Summary of the Court’s Decision:The defendant’s motion to suppress all statements, breath test results, police observations is DENIED; andThe defendant’s motion to suppress defendant’s refusal to submit to a blood test is GRANTED.DECISION AND ORDER The defendant is charged with criminal mischief in the fourth degree (PL 145.00[3]); driving while having a blood alcohol content of.08 or higher (VTL1192[2]); driving while having a blood alcohol content of.18 and higher; driving while intoxicated (VTL 1192[3]); driving while ability impaired (VTL 1192[1]); and reckless driving (VTL 1212).The charges stem from an arrest of the defendant that occurred on December 10, 2017 at between 5:00 AM and 5:05 AM on the Clearview Expressway at the Willets Point Boulevard exit. At his arraignment, the People served statement notice pursuant to CPL 710.30(1)(a) indicating their intention to introduce at trial multiple statements made by the defendant to officers (see 710.30[1][a] notice).On June 27, 2018, this Court held a combined Huntley/Dunaway/Johnson/Mapp/Refusal hearing, where Police Officers Anthony Garufi and Michael Johnson testified. At the conclusion of the hearing, the defendant moved to suppress the statements, the breathalyzer test, and refusal, the results from the chemical breath test, and observations of the defendant. On the same date, the Court denied the defendant’s motion to suppress his statements and the results from the breath test; however, the Court did grant the defendant’s motion to suppress his refusal to submit to the blood test on the grounds that the defendant’s refusal was not persistent (VTL 1194[2]).The Court now affirms its decision in all respects; but, with respect to the refusal evidence, affirms its decision to suppress based on the recent Court of Appeals decision in People v. Odum (2018 NY Slip Op 03173 [2018]).FINDINGS OF FACTOn December 10, 2017 at approximately 5:00 AM, Police Officer Anthony Garufi of the Triborough Bridge and Tunnel Authority responded to a motor vehicle accident on the Clearview Expressway at the Willets Point Boulevard exit. Upon arriving, the officer observed several officers already at the scene. Additionally, he observed defendant’s vehicle and a RMP involved in a two-car accident: the front end of the defendant’s vehicle was “demolished” and airbag was deployed; the back end of the RMP was “demolished.” The officer was then informed by Officer Medley, the driver the of RMP involved in the accident, that the defendant had struck her vehicle, which caused her vehicle to spin around twice. Officer Medley also told Officer Garufi that she observed the defendant behind the driver’s seat of the vehicle.After speaking with Officer Medley, Officer Garufi asked the defendant, whom he observed to have a swaying gait, slurred speech, a strong odor of alcohol on his breath, and bloodshot and watery eyes, where the defendant was coming from and where he was going. The defendant told the officer that he was coming from a friend’s house in Queens, and going to his home in the Bronx. Additionally, the officer asked the defendant whether he had been drinking, to which the defendant responded that he had two “Twisted Teas.” Based on the officer’s professional training and personal experience in identifying intoxicated individuals, the officer concluded that the defendant was intoxicated. Thereafter, at 5:10 AM, the defendant was placed under arrest, and an ambulance was dispatched to transport the defendant to the hospital.While in the ambulance, the officer read the defendant his Miranda rights, which the defendant acknowledged he understood.1 Officer Garufi did not ask the defendant any questions in the ambulance. At 6:30 AM the defendant arrived at North Shore Manhasset hospital. At approximately 6:50 AM, Highway Patrol Officer Michael Johnson arrived at the hospital to administer further examinations on the defendant, including testing to determine his blood alcohol content (BAC).At 7:34 AM, the defendant voluntarily submitted to a breath test, which indicated that the defendant had a BAC of.186. After the defendant submitted to a breath test, Officer Johnson asked the defendant to submit to a blood test, which the defendant refused. Officer Johnson then read the defendant the following “refusal warnings”:If you refuse to submit to this test or any portion thereof, it will result in the immediate suspension and subsequent revocation of your driver’s license or operating privileges…for a minimum period of one year, whether or not you’re found guilty of the charges [for] which you’ve been arrested. In addition, your refusal to submit to this test or any portion thereof can be introduced as evidence against you at any trial, proceeding, or hearing resulting from this arrest.The defendant was, again, asked to submit to a blood test, which he, again, refused.Subsequently, Officer Garufi read the defendant his Miranda rights, which the