The People of the State of New York v. Miguel Velez, Defendant (2026)

The defendant stands charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, VTL §§ 1192(1); 1192(2); 1192(3); 1192(4); 1192(4)(a); Unlicensed Operator, VTL § 509; and Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, VTL § 509(1)(A). The defendant now challenges the lawfulness of his arrest and moves to suppress his noticed and unnoticed statements, observations by police, and the results of his chemical blood test.

On May 13, 2026, the court held a combined Dunaway/Huntley/Mapp hearing. The People called one witness, Officer Guadeloupe Velez. Officer Velez has been a member of the New York Police Department for eleven years and is currently assigned to the Domestic Violence Unit. Prior to that assignment, Officer Velez was assigned to the 62nd Precinct for ten years where his duties were to patrol that precinct. The Court found Officer Velez's testimony to be credible. The defendant did not call any witnesses. After considering the testimony of Officer Velez, the arguments proffered by counsel, and the related exhibits offered into evidence, the defendant's motion to suppress is GRANTED.

FINDINGS OF FACT

After due consideration of the credible evidence the court makes the following findings of fact. On August 8, 2025, Officer Velez and his partner Officer Valentine were in uniform, assigned to a marked police vehicle where they were on patrol. At approximately 5: 55 pm, Officer Velez and his partner arrived at 377 Bay 8th Street in response to a 911 call of a man and woman who were both intoxicated standing in front of a vehicle. The record is devoid of any further details regarding the 911 call.

Upon arriving at the location, EMS were already on the scene. Officer Velez approached the driver's side of the BMW while his partner approached the passenger side. The defendant was seated in the reclined driver's seat asleep. The car was parked, and the engine was off. The record is also unclear as to whether the car was parked legally. However, Officer Velez's Body Worn Camera video depicts cars parked in front of the defendant's car. Officer Velez testified that he observed the defendant to be profusely sweating and told him to step out of the car as he believed the defendant was sick.

When the defendant stepped out of the car, Officer Velez patted him down for weapons and escorted the defendant to the ambulance. During this time, Officer Velez observed the defendant to have red watery eyes and to be profusely sweating. Officer Velez asked the defendant if he was okay and the defendant stated in sum and substance that he just came out of work and he pulled to the side of the road because he was tired.

The defendant entered the ambulance and was medically treated. During the defendant's treatment, he stated to one of the EMTs that he had a couple of shots. Upon receiving this information, Officer Velez and his partner made the determination that the defendant and his passenger would not be able to drive his car based on the defendant's condition and the fact that the passenger had been observed rolling a marijuana cigarette during Officer Velez's initial approach.

Officer Velez also made the determination that the defendant was intoxicated in that he detected an odor of alcohol and slurred speech. No PBT was performed. Nor did Officer Velez perform any sobriety field tests.

The defendant made a phone call to his father, the registered owner of the car, in the presence of Officer Velez. During the call the defendant stated in Spanish in sum and substance that he didn't do anything, he wasn't intoxicated, he felt tired, and that he had consumed four or five shots. Officer Velez testified that he understood the substance of defendant's phone conversation as he is fluent in Spanish. During this time, the defendant continued to receive treatment from EMS while the officers waited for their supervisor to arrive on the scene.

At one point Officer Valentine can be heard on Body Worn Camera video stating to the defendant that it was either jail or the hospital. The defendant was then transported to Maimonides hospital where he consented to his blood being drawn. Miranda warnings were given at the hospital, and the defendant's blood was drawn at 8:36 P.M. The results of defendant's chemical test revealed a blood alcohol content of .11% as well as the presence of TCH.

CONCLUSIONS OF LAW

On a motion to suppress evidence, the People bear the initial burden of going forward with evidence to establish the legality of the police conduct in question (People v. Washington, 107 AD3d 4, 15 [2d Dept 2013]; People v. Dodt, 61 NY2d 408 [1984]; and People v. Berrios, 28 NY2d 361, 367 [1971]). Once the People have met their burden, it shifts to the defendant to show the illegality of the police conduct (Berrios, 28 NY3d at 367).

Without a reasonable suspicion of criminal activity, it is improper for the police to direct occupants out of a stationary parked vehicle. See, People v. Eugenio, 185 AD3d 1050 (2d Dept 2020), wherein the Court held that the defendant was improperly requested to exit his vehicle.

