People v Godulias

[*1] People v Godulias 2012 NY Slip Op 51559(U) Decided on August 16, 2012 District Court Of Nassau County, First District Goodsell, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2012
District Court of Nassau County, First District

The People of the State of New York, Plaintiff(s)

against

Nicole Godulias, Defendant(s).



2010NA030121



Kathleen M. Rice, District Attorney, Nassau County, Attorney for People,262 Old Country Road, Mineola, New York 11501, 516-571-3800; Clayman & Rosenberg, LLP, Attorneys for Defendant, 305 Madison Avenue, New York 10165, 212-922-1080.

David Goodsell, J.

Hearing Decision

The defendant is charged with violating VTL § 1192(3) [Driving While Intoxicated Common Law] and VTL § 1192(2) [Driving While Intoxicated - Per Se] in connection with an automobile accident occurring on November 19, 2010.

This court directed a Mapp/Huntley/Dunaway hearing in an order dated September 20, 2011. This court further directed a hearing to determine whether the blood sample used to determine the blood alcohol content of the defendant at about the time of the accident needed to comply with the provisions of VTL § 1194 to be admitted at trial or in the alternative should be suppressed in a decision dated December 21, 2011.

The hearings took place on March 12, 2012, April 5, 2012 and April 20, 2012. Dr. Jason Arellano, Police Officer Janice Whitney and Dr. William Closson testified at the combined hearings.

Findings of Fact

Police Officer Janice Whitney responded to a radio assignment to assist and investigate an automobile accident on Jericho Turnpike near Barwick Avenue in Mineola, New York. Upon arriving Officer Whitney determined a van crossed over the double yellow line and struck a Volkswagon driven by the defendant head-on. The damage from the collision trapped the defendant and the passenger in the vehicle. The Emergency Services Unit extricated first the unresponsive passenger and then the defendant from the vehicle. Separate ambulances then transported the pair to separate hospitals. [*2]

Officer Whitney observed the defendant at the scene of the accident to have glassy, bloodshot eyes and later smelled the odor of alcohol on the defendant's breath. Police Officer Dodd who accompanied the defendant to Nassau University Medical Center in the ambulance also smelled the odor of alcohol on the defendant's breath.

Medical personnel took the defendant to the emergency room. There, Dr. Jason Arellano withdrew blood for treatment purposes. The doctor used an isopropyl alcohol swab on the site of the blood draw. While in the emergency room, Officer Whitney called for a blood kit to draw a sample for investigatory purposes. Police Officer Karl-Otto, a member of the Highway Patrol Unit, brought the kit to the hospital. Officer Whitney observed Officer Karl-Otto perform the Horizontal Gaze Nystagmus test upon the defendant. The defendant displayed six out of six clues. At some point during the interaction with Officer Karl-Otto, the defendant indicated she drank a couple of beers at Sugar's.

Officer Whitney advised the defendant of her "Miranda" rights at 5:45 a.m. The defendant signed a form waiving her Miranda rights and agreeing to answer questions at 6:15 a.m. The defendant admitted to Officer Whitney she drank 2 Raspberry Stoli and Redbulls at Sugar's upon questioning after the waiver.

The blood drawn as part of the blood kit brought by Officer Karl-Otto failed to yield a sufficient sample for testing. Therefore, the District Attorney obtained from Nassau University Medical Center a sample of the defendant's blood drawn for medical purposes by means of a subpoena signed by County Court Judge Alan Honoroff pursuant to CPL § 690.14(4).

Dr. Jason Arellano, the emergency room physician who treated the defendant at Nassau University Medical Center testified that blood samples taken from the defendant which the prosecution ultimately tested for alcohol upon seizing the sample by subpoena followed the use of antiseptic skin swab which contained 70% isopropyl alcohol. Dr. Arrellano indicated that police equipment is used to draw blood when the police request a sample for testing.

Finally, Dr. William Closson, a forensic toxicologist testified as an expert regarding the effect of an antiseptic skin swab containing isopropyl alcohol upon a blood sample tested for the presence of ethanol (drinkable alcohol). Dr. Closson testified in detail that the isopropyl alcohol skin swab would have no effect on the blood alcohol content reading because headspace gas chromatography used to test the sample would distinguish between the presence of ethanol and any isopropyl alcohol.

