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District Court, Suffolk County, New York.

The PEOPLE of the State of New York, v. Colin O'REILLY, Defendant.

Decided: June 22, 2007

Thomas J. Spota III, District Attorney, Central Islip (Rashika N. Hettiarachchi of counsel), for plaintiff. Dawn M. Flower, Huntington, for defendant.

The defendant is charged with Driving While Intoxicated in violation of VTL 1192(3), Failing to Maintain Lane in violation of VTL 1128(a), and two counts of Failing to Stop at a Stop Sign in violation of VTL 1172(a).   On April 27, 2007, a Dunaway/Huntley/Mapp and refusal hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including evidence of statements allegedly made by the defendant and evidence of the defendant's refusal to submit to a breath test.   The parties were given the opportunity to submit written closing statements, which have since been received.

The sole witness at the hearing was Police Officer Robert Talay, a police officer with the Suffolk County Police Department, who testified on behalf of the People.   Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

Officer Talay, Shield Number 4286, Command 610, has been a police officer with the Suffolk County Police Department for twenty years and is assigned to the Sixth Precinct patrol section.   He has experience and training in DWI detection, and has made over 400 DWI arrests.

On the evening of June 29, 2006, Officer Talay was on patrol in a marked patrol car, working a 9:00 p.m. to 7:00 a.m. tour of duty.   At approximately 11:50 p.m. on that date, the officer was driving on Route 25A in Setauket, Town of Brookhaven, County of Suffolk, when he observed a vehicle in front of him traveling westbound on Route 25A at a high rate of speed in a 45 mile per hour zone.   The officer followed the vehicle, attempting to close the distance between the two vehicles.   The defendant's vehicle made a right turn onto Ridgeway Avenue.   The officer observed that the vehicle's wheels crossed over the double solid yellow lines on Ridgeway Avenue and that the vehicle drove through two stop signs without coming to a stop.

Officer Talay put on his emergency lights and pulled the vehicle over onto the shoulder of Ridgeway Avenue.   The officer approached the vehicle and asked the driver, whom he identified as the defendant, for his license, registration and insurance card.   The defendant fumbled as he produced his license and insurance card, and the officer observed that an odor of alcohol was coming from the vehicle.   The officer asked the defendant if he'd been drinking, and the defendant answered “I had a few drinks tonight.”   The officer observed that the defendant had slurred speech and that his eyes were glassy and bloodshot.

The officer asked the defendant to step out of the vehicle and to walk to the rear of the vehicle.   The defendant was very unsteady on his feet and had to use a hand to brace himself on the side of the vehicle in order to get out and walk to the rear of the vehicle.   The officer administered several field sobriety tests to the defendant, specifically, the horizontal gaze nystagmus (HGN) test, the walk and turn test, the one-legged stand and the SD-2 alco-sensor field breath test, all of which he failed.   At approximately 11:50 p.m., Officer Talay made a determination that the defendant was intoxicated.   He place the defendant under arrest and transported him to the Sixth Precinct, detecting the odor of an alcoholic beverage in the car during the ride.

At 12:46 a.m., after processing the defendant, Officer Talay read the “chemical test request” portion of the Alcohol/Drug Influence Report (AIR) to the defendant (People's Exhibit 1).   When asked if he would submit to a chemical test, the defendant asked to speak to a lawyer.   The officer then read the Miranda warnings to the defendant and the questions printed in that portion of the form.   The defendant again indicated that he wished to contact a lawyer and did not wish to talk to the officer without a lawyer.   The defendant was given the opportunity to make a phone call at 12:50 a.m., and he received a call at 1:03 a.m. The officer's testimony indicated that he assumed the call was from the defendant's attorney, but when pressed on the issue, the officer testified that the defendant talked to “somebody.”

At 1:24 a.m. and 1:34 a.m., Officer Talay asked the defendant if he would submit to a chemical test, and the defendant gave no response.   At 1:36 a.m., attorney John Demonico called and spoke with Officer Talay, informing him that he was the defendant's attorney.   At 1:40 a.m., Officer Talay asked the defendant if his attorney had advised him to take a chemical test or not, and the defendant's response was “No.” The officer asked the defendant to initial the form he had read to him and indicate either “consent” or “refuse” on the form.   The defendant wrote the word “refuse” and signed his name in the space provided on the form.