A traffic stop is a seizure and is permissible under the Fourth Amendment and Article 1 § 12 of the New York State Constitution when "a police officer has probable cause to believe the driver of an automobile has committed a traffic violation" (People v. Guthrie, 25 NY3d 130, 133 [2015]) (citing to People v. Robinson, 97 NY2d 341, 354 [2001]) (see also, People v. Livigni, 88 AD2d 386 [1982]). It is well established that a stop which is justified at its inception may be rendered unlawful by unwarranted police action taken as the confrontation progresses (Terry v. Ohio, 392 US 1, 18 [1968).

At a Huntley hearing, the people bear the burden of establishing beyond a reasonable doubt that any statements made by a defendant to law enforcement were made voluntarily (People v. Huntley, 15 NY2d 72 [1965]). A defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v. Arizona, 384 U.S 436 [1966]). Both elements of police custody and interrogation must be present before the warnings must be given (People v. Huffman, 41 NY2d 29 [1976]); People v. Berkel, 97 AD3d 836 [2d Dept. 2012]).

Exempt from interrogation are spontaneous statements not the product of any inducement, provocation, encouragement, or acquiescence on their part (People v. Maerling, 46 NY2d 289 [1978]). Additionally, in deciding whether a defendant was in custody for the purpose of Miranda warnings, the subjective belief of the defendant is not the determinative factor but rather what a reasonable person, innocent of any crime, would have thought had they been in the defendant's position (People v. Yukl, 25 NY2d 585 [2012]).

When physical evidence is sought to be suppressed, the People must go forward with evidence tending to demonstrate a lawful rationale for the police conduct (People v. Defrain, 204 AD2d 1002 [1994]). However, the defendant has the ultimate burden of proving a lack of legal basis for the police action by a preponderance of the evidence (People v. Milhouse, 246 AD2d 119 [1998]).

To be reliable enough to establish probable cause for arrest as a matter of law, an anonymous tip must include a report of criminal activity, sufficiently detailed information that indicates the informant's reliability and convey information showing a reliable basis for the informant's knowledge of the reported criminal activity (People v. Edwards, 95 NY2d 486, 495 [2000]). Courts have long recognized that the "role of the police in society is a multifaceted one" and that the police have an "obligation . . . to render assistance to those in distress" (People v. De Bour, 40 NY2d 210, 218 [1976]).

Two-Hour Rule

The statutory basis for the "two-hour rule" is Vehicle and Traffic Law 1194(2)(a)(1). It provides, in relevant part, that "[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test . . . for the purpose of determining the alcoholic and/or drug content of the blood . . . within two hours after such person has been placed under arrest." The two-hour time period commences at the time of the arrest.

The two-hour rule serves two basic functions. It creates a window of presumptive reliability for any chemical test administered within two hours of a defendant's arrest, and it also creates a temporal limitation on when evidence of a refusal may be admitted into evidence at trial (see, People v. Atkins, 85 NY2d 1009 [1995] wherein the Court admitted the results of a BAC for drugs into evidence where the defendant consented to take the test within two hours but the test was not actually administered until two hours and 28 minutes after the arrest).

However, where consent to and administration of the blood-alcohol test occurs more than two hours after the arrest, the prosecution will not be entitled to the statutory presumption that a blood-alcohol test properly administered within the two-hour period is presumptively reliable and will be admitted into evidence. Rather, the People must prove at a hearing by expert testimony that the test administered more than two hours after arrest is scientifically reliable (People v. Victory, 166 Misc 2d 549 [Kings County Crim Ct 1995]).

DICUSSION

As an initial matter, this Court must determine whether the police action was "justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place" (People v. Wheeler, 2 NY3d 370, 374 [2004]; People v. Packer, 49 AD3d 184, 185 [1st Dept aff'd 10 NY3d 915 [2008]).

Here, the police were dispatched to the location based upon an anonymous 911 call which alleged that two individuals, appearing to be intoxicated, were standing next to a vehicle at the identified location. There is no information that this tip came from an identified citizen informant, which would have lent it more credibility and reliability. Nor is there any information as to how the tipster ascertained that the two individuals were "intoxicated"—no basis of knowledge. More importantly, however, the 911 call does not allege that any illegal behavior had occurred.