defendant, again, acknowledged that he understood and agreed to answer the officer’s questions. The officer then asked the defendant a series of questions to which the defendant made a series of statements.2CONCLUSIONS OF LAWAt the conclusion of the hearing, the defendant moved to suppress police observations, his statements, breath test results, and refusal to submit to a blood test. The Court, finding Officer Garufi’s pre-Miranda questioning of the defendant to be investigatory, denied suppression of defendant’s statements that were made at the scene. The Court also found Officer Garufi had probable cause to arrest the defendant for driving while intoxicated, thus, denied suppression of evidence as fruit of an unlawful arrest. Additionally, the Court denied suppression of the defendant’s results from the portable breath test, finding that the defendant voluntarily submitted to the test. The Court also denied suppression of defendant’s post-Miranda statements at the hospital, finding that the statements were voluntarily made.Finally, the Court granted suppression of defendant’s refusal to submit to the blood test as consciousness of guilt evidence. The Court now affirms its decision in all respects; but, with respect to the refusal evidence, affirms its decision to suppress based on the recent Court of Appeals decision in People v. Odum (2018 NY Slip Op 03173 [2018]).It is well-settled law that a driver is deemed to have provided consent to a chemical test to determine his or her blood alcohol content when such test is performed within two hours of the driver’s arrest (see VTL 1194[2][a]). Notwithstanding, VTL 1194(2)(b) grants a motorist a qualified right to decline to voluntarily take a chemical test with the understanding that such a decision will result in the immediate suspension and revocation of a driver’s license to drive for one year (VTL 1194[2][d]) and will permit the People to elicit evidence of such refusal at trial (VTL 1194[2][f]). (See People v. Smith, 18 NY3d 544, 548 [2012]; People v. Sirico, 135 AD3d 19, 22 [2d Dept 2015].) This refusal is “admissible in any trial, proceeding or hearing, but only upon a showing that the person was given sufficient warnings, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal (id.; VTL 1194[2][f]; Matter of Gargane v. NYS Dept of Motor Vehs, 118 AD2d 859, 860 [2d Dept 1986]).The more contentious issue involves the admissibility of a chemical test, or refusal thereof, performed two hours after a motorist is arrested. And, while the Court of Appeals in People v. Atkins (85 NY2d 1007 [1995]) clarified that a chemical test administered two hours after a driver’s arrest is admissible where a defendant expressly and voluntarily consents to such chemical test, the Court did not define “voluntary consent.” As a result, courts, in applying Atkins, have narrowly applied the two-hour limitation to only defendants who are incapable of consent (see eg People v. Olmo, 56 Misc 3d 969 [Crim Ct, Bronx County 2017] [two hour limitation only applies to unconscious or incapacitated drivers]; People v. Rosa, 112 AD3d 551 [1st Dept 2013][defendant's consent to chemical test two hours after his after arrest was voluntary notwithstanding improper refusal warning]; People v. Robinson, 85 AD3d 1269 [2d Dept 2011] [refusal to submit outside of two hours properly admitted into evidence]). Additionally, as relevant here, the Atkins Court also left unanswered the issue of admissibility of refusals that fall outside of the two-hour period.In Odum, the Court of Appeals finally provided clarification on the applicability of the “two-hour rule” in cases where a motorist is not incapacitated and is given refusal warnings after two hours. Notably, the Court found that this requirement — that a chemical test be performed within two hours under VTL 1194(2)(a) — is not inconsequential (2018 NY Slip Op 03173 at 2). In so finding, the Court held that, as a matter of law, the refusal warnings are inaccurate if provided after the two-hour period has expired (id. at 4). As a corollary, the inaccurate warnings render a motorist’s consent to a chemical test involuntary and, consequently, the result is inadmissible (id.). Further, the Court stated that the “two-hour rule” is applicable to refusals to take a chemical test because a motorist cannot, as a matter of law, refuse to take the test within the meaning of VTL 1194(2)(f) (see People v. Roy R,–Misc 3d–, 2018 Slip Op 28149 [Crim Ct, New York County 2018]). Therefore, as relevant here, “any evidence of a refusal [after two hours] must be suppressed because it does not fall within the parameters of the statute” (Odum at 4).In this case, it is undisputed that the defendant was asked to submit to a blood test and refused more than two hours after his arrest. Accordingly, as a matter of law, the defendant’s refusal to submit to the blood test is suppressed.This constitutes the Decision and Order of the Court.Dated: July 25, 2018