Conclusions of Law

 A traffic stop constitutes a limited seizure of the person of each occupant of the vehicle which, to be constitutional, must be justified at its inception.  People v. Banks, 85 N.Y.2d 558, 562, 626 N.Y.S.2d 986, 650 N.E.2d 833 (1995), cert. den. 516 U.S. 868, 116 S.Ct. 187, 133 L.Ed.2d 124 (1995).   Officer Talay's observations of the defendant's numerous violations of the Vehicle and Traffic Law, including speeding, crossing over the double yellow lines and driving through two stop signs without stopping, provided the officer with a lawful basis for stopping the vehicle.  People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 (2001);  People v. Irizarry, 282 A.D.2d 483, 730 N.Y.S.2d 111 (2d Dept.2001), lv. den. 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159 (2002);  VTL 1128(a), 1160(a).

 Probable cause for a driving while intoxicated arrest exists if the arresting officer can demonstrate reasonable grounds to believe the defendant had been driving in violation of VTL 1192.   See, People v. Kowalski, 291 A.D.2d 669, 738 N.Y.S.2d 427 (3rd Dept.2002);  People v. Poje, 270 A.D.2d 649, 706 N.Y.S.2d 733 (3rd Dept.2000), lv. den. 95 N.Y.2d 802, 711 N.Y.S.2d 170, 733 N.E.2d 242 (2000).   Officer Talay's observations of the manner in which the defendant drove his vehicle, together with his observations of the odor of alcohol emanating from the defendant's vehicle, the defendant's physical condition, slurred speech, bloodshot and glassy eyes, unsteadiness on his feet, his failing of the field sobriety tests and his admission that he'd been drinking, were sufficient to provide the officer with reasonable grounds to believe the defendant had been driving in violation of VTL 1192 and provided probable cause for the arrest for Driving While Intoxicated.   See, People v. Kowalski, supra;  People v. Lamb, 235 A.D.2d 829, 830-831, 653 N.Y.S.2d 395 (3rd Dept.1997);  People v. Kalwiss, 6 Misc.3d 129(A), 2005 N.Y. Slip Op. 50057[U], 2005 WL 268027 (App. Term, 9th & 10th Jud. Dists.2005);  People v. McClaney, 135 A.D.2d 901, 521 N.Y.S.2d 894 (3rd Dept.1987);  CPL 140.10(1).   The Court accordingly finds that the defendant's stop and arrest were based on probable cause, and the evidence obtained as a result thereof is not subject to suppression on that ground.

 A defendant who has been temporarily detained pursuant to a routine traffic stop is not considered to be in custody for Miranda purposes.   See, People v. Myers, 1 A.D.3d 382, 383, 766 N.Y.S.2d 581 (2d Dept.2003), lv. den. 1 N.Y.3d 631, 777 N.Y.S.2d 30, 808 N.E.2d 1289 (2004);  People v. Parris, 26 A.D.3d 393, 809 N.Y.S.2d 176 (2d Dept.2006), lv. den. 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980 (2006);  People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 (3rd Dept.1998), lv. den. 92 N.Y.2d 982, 683 N.Y.S.2d 763, 706 N.E.2d 751 (1998);  see also, People v. Mackenzie, 9 Misc.3d 129(A), 2005 N.Y. Slip Op. 51535[U], 2005 WL 2358350 (App. Term, 9th & 10th Jud. Dists.2005), lv. den. 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 (2005).   A reasonable initial interrogation during such a stop is therefore held to be merely investigatory and does not require Miranda warnings.   See, People v. Mackenzie, supra;  see also, People v. Mathis, 136 A.D.2d 746, 523 N.Y.S.2d 915 (2d Dept.1988), lv. den. 71 N.Y.2d 899, 527 N.Y.S.2d 1009, 523 N.E.2d 316 (1988).

 Officer Talay's temporary roadside detention of the defendant, after stopping the defendant's vehicle for a traffic infraction, was permissible and non-custodial in nature, and the officer was not required to administer Miranda warnings before conducting his initial roadside investigation.   The defendant's statement “I had a few drinks tonight,” in response to the officer's question if he'd been drinking, was not obtained by means of coercion or unfairness.   The Court accordingly finds that this roadside statement was voluntary and is admissible at trial.   See, People v. Mathis, supra;  see also, People v. Swan, 277 A.D.2d 1033, 716 N.Y.S.2d 194 (4th Dept.2000), lv. den. 96 N.Y.2d 788, 725 N.Y.S.2d 652, 749 N.E.2d 221 (2001);  People v. Kearney, 288 A.D.2d 398, 733 N.Y.S.2d 460 (2d Dept.2001);  People v. Noonan, 220 A.D.2d 811, 632 N.Y.S.2d 675 (3rd Dept.1995).

