People v Lewis

[*1] People v Lewis 2009 NY Slip Op 52009(U) [25 Misc 3d 1209(A)] Decided on September 16, 2009 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2009
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Trevor Lewis,, Defendant.



39476C-08



Patrick Butler, Assistant District Attorney

Bronx County District Attorney's Office, for plaintiff.

Dennis O'Sullivan, Esq., for defendant.

Richard Lee Price, J.

The defendant is charged with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol (Vehicle and Traffic Law §§ 1192 [1], [2], and [3]), one count of Operating a Motor Vehicle While Under the Influence of Alcohol/Drugs and Unlawful Possession of Marijuana (Penal Law § 221.05). Defendant moves to suppress the marijuana recovered from him, statements made by him to the arresting officers both at the scene of his arrest and at the precinct, and the results of the intoxilyzer test on the grounds that: (1) his arrest was not supported by the requisite probable cause; (2) the marijuana recovered from him was obtained pursuant to an unlawful search; (3) his pre-Miranda statements were made pursuant to a custodial interrogation; (4) he was denied the assistance of counsel before submitting to the Intoxilyzer test; (5) he did not voluntarily waive Miranda rights for statements made to officers at the precinct; and (6) the results of the intoxilyzer test were not reliable because it was administered more than two hours after his arrest.

The District Attorney contends that the defendant's arrest was based upon sufficient probable cause, that the marijuana recovered from him was lawfully obtained as a search incident to arrest, that any statements made at the scene of his arrest were either not custodial or spontaneously made, that any post-Miranda statements made at the precinct were preceded by a knowing and voluntary waiver, and that Intoxilyzer test was properly administered yielding a reliable result.

On June 16, 2009, this court conducted a combined Dunaway/Mapp/Huntley hearing. The People called two witnesses: Police Officers Joey Rodriguez and Juan Rodriguez. The [*2]defendant did not call any witnesses. This court finds the testimony of both credible to the extent indicated herein. Upon hearing oral argument from both the defendant and the People, and viewing the videotape recording of the Intoxilyzer test proceeding, this court reserved decision. This court then ordered that further oral argument be heard, and memoranda of law be submitted, relative to whether the results of the Intoxilyzer test expressly and voluntarily taken by the defendant more than two hours after his arrest is an issue of admissibility or of weight. Based upon all the arguments from both the defendant and the People, their respective papers submitted in support thereof, and the videotape recording, defendant's motion is denied in its entirety.

Findings of Fact

On June 29, 2008 at approximately 3:30 a.m., Officer Juan Rodriguez, dressed in uniform, observed the defendant driving a 1997 Toyota Corolla near the intersection of East 169th Street and Boston Road (H: 16-19). He further observed the defendant strike a parked emergency services vehicle (H: 21). Officer Juan Rodriguez and his partner then exited their vehicle and approached the driver's side of the defendant's vehicle. The officers asked the defendant and his passenger if they were feeling okay, to which the defendant responded by repeatedly stating, "I messed up", in a slurred manner (H: 24). It was then that the officer noticed "the defendant's eyes were bloodshot, and there was a strong scent of an alcoholic beverage emanating from [the] vehicle" (H: 24). He also noted that the engine was running and the keys were in the ignition (H: 49).

Having made these observations, the officers asked the defendant to step out of the car. When the defendant complied, "he came out stumbling and his body shifted forward as if he was going to fall . . . [and] was unsteady on his feet" while continuing to repeatedly state, "I messed up" (H: 25-26). Officer Juan Rodriguez then confirmed that the scent of alcohol he had previously noticed emanating from the defendant's vehicle was in fact "emanating from his breath, from his mouth" (H: 26). Based on his training and experience, officer Juan Rodriguez concluded that "the defendant was, in fact, intoxicated" (H: 27).[FN1]

