People v Herrera

[*1] People v Herrera 2009 NY Slip Op 50573(U) [23 Misc 3d 1104(A)] Decided on April 1, 2009 Suffolk Dist Ct Alamia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2009
Suffolk Dist Ct

The People of the State of New York,

against

Patricio R. Herrera, Defendant.



2007SU71683



THOMAS M. SPOTA, III

Suffolk County District Atty.

By: Michael S. Ross

Assistant District Attorney

400 Carleton Avenue

Central Islip, NY 11722

Jacqueline A. St. John

Attorney for Defendant

100 Alcott Place No.20D

Bronx, NY 10475

Salvatore A. Alamia, J.

The defendant is charged with Driving While Intoxicated in violation of VTL 1192(3) and Failing to Maintain Lane in violation of VTL 1128(a). On October 28, 2008, a Dunaway, Mapp, Huntley and refusal hearing was held to determine the admissibility at trial of evidence obtained against the defendant. The parties were given additional time to submit written closing statements, which have now been received.

The sole witness at the hearing was Police Officer David J. Weinerman, a member of 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 Weinerman has been an officer with the Suffolk County Police Department since 1998, and has made approximately 100 DWI arrests and approximately 200 arrests overall. On December 24, 2007, Officer Weinerman was on patrol on a 3:00 p.m. to 11:00 p.m. tour of duty. At approximately 9:00 p.m. that evening, the officer received two radio dispatches that a silver Lincoln Towncar traveling eastbound on the Long Island Expressway had been reported by 911 callers to be swerving out of its lane. The officer positioned his patrol car on the Expressway east of the reported locations and soon observed a vehicle matching the description and license plate given in the reports, traveling eastbound on the Expressway near Exit 59 in the Town of Brookhaven, County of Suffolk. As the officer observed the vehicle, it swerved over the right lane marking onto the shoulder of the roadway. [*2]

Officer Weinerman pulled the vehicle over at approximately 9:10 p.m., approached the vehicle and spoke to the driver, whom he identified as the defendant. As the defendant produced his driver's license, the officer observed that he had an odor of alcohol emanating from his breath and that his eyes were bloodshot and glassy. The officer asked the defendant to step out of his vehicle and observed that the defendant was unsteady on his feet. Officer Weinerman asked the defendant what he'd been drinking tonight, and the defendant replied "Wine." The officer then asked the defendant how much wine he'd had, and the defendant answered "2 or 3, not sure."

Officer Weinerman attempted to administer field sobriety tests to the defendant, but the defendant had difficulty in performing them as directed. The defendant did not follow the officer's instructions for the horizontal gaze nystagmus (HGN) test after three unsuccessful attempts. The officer explained the one-legged stand test to the defendant and demonstrated it for him, but after three attempts the defendant was unable to keep his foot raised for more than two seconds. The officer also explained and demonstrated the walk and turn test to the defendant, but the defendant took only seven steps and then stopped. Officer Weinerman attempted to administer an SD-2 field breath test to the defendant as well, but after two attempts the defendant did not provide a sufficient air sample, although a reading of .14% was obtained on the second attempt.

Officer Weinerman placed the defendant under arrest for Driving While Intoxicated at 9:27 p.m., based on his observations of the manner in which he had operated his vehicle, his physical condition and his admission that he had consumed alcohol, and transported him to the Fourth Precinct in Hauppauge. At 9:54 p.m., Officer Weinerman read the "chemical test request" portion of the Alcohol/Drug Influence Report (AIR) to the defendant (People's Exhibit 1). The officer asked the defendant to initial the form to indicate that he understood the request and warnings, but the defendant placed his initials in the wrong location on the form. Officer Weinerman then circled the correct location on the form and asked the defendant to place his initials in the circle to indicate that he understood. The defendant placed his initials inside the circle on the form where shown to by the officer.

The officer asked the defendant to submit to a chemical test, and testified that the defendant refused. The defendant wrote the word "refuse" in the appropriate space provided on the form, but did not place his signature on the form. After this, the officer asked the defendant booking questions such as his address. At 10:12 p.m., the officer repeated his request that the defendant submit to a chemical test, and the defendant answered "No." The officer made a third request at 10:30 p.m., to which the defendant again answered "No." Officer Weinerman testified that everything was conducted in English. The officer did not speak to the defendant in Spanish at any time, nor did he ask if anyone at the Precinct spoke Spanish.

Conclusions of Law

Officer Weinerman's observations that the defendant's vehicle failed to maintain its lane and drifted over the white line onto the shoulder of the Long Island Expressway, in violation of [*3]the Vehicle and Traffic Law, provided the officer with a lawful basis for stopping the vehicle. People v. Robinson, 97 NY2d 341 (2001); People v. Irizarry, 282 AD2d 483 (2d Dept. 2001), lv. den. 97 NY2d 729 (2002); VTL 1128(a). In addition, the officer's observations corroborated the radio dispatches he had received that a vehicle matching the description of the defendant's vehicle and bearing the same license place had failed to maintain its lane of traffic on the Expressway. The officer's observations of the defendant's physical condition, the odor of alcohol on his breath and his admission that he'd consumed alcohol gave the officer probable cause to arrest the defendant for Driving While Intoxicated. See, People v. Kowalski, 291 AD2d 669 (3rd Dept. 2002); People v. Lamb, 235 AD2d 829, 830-831 (3rd Dept. 1997); People v. Kalwiss, 6 Misc 3d 129A, 2005 NY Slip Op 50057U (App. Term, 9th & 10th Jud. Dists. 2005); People v. McClaney, 135 AD2d 901 (3rd Dept. 1987); CPL 140.10(1). The Court accordingly finds that evidence obtained as a result of the defendant's stop and arrest is not subject to suppression for lack of probable cause.

