of his vehicle so that he could administer the standard field sobriety tests. During the initial time the defendant was out of his vehicle, the Trooper indicated that he observed some indicia of intoxication, namely the odor of an alcoholic beverage and that defendant had watery eyes. Although the Trooper began to administer the HGN test, the defendant refused to continue to take that test or any other tests because of alleged bad back problems. It was at that time that the defendant was put under arrest. On cross-examination the officer testified that there are five specific characteristics of intoxication exhibited by intoxicated persons, namely thick or slurred speech, flushed complexion, impaired motor coordination, odor of alcoholic beverage and bloodshot watery eyes. However, that the defendant only exhibited an odor of an alcoholic beverage and watery eyes. No body worn camera footage was entered into evidence by the People.

Issues Presented.

Did the trooper have probable cause to stop the defendant's vehicle and request to view defendant's driver licence?

Did the trooper have probable cause to direct the defendant out of his vehicle?

Was the defendant required to take the standardized roadside tests?

Did the trooper have probable cause to arrest the defendant for common law driving while intoxicated?

Legal Analysis.

Probable Cause to Stop the Defendant's Vehicle. The Court of Appeals has held that

"Under the settled law of New York, an automobile stop 'is a seizure implicating constitutional limitations' (People v. Spencer, 84 NY2d 749, 752, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]). Automobile stops are lawful only when 'based on probable cause that a driver has committed a traffic violation' (People v. Robinson, 97 NY2d 341, 349—350, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]); when based on a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime (Spencer, 84 NY2d at 752—753, 622 N.Y.S.2d 483, 646 N.E.2d 785); or, 'when conducted pursuant to " 'nonarbitrary, nondiscriminatory, uniform' " highway traffic procedures' (People v. Sobotker, 43 NY2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978])." (People v. Hinshaw, 35 NY3d 427,430. 132 N.Y.S.3d 90,92 [2020 Wilson, J])

Certainly in this case the Trooper's observation that the defendant's speed in the area of 110 miles per hour in a 55 mile per hour zone provided the necessary presumption that the defendant was committing a violation of VTL § 1180 (b). Thus the trooper was justified in stopping the defendant.

Driver License Request.It is well established law that

"Whenever a person has been lawfully stopped for a traffic infraction, the police can validly request to see the person's driver's license and registration (and related information). See, e.g., People v. Ellis, 62 NY2d 393, 396, 477 N.Y.S.2d 106, 107, 465 N.E.2d 826 (1984) ("The police officers, observing a traffic infraction, properly followed and stopped defendant and asked him for his driver's license and the rental agreement for the car."); People v. Graham, 54 AD3d 1056, , 865 N.Y.S.2d 259, 262 (2d Dep't 2008) ("the officer's observation of traffic infractions justified the initial stop and gave him 'the right to ask questions relating to the defendant's destination, to request that he produce his license and registration, and to ask him to stand by momentarily pending further investigation' ") (citation omitted); People v. Leiva, 33 AD3d 1021, , 823 N.Y.S.2d 494, 495—96 (2d Dep't 2006); People v. Derrell, 26 Misc 3d 697, , 889 N.Y.S.2d 905, 913 (NY Co. Sup. Ct. 2009). (Gerstenzang, Handling the DWI in New York § 1:27 at 58 [2025-2026 ed])

Directing a Defendant out of the Vehicle. In this case the trooper did not direct the defendant out of the vehicle during his initial contact with the defendant. That did not occur until he returned to the front passenger window to provide the defendant with uniform traffic informations for the various traffic infractions. During that second encounter he testified that he smelled the odor of alcohol. It was at that time that the defendant was directed to get out of his vehicle.

"Upon validly stopping a motor vehicle, an officer is authorized to direct the driver of the vehicle out of the car (Pennsylvania v. Mimms, 434 U.S.106, 98 S.Ct. 330, 54 L.Ed.2d 331 [1977]; People v. Robinson, 74 NY2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989]); and he may also order the passengers out of the vehicle (Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 [1997]; People v. Garcia, 20 NY3d 317, 959 N.Y.S.2d 464, 983 N.E.2d 259 [2012]) or may order them to remain inside the vehicle (People v. Forbes, 283 AD2d 92, 728 N.Y.S.2d 64 [2nd Dept. 2001]) with no additional degree of suspicion required. These rules were established for officer safety and the courts have further reasoned that allowing the officer 'unquestioned command' over this situation in this manner minimizes danger to both the officer and the occupants (Forbes, 283 AD2d at 95, 728 N.Y.S.2d 64 [quoting Maryland v. Wilson, p 414, 117 S.Ct. 882])." (People v. Miller, 74 Misc 3d 614,627-628, 161 N.Y.S.3d 630,643 [2021])

Standard Roadside Field Sobriety Tests. The defendant herein refused to complete the HGN test and refused to perform any other roadside tests. " There is no requirement, statutory or otherwise, that a DWI suspect submit to field sobriety tests." (People v. Schulman, 31 Misc 3d 1233[A], 2011 NY Slip Op. 50971[U], *4 [Parma Just. Ct. Sciortino, J.2011]) Nevertheless, "there is no statutory, nor common law prohibition against the introduction into evidence of a refusal to perform these tests."²

Probable Cause to Arrest. In New York probable cause is more accurately referred to as "reasonable cause" as defined by CPL § 70.10 (2). In fact, "it is well settled '[r]easonable cause' means probable cause."³ CPL § 70.10 (2) states as follows:

" 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."

