People v Rivas
Annotate this CaseDecided on March 21, 2011
District Court of Suffolk County, First District
People of the State of New York
against
Jose R. Rivas, Defendant.
2009SU008759
Patricia M. Filiberto, J.
Following a combined Probable Cause, Huntley and Refusal hearing, the Court makes the following findings of facts and conclusions of law.
On February 23, 2009 at 1:47 a.m. Police Officer Decio and Police Officer Squiccirini were patrolling Commercial Boulevard in Brentwood, Suffolk County, New York. Police Office Decio was behind a car that passed a stop sign without slowing down, applying its brake lights or stopping. Police Officer Decio turned on his lights and pulled the car over to the side of the road. Police Officer Decio walked to the driver's side of the car. There was one person in the car. He asked the man to turn off the engine in English and the person complied. In English, the police officer asked the driver if he knew that he passed a stop sign and the driver said "he did not see it". When asked to produce his driver's license in English, the man did so. The police officer identified the driver as Jose Rivas. The officer smelled alcohol when he was speaking to the driver and could not determine if the smell was coming from the car or the man's breath. When asked if he had been drinking, the man said in English he had " three beers tonight". In English, the officer asked the man to get out of the car, and the man complied. In an area lit by street lamps, the police officer observed that the man had bloodshot, glassy eyes, his speech was slurred and his breath emitted a heavy smell of alcohol when he spoke. There were no empty alcohol bottles in the car. The police officer asked the man to perform standard field sobriety tests. The police officer explained in English how to perform the HGN test. He explained twice. The man did not comply. The police officer then asked the man to perform the one-legged stand and demonstrated to the man what he wanted him to do. The man did not state that he didn't understand, he did not ask the police officer to speak Spanish; he did not ask him to repeat the direction. In performing the one legged stand, the man fell forward. The man did not indicate that he was ill or injured. The officer then asked the man to perform the walk and turn test and demonstrated the procedure. The officer spoke in English. The man walked a straight line but could not walk heel to toe and waived his arms to maintain balance. The defendant took only 3 of the 18 heel toe steps required.
Police Officer Decio stated that this indicated that the man was intoxicated. The officer then asked the man to perform a prescreen breath test. The result was .16% BAC. The officer formed the opinion that the man was intoxicated and placed him under arrest.
At the precinct, the officer read the defendant the request to take a chemical test and the refusal warnings in English. The defendant did not ask the officer to read more slowly, to repeat the warnings or to speak in Spanish. The defendant then wrote the word, "refuse", in the appropriate place in the form and signed his name to the document at 2:28 a.m. Although at the Administrative Hearing, Police Officer Decio testified that he did not recall if a Spanish speaking officer was present at the precinct that night, at the hearing held before this Court, Police Decio stated that the second time the request to take the chemical test and the warnings of refusal were read to the defendant, he asked a Spanish speaking officer, Police Officer Hernandes, to read them to the defendant, as a courtesy. The defendant refused again by responding to Police Officer Hernandes in Spanish, "I'm fine, I do not want to take a test". The third time the request and warning were read to the defendant by Police Officer Decio in English and for a third time the defendant refused by shaking his head "no". Ploce Officer Decio said the defendant was calm and in his opinion understood the consequences of refusal.
After the third refusal at 2:41 a.m., Police Officer read the Miranda Rights in English to the defendant. Police Officer Decio asked defendant if he understood each of these rights as explained to him and defendant responded, "No". Police Officer Decio asked defendant if having these rights in mind, do you wish to talk to us now? Defendant responded in English, "No, I do not understand." Police Officer Decio did not seek the assistance of the Spanish speaking officer to read the Miranda Rights again to the defendant in Spanish. The officer said he interpreted defendant's response, "no, I do not understand" to mean "I refuse to answer any further questions". Police Officer Decio did not ask the defendant any further questions from the form. He drew a line through the questions and wrote the word, "refuse".
THE COURT MAKES THE FOLLOWING CONCLUSION OF LAW:
Police Officer Decio had reasonable suspicion to believe that defendant violated the law when he observed the defendant fail to stop at a stop sign. When he pulled the car over to issue a traffic ticket, he asked the defendant to turn the engine off in English and the defendant complied. He asked in English if he knew he passed a stop sign and defendant responded in English, "I did not see it." In English the defendant was asked to produce his license, which he did, and was asked in English if he had been drinking and defendant responded in English that he had "three beers tonight." When asked to get out of the car in English, the defendant complied. In an area lit by street lamps, Police Officer Decio observed that the defendant had bloodshot, glassy eyes and when he spoke his speech was slurred and there was a heavy odor of alcohol emanating from his breath. The officer asked the defendant to perform standard field sobriety tests: [*2]
First, the HGN, which the officer explained twice. The defendant did not comply. The second test the officer asked him to perform after demonstrating was the one-legged stand. The man fell forward. The third test he asked him to perform and demonstrated was the heel to toe test. The defendant waived his arms, could not walk heel to toe and took only 3 of the required 18 steps. The officer then asked the defendant to take a roadside prescreen breath test.
He demonstrated how to blow into the machine. The defendant complied. The result was .16% BAC. Based upon the totality of these observations, Police Officer Decio formed the opinion that the defendant was intoxicated and therefore had probable cause to arrest the defendant for DWI and failing to stop at a stop sign.