The molecular structure of the differ depending on the type of of alcohol. Isopropyl alcohol possesses three carbon atoms, while ethanol possesses only one. Dr. Closson explained the process of gas chromatography including the separation of the substances during the analysis. During the analysis, the test sample is examined for the presence of ethanol and the testing results would not be affected by the absence or presence of any residual isopropyl alcohol as each substance appears differently and distinctly during the testing process. [*3]

Arguments

The defendant contends the statements made by the defendant must be suppressed because the statements as indicated by the CPL § 710.30 notice occurred before the waiver of her Miranda rights. The defendant argues the statements to be the product of custodial interrogation.

The defendant further contends the arrest occurred without probable cause requiring suppression of evidence because the arrest paperwork lists the time of arrest to be 3:00 a.m., prior to admissions of alcohol consumption and observations of signs of intoxication.

Finally, the defendant argues the blood results must be suppressed because the blood sample used failed to follow the requirements of VTL § 1194(3).

The District Attorney counters by arguing that VTL § 1194(3) does not apply to the sample used to determine the blood alcohol content of the defendant. The prosecutor also denies that a basis exists to suppress the statements made or the evidence obtained.

Suppression of Statements

The testimony of Officer Whitney established that she advised the defendant of her "Miranda" rights after placing the defendant under arrest. Officer Whitney recited the rights from memory although at the time of the hearing the officer could not recite the warnings given on November 19, 2010. However, on cross examination, defense counsel introduced into evidence a document which contained both a recitation of Miranda rights, a acknowledgment of understanding by the defendant of her "Miranda" rights and an agreement to answer questions signed by the defendant. Officer Whitney, thereafter, indicated the language of the printed rights substantially conformed to the oral advisement given to the defendant.

Miranda rights need not follow a "ritualistic formula" provided that the substance of the information constitutionally required is conveyed to a defendant. People v. Gonzalez, 55 NY2d 720, 447 NYS2d 145 (1981), People v. Parker, 258 AD2d 479, 682 NYS2d 922 (2nd Dept 1999). The testimony of the officer, together with the written acknowledgment by the defendant sufficiently establishes the sufficiency of the rights given and a waiver of those rights. People v. John, 288 AD2d 848, 732 NYS2d 505 (4th Dept 2001).

The assertion that the CPL § 710.30 notice indicates a time which conflicts with sequential recitation of events in this case neither proves the statement to have been made before the waiver nor requires suppression. The purpose of a CPL § 710.30 notice is to supply information to allow the defendant to frame issues allowing a challenge to the admissibility of the statement. People v. Lopez, 84 NY2d 425, 618 NYS2d 879 (1994). Provided the sum and substance of the statement is provided, suppression is not warranted where the testimony at the hearing differs somewhat from the information provided in the notice. People v. Coleman, 256 AD2d 473, 682 NYS2d 402 (2nd Dept 1998). [*4]

Here, the testimony clearly established the sequence of arrest, Miranda advisement and questioning in a credible fashion. As such, the inconsistent timing set forth in the CPL § 710.30 is of no evidentiary import for purposes of the hearing. The statements to Officer Whitney though custodial followed a proper advisement of Miranda rights and a waiver of those rights by the defendant. Further, there is no evidence that the statement made to Officer Karl-Otto occurred involuntarily as the term is defined by CPL §60.45. The motion to suppress the statements noticed on the CPL § 710.30 notice as involuntary under CPL § 60.45 is denied.

Probable Cause

The defendant further argues the time of arrest to be 3:00 a.m. on November 19, 2010 as indicated in the accusatory instrument and related police paperwork. However, the testimony at the pre-trial hearing established the time of arrest to be in the vicinity of 5:45 a.m. The time of arrest is significant because at 3:00 a.m., the information which suggested the defendant may be intoxicated had not been noted. Officer Whitney and Officer Dodd who responded to a scene of a head-on collision focused initially aiding in accident scene while personnel removed the defendant from her vehicle and transported her to an ambulance. Subsequent to the events of placing the defendant in the ambulance, the officers noted the odor of alcohol emanating from the defendant. Officer Whitney then observed the defendant to have glassy, bloodshot eyes. Officer Whitney observed highway patrol Officer Hill-Otto perform the Horizontal Gaze Nystagmus. The testing revealed six out of six possible clues for intoxication.