 Alcohol screening tests are considered sufficiently reliable to indicate the presence of alcohol in a person's breath for the purpose of establishing probable cause for an arrest, but are not sufficiently reliable to determine the actual blood alcohol concentration.   See, People v. Thomas, 121 A.D.2d 73, 76, 78-79, 509 N.Y.S.2d 668 (4th Dept.1986), affd. 70 N.Y.2d 823, 523 N.Y.S.2d 437, 517 N.E.2d 1323 (1987).   Unlike field coordination tests, alcohol screening tests are not probative of the issue of intoxication and the results are not admissible at trial (see, People v. Thomas, supra, 70 N.Y.2d at 825, 523 N.Y.S.2d 437, 517 N.E.2d 1323;  People v. Wright, 1 Misc.3d 133(A), 781 N.Y.S.2d 627 [App. Term, 9th & 10th Jud. Dists.2003] ), unless probative of some other issue (see, People v. Thomas, supra, 70 N.Y.2d at 825, 523 N.Y.S.2d 437, 517 N.E.2d 1323;  People v. MacDonald, 227 A.D.2d 672, 641 N.Y.S.2d 749 [3rd Dept.1996], Affd. 89 N.Y.2d 908, 653 N.Y.S.2d 267, 675 N.E.2d 1219 [1996];  VTL 1194[2] ).   The SD-2 field test results therefore shall not be admitted into evidence at trial unless their relevance is otherwise demonstrated (see, People v. Thomas, supra, 70 N.Y.2d at 825, 523 N.Y.S.2d 437, 517 N.E.2d 1323).

 Turning to the refusal issue, the defendant invoked his right to counsel when first asked if he would submit to a chemical test of his blood, and again when he was read the Miranda warnings, also stating that he did not wish to speak to the officer without his attorney present.   A defendant has a qualified right to consult with a lawyer before deciding whether to consent to a chemical test, provided he makes such a request and no danger of delay is posed.   See, People v. Gursey, 22 N.Y.2d 224, 229, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968);  People v. DePonceau, 275 A.D.2d 994, 715 N.Y.S.2d 197 (4th Dept.2000), lv. den. 95 N.Y.2d 962, 722 N.Y.S.2d 480, 745 N.E.2d 400 (2000).   Although the defendant received a telephone call at 1:03 a.m., it cannot be determined from the record whether the person he spoke with was an attorney.   The record does establish that John Demonico called the precinct at 1:36 a.m. and identified himself as the defendant's attorney.

 Officer Talay's two requests that the defendant submit to a chemical test, made before the 1:36 a.m. call by defendant's attorney, were made in violation of the defendant's qualified right to counsel, since the record does not clearly show that the defendant was able to speak with an attorney before the requests were made.   After counsel's call at 1:36 a.m., the officer improperly asked the defendant to disclose the content of a privileged communication by asking him if his attorney had advised him to take a chemical test or not, interpreting the defendant's negative response to his question as a refusal.

 The defendant's negative response to the officer's improper question was obtained in violation of his Sixth Amendment right to counsel, and the statement itself is subject to suppression on that ground.   In addition, it is not clear that this statement was intended to express the defendant's refusal to take the test.   The defendant's answer “no” was ambiguous, as the defendant could have meant either that his attorney had not told him whether or not to take the test, or that his attorney had advised him not to take it.   Evidence of a defendant's refusal to submit to a chemical test is not admissible at trial unless the People show that the defendant “was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that [he] persisted in the refusal.” VTL 1194(2)(f);  see, People v. Thomas, 46 N.Y.2d 100, 108, 412 N.Y.S.2d 845, 385 N.E.2d 584 (1978).   The People have not met their burden of demonstrating that the defendant refused to take the chemical test and that he persisted in his refusal, and this evidence shall not be admitted at trial.   See, VTL 1194(2)(f);  see also, People v. Thomas, supra, 46 N.Y.2d at 108, 412 N.Y.S.2d 845, 385 N.E.2d 584;  People v. Ratchford, 3 Misc.3d 1109(A), 787 N.Y.S.2d 680 (Dist. Ct., Suffolk Co.2004).

This constitutes the decision and order of the Court.

The parties are directed to appear on the New Court Date indicated below.