In People v. William II, 98 NY2d 93, 99 (2002), the Court of Appeals described in detail what is required for police to act on an anonymous tip, explaining that reasonable suspicion "requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Additionally, the Court held that since the anonymous tip in question "lacked predictive information" that would permit the police to test the caller's knowledge, and since the police frisked the defendant based solely on the anonymous tip, reasonable suspicion was lacking.

Similarly, in People v. Argyris, 24 NY3d 1138, 1141 (2014), a case that is factually similar to this case, the police received an anonymous tip that the driver of a car was either "sick or intoxicated." In evaluating the legality of the police conduct, the Court held that the anonymous caller's "cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff's deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated."

A vehicle stop by the police is a De Bour level 3 seizure requiring reasonable suspicion that a crime has been committed, is being committed, or is about to be committed (People v. Garcia, 20 NY3d 317, 319-320 [2012]). Without a reasonable suspicion of criminal activity, it is improper for the police to direct occupants out of a stationary parked vehicle. See, People v. Eugenio, 185 AD3d 1050 (2d Dept 2020), wherein the Court held that the defendant was improperly requested to exit his vehicle:

The Officer, upon observing the defendant unconscious behind the wheel of a parked vehicle with the engine running, had an objective, credible reason, not necessarily indicative of criminality, for his initial approach of the defendant's vehicle, authorizing him to request information from the defendant Where like here, a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of any criminality at that point, requesting the occupant to step out of the vehicle creates a new unauthorized restraint.

Here, when the police arrive the defendant is asleep in the driver's seat, with the seat reclined and the car is off. The defendant appears to be sweating profusely. Officer Velez testified that when he ordered the defendant out of the vehicle, he believed the defendant to be sick, and that he did not have enough evidence of intoxication to arrest him.

Far from having enough evidence to effectuate an arrest, Officer Velez did not even possess the legal authority to order the defendant out of the parked vehicle. The anonymous tip of alleged intoxication was woefully insufficient. Moreover, the only suspicion that Officer Velez had at that moment was that the defendant might potentially be sick. The police had the right to make a common law right of inquiry to check on the welfare of the defendant, but their authority stopped there.

Everything that transpired following the defendant being illegally ordered out of his vehicle must be suppressed. The police cannot use evidence illegally obtained following this illegal seizure to justify their subsequent actions. A police encounter can never be "validated by a later-acquired suspicion" (People v. McIntosh, 96 NY2d 521, 527 [2001]) (citing People v. DeBour, 40 NY2d 210, 215-216 [1976]; see also, People v. McCarthy, 14 NY2d 206, 209 [1964]; and People v. O'Neill, 11 NY2d 148, 153 [1962]).

Moreover, Officer Velez never had any evidence of impairment, only consumption. No one ever saw this defendant operate the vehicle, which was always parked. The defendant was not given a preliminary breath test (PBT), nor was he given any field sobriety tests. Even if the statements made by the defendant to his father and to the EMS personnel regarding his alcohol consumption were admissible—which they are not—they do not establish impairment. Probable cause to arrest someone for driving under the influence is not established where there is proof of consumption of alcohol or drugs but no actual proof of impairment (People v. Vandover, 20 NY3d 235, 237 [2012]). Therefore, Officer Velez never had probable cause to make an arrest.

Finally, a valid arrest, or the result from a lawfully requested PBT test, is a prerequisite to requiring someone to submit to a chemical test pursuant to VTL 1194(2)(a). Therefore, since the police did not possess sufficient evidence to justify a level 3 seizure, let alone a level 4 arrest, their request that defendant submit to a chemical test was illegal and must be suppressed. The timing of the test is moot.

This constitutes the Decision and Order of the court.

ORDERED: All statements, noticed and unnoticed, following the defendant's illegal seizure in being ordered out of the parked vehicle are hereby suppressed.

ORDERED: All observations by the police following the defendant's illegal seizure in being ordered out of the parked vehicle are hereby suppressed.

ORDERED: The results from the defendant's chemical blood test are hereby suppressed.

Dated: July 1, 2026

ENTER:

Hon. Jevet T. Johnson

Judge, Criminal Court

Jevet T. Johnson, J.