The Court of Appeals established the standard for probable cause to arrest for driving while intoxicated in the case of People v. Vandover, 20 NY3d 235, 958 N.Y.S.2d 83 [2012].

The Court held that

" In determining probable cause, the standard to be applied is that it must 'appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice' (People v. Carrasquillo, 54 NY2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] ). Applying this standard, there is support in the record for the Appellate Term's determination that the facts did not support probable cause to arrest defendant."⁴

The facts in the Vandover case, that were presented in the probable cause hearing held in Hamptonburgh Justice Court, Orange County, are somewhat similar to the facts presented in this case. In citing the testimony of one of the officers " that defendant had glassy bloodshot eyes, breath that smelled of alcohol and a generally fatigued demeanor, found that this was insufficient to establish probable cause to arrest defendant and accordingly dismissed the charges."⁵ In fact the said dismissal was upheld on appeal by both the Appellate Term and the Court of Appeals.⁶

Furthermore, it has been held that in order to establish the more probable than not standard

"the People should provide evidence that the accused person exhibited 'dimensions of

actual physical coordination impairment.' (People v. Gullo, 51 Misc 3d 150[A], at *1 [App. Term, 2d Dep't 2016]; see also People v. Rich, 25 Misc 3d 126[A], at * 1 [App. Term, 2d Dep't 2009]). These dimensions commonly include—but, of course, are not limited to—'slurred speech and unsteadiness.' (Gullo, 51 Misc 3d 150[A], at *1; see also People v. Anzalone, 72 Misc 3d 140[A], at *1 [App. Term, 2d Dep't 2021]). Other examples of actual physical coordination impairment could include unexplained erratic driving, (People v. Hillman, 71 Misc 3d 127[A], at *2 [App. Term, 2d Dep't 2021]; People v. Mohabir, 77 Misc 3d 1219[A], at *4 [Crim. Ct., Queens County 2023]); rambling, (People v. Crane, 156 AD2d 704 [2d Dep't 1989]); traffic violations indicative of impairment, (People v. Freeman, 37 Misc 3d 142[A], at *2 [App. Term, 2d Dep't 2012]); or an accident consistent with losing control, (People v. Hogue, 136 AD3d 1351 [4th Dep't 2016]; People v. McKenzie, 52 Misc 3d 1217[A], at *3 [Crim. Ct., Kings County 2016]). (People v. Gilliland, 78 Misc 3d 1201 [A], 2023 NY Slip Op. 50129[U] [2023] *3)

It is simply not enough to prove that "that a person drank some unknown quantity of alcohol and then drove a car—without any indication of impairment".⁷ More specifically it has been held that

"Indeed, an 'odor of an alcoholic beverage,' 'glassy, bloodshot eyes,' and 'a fatigued demeanor' are 'insufficient to establish probable cause for impairment' to 'any extent.'

... These facts simply establish that the person drank some alcohol before driving a car, which alone, does not establish probable cause that the person is actually impaired. '[T]he Legislature recognized that the average person can consume a certain amount of alcohol without impairing his ability to operate a motor vehicle as he should.'....Therefore, to constitute probable cause, there must be some additional sign that the alcohol consumption—whether by direct observation or by inference—has "actually impaired" the person's physical coordination." (Internal citations omitted.)⁸

It is certainly possible that a person could have consumed a small amount of alcohol, which would result in an odor of alcohol emanating from that person's breath. At the same time that person could have watery eyes for a number of reasons other than impairment. The Court of Appeals has long maintained that

"In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice."

(People v. Carrasquillo, 54 NY2d 248, 254, 445 N.Y.S.2d 97,100 [1981])

Also, this court has previously held that

"That standard of 'more probable than not' presupposes that the officer confronting a driver engages in an analysis of what he has observed before making an arrest. That analysis would include the driver's driving performance, whether the driver exhibits any physical indicia of intoxication, whether that person is steady on his or her feet, performance on roadside sobriety tests, results of the road side breath test, statements made to the officer during the investigatory stage of the encounter and the general demeanor of the driver." (People v. Conrad, 75 Misc 3d 1224 [A], 2022 NY Slip Op. 50652 [U] *6 Webster Just Ct.[2022])

The facts in People v. Gililand, 78 Misc 3d 1021[A], 2023 NY Slip Op. 50129[U] *2 [2023], where that the arresting officer

"asked Mr. Gilliland if he had been drinking and where he was headed. Mr. Gilliland responded that he was going up to the Bronx, had not been drinking, and was the designated driver. Officer Fokianos could smell alcohol coming from the car and the passengers appeared to him to have had drank alcohol. Officer Fokianos could also smell alcohol coming from Mr. Gilliland's breath and observed him to have bloodshot, watery eyes. Neither Officer Fokianos nor Mr. Gilliland were wearing masks at the time."