At approximately 3:35 a.m., Officer Joey Rodriguez, dressed in plain clothes, arrived at the scene and relieved Officer Juan Rodriguez. Officer Joey Rodriguez testified that as he approached the suspect, he observed the engine in defendant's vehicle to be running and the defendant was being held upright by Officer Juan Rodriguez and his partner. Officer Joey Rodriguez observed that the majority of the front right side of defendant's vehicle was dented, the hood was pushed in and there smoke inside (H: 67-68). He also noticed that the left fender and bumper of the EMS vehicle were dented. Officer Joey Rodriguez testified that the defendant was "swaying side to side, his eyes were bloodshot, glassy, and he also had a strong odor of alcohol . . . there was just an odor of alcohol coming from his breath and body" (H: 69). Upon conducting a search of the defendant, Officer Joey Rodriguez discovered "two clear plastic baggies containing a green leafy substance" in the defendant's front right pants pocket later determined to be [*3]marijuana (H: 71).[FN2]

At 3:37 a.m., the defendant was formally placed under arrest and transported to the 45th Precinct for the purpose of administering an Intoxilyzer breath test.[FN3] After arriving, the Officer Joey Rodriguez waited approximately one hour for a highway officer qualified to administer the Intoxilyzer but no such officer arrived (H: 77). He was then instructed to transport the defendant to the 28th Precinct in Manhattan, which he did, where a qualified highway officer was available to administer the test (H: 77).[FN4]

At approximately 6:15 a.m., Highway Officer Vickerey (H: 81-82)[FN5] offered the defendant an opportunity to submit to an Intoxilyzer breath test. While the defendant requested permission to consult with an attorney before agreeing to the Intoxilyzer, he never provided the name of one with whom he wished to speak (H: 82; 124). Highway Officer Vickerey responded by advising the defendant that "once you sign for your license in the state . . . you actually sign your right and agree to testing" (H: 113). The defendant then expressly and voluntarily agreed to submit to the test (H: 83). At approximately 6:17 a.m., Highway Officer Vickerey administered the Intoxilyzer test to the defendant as the procedure was recorded on videotape (H: 105). The results indicated that the defendant had a blood alcohol content of .158 (H: 83).

Following the Intoxilyzer test, Officer Joey Rodriguez read the defendant his Miranda rights and questioned by regarding his activities that night (H: 87-89). The defendant's responses revealed that he was indeed driving the vehicle in which he was found, that he had consumed two beers, and had taken "two puffs of a spliff," referring to marijuana cigarette (H: 97-100).

Conclusions of Law

Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v Berrios, 28 NY2d 361 [1971]; People v Baldwin, 25 NY2d 66 [1969]). Here, the People have presented sufficient evidence that the stop of the defendant was proper based upon the observations of both officers. Police Officer Juan Rodriguez observed the defendant driving [*4]a vehicle and crashing into a parked emergency services van. That, by itself, provided a reasonable suspicion that the defendant had committed a violation of the Vehicle and Traffic Law (People v Ingle, 36 NY2d 413 [1975]). Upon approaching the vehicle, however, he further observed defendant seated behind the steering wheel and smelled a strong odor of alcohol emanating from defendant's breath. He also noticed the defendant to have bloodshot eyes and slurred speech. At that point, Officer Juan Rodriguez had reasonable suspicion to believe that the defendant was intoxicated and was justified in directing him out of the vehicle (see People v DeBour, 40 NY2d 210, 223 [1976]).

After subsequently arriving on the scene, Officer Joey Rodriguez observed the defendant to be unsteady on his feet, swaying from side to side. That, in addition to the observations made by Officer Juan Rodriguez, justified his conclusion that the defendant was intoxicated and thus had probable cause to arrest the defendant for operating a motor vehicle while intoxicated (see People v Bigelow, 66 NY2d 417, 423 [1985]; People v Goodell, 164 AD2d 321, 323-324 [4th Dept 1990]; aff'd, 79 NY2d 869 [1992]; People v Farrell, 89 AD2d 987, 988 [2d Dept 1982]). Thus, the two bags of marijuana recovered from the defendant were obtained in a search incident to a lawful arrest (Chimel v California, 395 US 752 [1969]; People v Brnja, 50 NY2d 366 [1980]; People v DeSantis, 46 NY2d 82 [1978]; People v Weintraub, 35 NY2d 351 [1974]). Highway Officer Vickerey's request that the defendant submit to an Intoxilyzer blood alcohol content test was also proper (see People v Johnson, 134 Misc 2d 474 [Crim Ct, Queens County 1987, Johnson J]). Accordingly, the challenge to the legality of defendant's stop and arrest fails.

