People v Graziuso

[*1] People v Graziuso 2009 NY Slip Op 51181(U) [23 Misc 3d 1138(A)] Decided on June 11, 2009 Criminal Court Of The City Of New York, Richmond County Sciarrino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2009
Criminal Court of the City of New York, Richmond County

The People of the State of New York,

against

Stephanie Graziuso



2008RI011918



The defendant was represented by Michael P. Mangan, Esq., 160 Pearl Street, New York NY 212-248-2171.

The People were represented by District Attorney Daniel Donovan, Assistant District Attorney Guy Tardanico and Deputy Chief Joanne Grippo, 130 Stuyvesant Place, Staten Island NY 10301 718-556-7068.

Matthew A. Sciarrino, J.

In this case, the court deals with whether or not the defendant's failure to properly take the Intoxilyzer Exam as instructed, after having already consented to the said test, constitutes a refusal, and if so, whether the failure to offer the chemical test within two-hours will result in preclusion.

The defendant is charged with Vehicle and Traffic Law (VTL) § 1192 [3], Operating a Motor Vehicle While Intoxicated, and Resisting Arrest [Penal Law § 205.30]. The defendant moves to suppress any and all evidence of the refusal allegedly obtained on November 26, 2008.

Facts

After a combined Huntley/Dunaway/Ingle and Refusalhearing held on April 2, 2009, this court makes the following finding of fact: At approximately 10:20 pm on November 26, 2008, the defendant drove her black Mercedes-Benz through lane 29 at the Verrazano Narrows Bridge toll plaza. Lane 29 is a cash only lane, and the defendant did not have any money to pay the toll. Bridge and Tunnel Officer (BTO) Thomas Shaw approached the vehicle to provide the defendant with a "Deferred Toll Payment" (a bill for the amount of money owed for the toll). Upon engaging in a conversation with the defendant about the Deferred Toll Payment, BTO Shaw observed the defendant to have watery bloodshot eyes, slurred speech, an odor of alcohol on her breath, and an unsteady balance. Upon making these observations, BTO Shaw asked the defendant if she had been drinking; and she responded that she had consumed three beers. SGT Fallon, BTO Shaw's sergeant, responded to the scene and offered the defendant a Portable Breathalyzer Test (PBTA). The defendant refused to comply with said test, and the defendant was placed under arrest for DWI at approximately 10:27 pm. The defendant is then accused of becoming combative and flailing her arms and twisting her body away from BTO Shaw in an effort to avoid being handcuffed. [*2]

After placing the defendant under arrest, BTO Shaw read the defendant her Miranda Warnings. The defendant was then taken to the 120 Precinct Intoxicated Driver Testing Unit (IDTU) at approximately 11:08 pm. The defendant arrived at the 120 precinct at approximately 11:23 pm. At 12:45 am, more than two hours after the defendant's arrest, the defendant was taken into a room so that a chemical test could be administered. According to the testimony of BTO Shaw, the delay was due to the large amount of DWI arrests that evening.[FN1]

The defendant was asked if she wanted to take the breathalyzer test; and she agreed to submit to said test. However, she was uncooperative and did not properly blow into the receptor device. After registering an invalid sample, P.O Cachola administered a warning that failure to properly blow into the device a second time would result in a refusal, and he further explained the ramifications of a refusal by reading the standard set of warnings to the defendant. The defendant agreed to take the test a second time, but again failed to properly blow into the machine and registered another invalid sample.

Discussion

In conducting a VTL § 1194 analysis, time and accuracy of evidence are controlling issues in determining relevance and overall admissibility (People v Morris, 8 Misc 3d 360 [Crim Ct, Richmond County 2005]). Under VTL § 1194, it is "mandated that the BAC test should be administered within two hours of the time of arrest." (See People v Kenny, 9 Misc 3d 1104[A], 2005 NY Slip Op. 51395[U] [Crim Ct, Richmond County 2005], quoting People v Victory, 166 Misc 2d 549 [Crim Ct, Richmond County 2005]). The court in Victory held that admissibility of the test should be premised on whether a proper foundation has been laid as to the probative value of the result which may in many cases require expert witness testimony demonstrating that the belated test result is indicative of the defendant's Blood Alcohol Content at the time of operation. "BAC tests beyond two hours may no longer be scientifically relevant and probative of the issue of intoxication at the time of the arrest." (See Kenny, quoting Victory, supra at 557).

The Appellate Division of the Fourth Department, in People v Brol (81 AD2d 739, 740, 438 NYS2d 424 [1981]) held that if the chemical test is not administered within the two hour period, the evidence of a refusal is deemed incompetent and is not considered by a jury. (See Morris, supra at 364). This is different from when a driver "explicitly consents to the administration of a chemical test," as the time constraint contained in the "implied consent" section (VTL § 1194[2][a]) are inapplicable" (See Kenny, quoting People v Morales, 161 Misc 2d 128, 131 [Crim Ct, Kings County 1994]). In such cases where a defendant "expressly consents," the defendant has waived his right to refuse a chemical test performed after the tolling of the two hour period.