In addition the defendant refused to take the chemical breath test despite being asked if he wold take the test three times.⁹ Having determined that other than switching lanes while using his cell phone the court indicated that "the record was devoid of any other possible indicia of intoxication".¹⁰ As a result, the court held that

"In sum, the People failed to establish that the police lawfully arrested Mr. Gilliland for violating V.T.L. § 1192. As a result, all the fruits flowing from that arrest—including the police's subsequent observations and the alleged refusal to take a chemical test—must be suppressed. The Ingle/Dunaway motion is granted as to the fruits of the arrest."¹¹

In this case on cross-examination the Trooper testified that upon exiting his vehicle the defendant did not stager, was not unsteady or swaying; that he had no problem standing with his legs together, he went to the rear of his vehicle his arms at his side, despite leaning near his vehicle he did not sway or stagger, that he followed the Trooper's instructions, that there was no speech impairment, that he had no problem touching his finger to the stimulus of the HGN test; that he did not have a thick tongue, slow speech, a flushed complexion nor poor motor coordination.

The case of People v. Storm, 89 Misc 3d 1253[A]. 2026 NY Slip Op. 51372 [U] [New Scotland Just Ct. Wukitsch J. 2026] is both relevant and instructive. In that case the Town Justice found, after a probable cause hearing, that there was probable cause to arrest the defendant for common law driving while intoxicated.¹² The facts presented to the court were that the defendant was involved in a two car accident. Upon arriving at the scene the Trooper observed the defendant to have various indicia of intoxication, to wit: water eyes, glassy eyes, and she emitted the odor of alcohol; that she admitted driving into the other vehicle; that she failed to properly perform the road side test of the horizontal gaze nystagmus test, the walk and turn test and the one- leg stand; the preliminary breath test rendered a positive test for alcohol.¹³ In addition, the body-worn camera footage was entered into evidence, which presumably supported the Trooper's testimony.¹⁴

In addition Town Justice Wukitsh court reiterated certain principals with which this court heartily agrees, namely that

" 'Probable cause [to arrest] does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information to support a reasonable belief that an offense has been or is being committed...' (People v Bigelow, 66 NY2d 417, 423 [1985] [Simons, J.]). In the context of a DWI arrest, the presence or absence of one or more indicia of intoxication is not determinative because a probable cause determination is based on 'the totality of the circumstances'(People v Mojica, 62 AD3d 100, 114 [2d Dept 2009]). Probable cause to arrest 'need not always be premised upon the performance of field sobriety tests or any specific number of such tests' (People v Wallgren, 94 AD3d 1339, 1341 [3d Dept 2012]; People v Kowalski, 291 AD2d 669, 670-671 [3d Dept 2002]). In short, the absence of field sobriety test results does not diminish the strength of the remaining proof of intoxication."¹⁵

However, in the case before this court, there was no motor vehicle accident, there was no road side tests, no preliminary breath test nor any evidence of any physical impairment nor lack of coordination or impaired speech. Nor was there any body-worn camera footage entered into evidence. Furthermore, "absent any other evidence tending to prove defendant's inability physically to operate his vehicle as a reasonable and prudent person, the proof of speeding is too equivocal to be given significant weight as to defendant's state of intoxication." (People v. Grennon, 36 Misc 3d 33, 35, 949 N.Y.S.2d 566,568 [2011]) The same would be true as to the charge of failure to signal a lane change. As a result the facts before the court fail the more probable than not test established in Vandover.

Huntley Hearing. Defendant's motion to suppress statements made by the defendant to Trooper Bordonaro prior to the arrest is hereby denied. Specifically the statement made by the defendant to the Trooper that he had one shot of crown was voluntarily made and not the product of custodial interrogation. (See People v. Zapata, 41 AD3d 109, 837 N.Y.S.2e 110 [1st Dept 2007])

Conclusion.

The evidence elicited at the probable cause hearing failed to establish that it was more probable than not that the defendant was actually impaired. As a result the charge of common law driving while intoxicated is hereby dismissed. The motion to suppress pre-arrest statements made by the defendant to the Trooper is denied for the reasons set forth herein.

Dated: October 16, 2026

Webster, New York

Hon. Thomas J. DiSalvo

Webster New York

FOOTNOTES

1.   (Transcript at 12.)

2.   (Gerstenzang, Handling the DWI in New York § 6:2 at 200 [2025-2026 ed])

3.   (Id. at § 1:32 at 64)

4.   (Id at 237,84)

5.   (Id. at 238, 85)

6.   (Id. at 239,85)

7.   (Id. at *4)

8.   (Id.)

9.   (Id.)

10.   (Id. at *5)

11.   (Id.)

12.   (Id. at *3)

13.   (Id. at *1 - *2)

14.   (Id. at *1)

15.   (Id. at *2)

Thomas J. DiSalvo, J.