With respect to the statements made by the defendant at the time of his arrest, this court finds they were spontaneous and not the product of custodial interrogation (see People v Zapata, 41 AD3d 109 [1st Dept 2007]; People v Garcia, 19 AD3d 200 [1st Dept 2005]). As such, there is no basis for their suppression. The statements made by the defendant to the police officer who conducted the breathalyzer and coordination tests at the precinct are also admissible. Performance tests need not be preceded by Miranda warnings, and, a videotape of such tests, including any colloquy between the test giver and the defendant not constituting custodial interrogation, is admissible (see People v Jacquin, 71 NY2d 825 [1988]). Accordingly, defendant's motion to suppress his statements to law enforcement authorities and physical evidence is denied.

Finally, there is no basis for suppressing the results of the Intoxilyzer test given to the defendant at the 28th Precinct. The defense argues that since the test was administered more than two hours after arrest, the results must be suppressed as a violation of the two-hour rule contained in Vehicle and Traffic Law § 1194 (2).

Clearly, where a test is administered within two hours of an arrest, implied consent is deemed to have been given. However, when more than two hours have passed between an arrest and the administering of the Intoxilyzer test, the Court of Appeals has held that "the two-hour limitation contained in Vehicle and Traffic Law § 1194 (2) (a) has no application here where . . . defendant expressly and voluntarily consented to administration of the . . . test (People v Atkins, 85 NY2d 1007, 1008-9 [1995]). Citing its prior decision in People v Ward, 307 NY 73 (1974), the Court of Appeals stated that the "deemed consent" statute "had no application where the defendant expressly and voluntarily consented" to the test (see Atkins, 85 NY2d at 1008). It further noted that the statute was "concerned, not with those who consented to take the test, but [*5]those who were required to submit," and added that the court found it "difficult to perceive any necessity for the protections embodied in [the deemed consent statute] where the driver freely volunteers to take the test" (Id., at 1008-9).

It appears then, that when an Intoxilyzer test is administered after more than two hours have passed, the admissibility of the test results rests on whether express consent was given. Where express consent is not established, then the reliability of those results must be shown. Indeed, this court suppressed Intoxilyzer test results that were obtained after more than two hours had passed because of the People's failure to demonstrate their reliability through expert testimony (People v Holbrook, 20 Misc 3d 920 [Sup Ct, Bronx County 2008]). Absent in Holbrook, however, was any testimony establishing that the defendant expressly consented to the test. Here, as indicated above, there is.

Accordingly, given that the two-hour rule was never intended to impose per se inadmissibility on breath tests performed after the two hours prescribed in VTL 1194 (2), this court determines that when the defendant has given express consent, the time elapsed should speak to the weight given to the evidence as opposed to the admissibility of the results. In other words, where the defendant has expressly consented to the test, there is no need to vouch for its reliability as the results of an Intoxilyzer test are, at this point, generally accepted as reliable. Defendant's motion to suppress the results of the Intoxilyzer test is therefore denied.

This shall constitute the decision and order of this court.

Dated:September 16, 2009

E N T E R

________________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:

Specifically, the officer stated that "there was a strong odor of alcohol emanating from [the defendant's] breath, his eyes appeared to be bloodshot, watery, and combined with his slurred speech and being unsteady on his feet, based on all of those contributing factors I made that determination that the defendant was intoxicated" (H: 31).

Footnote 2:

The substance was tested at command to determine if it was in fact marijuana. This process consisted of putting the substance in a tube and mixing it with a chemical reagent. Depending on what color the mixture turns, police can then determine if they have a positive result for marijuana (H: 72).

Footnote 3:

The officer estimates the time of arrival at the precinct to be around 4:10 a.m. (H: 74).

Footnote 4:

The 28th Precinct is located "approximately 126th street in Harlem," but the officer could not recall the exact address. He estimated the time of arrival at the 28th Precinct to be approximately 5:40 a.m. (H: 77).

Footnote 5:

While not specifically stated by Officer Rodriguez, it is believed that his use of "Highway" refers to an IDTU officer affiliated with the New York City Police Department Highway Patrol.