A defendant who has been temporarily detained pursuant to a roadside investigation, including a suspected driving while intoxicated offense, is not considered to be in custody, and limited questioning appropriate to such an investigation and the administration of performance tests does not require Miranda warnings. See, People v. Mackenzie, 9 Misc 3d 129A, 2005 NY Slip Op 51535U (App. Term, 9th & 10th Jud. Dists. 2005), lv. den. 5 NY3d 807 (2005); People v. Myers, 1 AD3d 382, 383 (2d Dept. 2003), lv. den. 1 NY3d 631 (2004); People v. Parris, 26 AD3d 393 (2d Dept. 2006), lv. den. 6 NY3d 851 (2006). Officer Weinerman's temporary detention of the defendant was permissible and non-custodial in nature, and he was not required to administer Miranda warnings before conducting his investigation.

The defendant's statements that he'd had wine and that he'd had "two or three, not sure," were made in the course of the officer's permissible investigation and were not obtained by means of coercion or unfairness. The Court accordingly finds that these roadside statements were voluntary and are admissible at trial. See, People v. Mathis, 136 AD2d 746 (2d Dept. 1988), lv. den. 71 NY2d 899 (1988); see also, People v. Swan, 277 AD2d 1033 (4th Dept. 2000), lv. den. 96 NY2d 788 (2001); People v. Kearney, 288 AD2d 398 (2d Dept. 2001); People v. Noonan, 220 AD2d 811 (3rd Dept. 1995).

In order for evidence of a defendant's refusal to submit to a chemical test to be admissible at trial, the People must show that the request was made within two hours of the defendant's arrest or within two hours after a breath test (see, VTL 1194[2][a]; People v. Brol, 81 AD2d 739 [4th Dept. 1981]), and 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 NY2d 100, 108 (1978). There is no issue as to the timeliness of the requests, which were made within two hours of the defendant's arrest in compliance with statutory requirements.

The Court is not satisfied, however, that this Spanish-speaking defendant had sufficient command of the English language to comprehend the chemical test request and the consequences of refusing such a test. The request and refusal warnings were read to the defendant from the AIR form only once, and in the English language. The defendant initialed the wrong area of the [*4]AIR form before being prompted to place his initials in a circle drawn by the officer at the desired location on the form, suggesting a lack of comprehension on the defendant's part. The defendant's earlier inability to follow the officer's instructions for the HGN test similarly evinced a lack of proficiency in English, and his incomplete performance of the walk and turn test suggests to this Court that he was imitating the officer's abbreviated demonstration of the test rather than following his verbal instructions for its completion.

The statutory requirements that a defendant be given a clear and unequivocal explanation of the consequences of refusing to take a chemical test, and that he make a persistent refusal to take the test, require that he have a basic level of understanding of the language in which the warnings are given. No attempt was made to offer the defendant a Spanish version of the AIR form or a Spanish videotape of the request and warnings, as is the practice in some precincts, nor even to obtain the assistance of a Spanish-speaking officer or department member. See, e.g., People v. Garcia-Cepero, 22 Misc 3d 490 (Sup. Ct., Bronx Co. 2008); People v. Burnet, 2009 NY Slip Op 29107 (Sup. Ct., Bronx Co. 2009); People v. Torres, 2004 NY Slip Op 51201U (Crim. Ct., Queens Co. 2004); People v. Coludro, 166 Misc 2d 662 (Crim. Ct., Kings Co. 1995). While there is no constitutional or fundamental right to an interpreter during the chemical test process (see, e.g., People v. Burnet, supra ), the People still must establish that a defendant with limited proficiency in English was sufficiently apprised of the consequences of a refusal. The Court finds that the People have not met their burden under the facts of this case, and evidence of the defendant's refusal therefore shall not be admitted at trial.

Finally, the SD-2 field test results shall not be admitted into evidence at trial, as indicated at the hearing. Alcohol screening tests may indicate the presence of alcohol in a person's breath for the purpose of establishing probable cause for an arrest, but are not otherwise probative of the issue of intoxication, and neither the test results nor a defendant's refusal to submit to such a test are generally admissible at trial. See, People v. Thomas, 121 AD2d 73, 76, 78-79 (4th Dept. 1986), affd. 70 NY2d 823, 825 (1987); People v. Wright, 1 Misc 3d 133A, 781 NYS2d 627 (App. Term, 9th & 10th Jud. Dists. 2003). The Court also finds that the defendant would be unduly prejudiced by the introduction into evidence of his performance of the HGN test and other field sobriety tests, as his difficulties in following the officer's instructions for these tests may be attributed to his limited proficiency in English. This evidence similarly shall not be admissible at trial.

This constitutes the decision and order of the Court.

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

New Court Date:

Dated:J.D.C.

THOMAS M. SPOTA, III

Suffolk County District Atty.

By: Michael S. Ross

Assistant District Attorney

400 Carleton Avenue

Central Islip, NY 11722

Jacqueline A. St. John

Attorney for Defendant

100 Alcott Place No.20D

Bronx, NY 10475