The defendant's statements made at the scene were voluntarily made in response to Police Officer Decio's investigation. The defendant was not in custody, nor was he threatened or coerced; therefore, these statements are admissible at trial.
At the precinct, when defendant was read the request to take a chemical test and the warning of refusal in English, he did not ask to have the words read in Spanish, did not ask the officer to speak slower and did not ask the officer to repeat the request and refusal warning. When asked if he would consent or refuse to take the Intoxilyzer, defendant wrote the word "refuse" in the appropriate place and signed his name. The second time the defendant was read the request to take a chemical test and the refusal warning, the request and warnings were read to him in Spanish by Officer Hernandes. The defendant responded, "I'm fine. I do not want to take a test." The third time defendant was read the request to take a chemical test and the refusal warnings, they were given in English. He again did not ask to have the words read in Spanish, did not ask the officer to speak slower and did not ask the officer to repeat the request and refusal warning. He refused by shaking his head "no".
Whether a defendant failed to understand the refusal warning or believed them to be ambiguous is not a basis for suppression (People v. Burnet, 2009 NY slip opinion 29107; 24 Misc. 3rd 292, 299; Matter of Gagliardi v. Department of Motor Vehicle, 144 AD2d 882, [3rd Dept 1988]; People v. Camagos, 160 Misc 2d 880, [Sup Ct, Qns County 1993] Rather a determination of whether the refusal warnings were in "clear and unequivocal language" must be based on an objective standard independent of whether the defendant actually understood them (People v. Burnet at 842, citing, People v. Reynolds, 133 AD2d 499, 502 [3rd Dept 1987]; Matter of Carey v. Melton, 64 AD2d 983 [1978].
Here, the defendant was read the request to submit to a chemical test and the refusal warnings from the form in Spanish by a Spanish speaking police officer. When in asked in Spanish if he will take the breath test, he responded, "I'm fine. I do not want to take a test". This court finds that the defendant was given his warnings in "clear and unequivocal language". (See People v. Burnet, 2009 NY Slip Opinion 29107; 24 Misc. 3rd 292; 2009 NY Misc. LEXIS 504; 241 NYLJ 54; People v. Coludro, 166 Misc 2d 662 [Crim Cts, Kgs County 1995]; People v. [*3]Reynolds, 133 AD2d 499, [3rd dept 987]; People v. Niedzwiecki, 127 Misc 2d 919).
Further, with respect to the persistence of the refusal, V & T sec. 1194(2) (f) does not require that such persistence be repetitive nor is there a minimum number of times that the defendant must refuse (See People v. Burnet, citing People v. Bratcher, 165 AD2d 906, [3rd Dept 1990]. V & T L sec. 1194(2) (f) requires that the warnings be sufficient and in "clear and unequivocal language" (see, People v. Niedzwiecki, supra, at 920). The Appellate Division, when faced with having to determine whether a refusal is persistent, held that repeated refusals to submit to a test were not required by the V & T L (see, Matter of Geary v. Commissioner of Motor Vehicles of State of NY, 92 AD2d 38, [4th Dept 1983], aff'd 59 NY2d 950). All that the Legislature requires is that these warning be given in "clear and unequivocal language", not that they be stated repeatedly. In the present case, the request and warning were read in Spanish once, and it appears that they were sufficiently clear for the defendant to exhibit his understanding by responding, "I'm fine. I do not want to take a test." Further, the defendant in this case wasked two additional times in English to take the test, was warned of the consequences of refusal, and indicated his refusal once by writing the word "refuse" and another time by shaking his head "no".
Therefore, the Court finds that the People have proven by a preponderance of the evidence that the defendant was given the request to submit to a chemical test and the warning of refusal in clear and unequivocal language, and the defendant persisted in his refusal.
Certainly, in the case at hand, it can be argued that defendant's refusal to submit to the Intoxilyzer was the result of his inability to understand English and not a consciousness of guilt. Conversely, while the people acknowledge that Spanish may be the defendant's primary language, he nevertheless appeared to understand some English as evidenced by complying with many of the directions that Police Officer Decio gave him in English.. Also, defendant repeatedly responded verbally in English. Under these circumstances, whether defendant's alleged refusal to take the chemical test is attributable to consciousness of guilt or a language barrier is a factual issue for the jury to resolve. Finally, it bears stating that the chemical test proceeding is neither judicial nor criminal; it is administrative. Accordingly, it has been held that there is no fundamental right to an interpreter during a chemical test process (see, People v. Burnet).
Last, the Court turns its attention to possible Miranda Rights violations. Police Officer Decio read the Miranda Rights in English to the defendant. He asked the defendant if he understood each of these rights as explained to him and defendant responded, "No". Police Officer Decio asked defendant if having theses rights in mind, do you wish to talk to us now? Defendant responded in English, "No, I do not understand." Police Officer Decio did not seek the assistance of Spanish speaking officer to read the Miranda Rights again to the defendant in Spanish. Police Officer Decio interpreted defendant's response, "no, I do not understand" to mean "I refuse to answer any further questions". Police Officer Decio did not ask the defendant any further questions. He drew a line through the questions and wrote the word "refuse". [*4]Defendant, therefore, did not make any statements to the police that this Court could determine were made in violation of his Miranda Rights.
New court date:
Opinion filed herewith.
Dated:J. D. C.
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