"The two hour time limit is inapplicable to chemical tests administered pursuant to the defendant's actual consent." (See Kenny, quoting People v Zawacki, 244 AD2d 954 [4th Dept 1997]). Such explicit consent to the administration of a chemical test constitutes a waiver of the right to refuse such test. Such a "waiver" of the two hour rule was done in People v Atkins, (85 NY2d 1007 [1995]). In Atkins, the New York Court of Appeals allowed the results of a chemical test to [*3]be admitted to evidence, even though the test was administered after the two hour period had tolled. (See Kenny, citing Atkins). In Atkins, the defendant had "expressly and voluntarily" consented to the blood test. Likewise, in the instant case, the defendant expressly consented to the administering officer's request to submit to the breathalyzer exam on two separate occasions, thus waiving her right to refuse the test. However, the defendant failed to properly blow into the breathalyzer, yielding an invalid sample on both occasions.

A defendant's conduct in failing to follow directions of the administering officer currupts the defendant's initial consent to submit to a chemical exam, resulting in a "deemed refusal." The Appellate Division of the Second Department in Matter of Johnson v Adduci (198 AD2d 352 [1993]) held that the defendant's failure to properly blow into the breathalyzer machine at the instruction of the officer is deemed a refusal. Additionally, the Appellate Division of the Third Department in People v Brachter (165 AD2d 906, 907 [1990]) held that the defendant's refusal to breathe into the Intoxilyzer after being advised that his first attempt was inadequate to show a reading was sufficient to constitute a refusal. Likewise, in the instant case, the defendant's actions, subsequent to her consent, in the IDTU room constitute a "deemed refusal."

As the subsequent actions of the defendant constitute a "deemed refusal," the issue becomes the effect of a consent on a "refusal" after the two hour period has tolled. The defendant was held in custody for more than two hours after her arrest, before being asked if she would consent to the chemical test at the precinct. The "two hour rule" provides that a chemical test must generally be administered within two hours of either the time of arrest for a violation of VTL § 1192 or the time of a positive breath screening test, whichever is later. Evidence of a refusal may only be submitted into evidence provided that the person who refused to take the test "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" (See Morris, supra at 365,quoting Victory, supra at 805 citing VTL § 1194). Thus, evidence of a refusal outside the scope of two hours may be suppressed if the defendant was never properly warned that more than two hours had passed from the time of the arrest, and not told that the defendant was no longer subject to the "implied consent" provision of VTL § 1194. (See Kenny, supra ).Failure to convey this warning to a defendant after two hours had passed, constitutes a violation of VTL § 1194(f) to provide clear and unambiguous warnings, in that a defendant should be "appraised of the changed circumstances that come with the expiration of the two-hour period of implied consent.'" (See Kenny, supra ).In this case, although the defendant was given the general refusal warning, the defendant was never properly warned that more than two hours had passed from the time of the arrest and that she was no longer subject to the "implied consent" provision of VTL § 1194.

In the instant case, the defendant initially consented to submit to the breathalyzer test, on two separate occasions. Thus, the defendant waived her right to refuse a chemical test performed after the tolling of the two hour period. Therefore, the defendant's subsequent failure to properly perform the exam, although resulting in a "deemed refusal," is not subject to the two hour rule, as her right to refuse the test had already been waived, and the results may be admitted despite the fact that the test was performed more than two hours after the defendant's arrest. (See Kenny, supra ,citing Morales, supra at 131). [*4]

In this case, the officer testified that he was summoned over to the defendant's car by the defendant. Thus, the officer did not have to stop this defendant in order to come into contact with her. The defendant stopped her vehicle on her own, upon request of a Deferred Toll Payment. In Gagliardi v Department of Motor Vehicles (144 AD2d 882, [3d Dept 1988]), the court held that a police officer had reasonable grounds to arrest the motorist for drunk driving when the police officer detected alcohol on the motorist's breath, saw him stagger, and observed the eyes were glazed. (See Morris, supra at 367). Likewise, this court finds there was probable cause to arrest this defendant based on the officer's observations of the defendant, including her unsteady balance, slurred speech, bloodshot eyes, and emanating odor of alcohol. (Morris, citing People v Ingle). Accordingly, the defendant's Dunaway motion is denied.

This court finds that the defendant was not under arrest, and the statement was noncustodial and voluntary at the time her statement, "I had three beers," was made. Moreover, the statement was made during the initial investigator's actions of the officer. Therefore, the defendant's statement that she had three beers is not suppressed.

The defendant's motion to suppress evidence is denied.

This matter is scheduled for jury trial on September 8, 2009.

Dated June 11, 2009

_________________________

Hon. Matthew A. Sciarrino, Jr.

Judge of the Criminal Court Footnotes

Footnote 1: The NYPD should look into opening an additional IDTU site at another precinct in Staten Island to avoid such delays. Staten Island covers over 58 square miles, is twice the size of Manhattan, and is bigger than the Bronx.