Proof of probable cause requires evidence to support a reasonable belief that a crime was committed. People v. Shulman, 6NY3d 1, 809 NYS2d 485 (2005); People v. Bigelow, 66 NY2d 417, 497 NYS2d 630 (1985). The standard requires a determination of the sufficiency for of the arresting officer's belief that the defendant committed the offense charged. People v. Coffey, 12 NY2d 443, 240 NYS2d 721 (1963). Probable cause does not require proof beyond a reasonable doubt. People v. Bigelow, supra., People v. Francis, 44 AD3d 788,789, 843 NYS2d 419 (2nd Dept. 2007). The legal standard must be based upon facts and circumstances which when viewed as a whole would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been committed . People v. Wright, 8 AD3d 304, 778 NYS2d 59 (2nd Dept. 2004).

The operation of the vehicle, the physical signs of intoxication and the results of Field Sobriety Test provided sufficient basis to arrest the defendant. People v. Fenger, 68 AD3d 1441, 892 NYS2d 591 (3rd Dept 2009). The motion to suppress evidence including the blood test based upon the lack of probable cause is denied.

Blood Test

The defendant argues that the blood test to establish the blood alcohol content in this case failed to comply with 10 NYCRR 59.2(d) which sets forth that "if a blood specimen is to be [*5]collected for analysis, any aqueous solution of a nonvolatile antiseptic shall be used on the skin." The Code of Rules and Regulations applies according to the defendant by virtue of VTL § 1194(c).

However, the statutory scheme set forth in VTL § 1194 is not intended to apply in all prosecutions of the Vehicle and Traffic Law. Instead, VTL § 1194 applies to chemical tests administered at the direction of a police officer. People v. Ameigh, 95 AD2d 367, 467 NYS2d 718 (3rd Dept 1983), lv denied, 61 NY2d 672, 472 NYS2d 1031 (1983). The court in Ameigh went on to conclude that VTL § 1194 "does not prohibit the use at trial of a medically administered blood test not procured by the police." Ibid p. 369.

Here, where a police officer requested that the hospital-drawn sample be held for potential use in the criminal proceeding in light of the insufficient sample drawn pursuant to VTL § 1194 does not alter the applicability of VTL § 1194 to hospital-drawn sample.

The defendant relies upon the language in People v. Moselle, 57 NY2d 97, 454 NYS2d 292 (1982) and People v. Casadei, 66 NY2d 846, 498 NYS2d 357 to argue that VTL § 1194 applies to unconsented blood tests involving the Vehicle and Traffic Law. The court in Casadei specifically permitted the mechanism to seize a blood sample pursuant to CPL § 690.10 as occurred in the instant case. The point that the court in Casadei recognized a distinction between a Penal Law violation and a VTL violation is of no legal significance as it relates to a blood sample drawn for medical purposes and seized through a subpoena.

The Vehicle and Traffic Law provides for a means and a method to obtain a blood sample when a driver refuses to permit a sample or cannot consent to a sample from being taken because all drivers under the Vehicle and Traffic Law have consented to such sample. However, where a blood sample is given for medical purposes, but is seized pursuant to CPL § 690.10, the sample may be tested and used in a prosecution. People v. Eylsee, supra at p. 105.

At the hearing, the prosecution demonstrated through Dr. William Closson that the sample tested would not be affected by the use of a skin antiseptic containing isopropyl alcohol rather than an aqueous solution of a nonvolatile antiseptic. The testing employed upon the defendant's blood sample distinguished between isopropyl and ethyl alcohol, thus producing a reliable result. Given the procedures for drawing and testing the defendant's blood are sufficiently reliable, the results should be admitted provided a proper chain of custody and evidentiary foundation are established at trial. Any issue with the taking of the sample or the testing of the sample affects the only weights of the evidence. The motion to suppress the blood results is denied.

This constitutes the decision and order of this Court.

[*6]/s/ Hon. David Goodsell

DISTRICT COURT JUDGE

Dated:August 16, 2012