Judge David J. Kirschner

Gomez was charged with three counts of DUI and moved for dismissal arguing his equal protection rights were violated. He was stopped and the arresting officers detected a strong odor of alcohol from Gomez, who admitted he consumed nine beers at a bar. A chemical breath test revealed a BAC of .14, and Gomez moved to suppress the chemical test, and statements made to police arguing they were fruits of an improper and unlawful arrest. A hearing was held and suppression was denied. Gomez argued English-speakers under suspicion of DWI were offered physical coordination tests by the NYPD, but based on his Hispanic ethnicity, NYPD engaged in a discriminatory practice by depriving him the same opportunity. Prosecutors argued the decision not to offer Gomez a physical coordination test was not based on his ethnicity, but on a perceived inability to correctly understand the instructions. The court noted the suppression hearing record showed police had a sound belief Gomez was not fluent in English, and an officer's decision not to offer the test due to a perception Gomez did not sufficiently understand English did not violate his equal protection rights. As such, the policy withstood a rational basis review and the equal protection claim was rejected, denying dismissal.