Decision After Hearing The defendant is charged with violating VTL §1192.2 (driving while intoxicated; per se), as well as a violation of VTL §1110(a) (disobeyed traffic-control device). In order to determine the validity of defendant’s arrest and the admissibility of certain evidence arising therefrom, a combined Mapp/ Huntley/Dunaway/Ingle/ Refusal hearing was ordered and conducted before the undersigned on July 16, 18, and 30, 2018. The People called Sergeant Johnson and Police Officer Segretto as their two witnesses. The defendant did not testify. The only remaining determination not yet rendered by the Court is with regard to the Refusal. A memorandum of law was submitted by the People on September 6, 2018 and by the Defense on September 12, 2018. In accordance with CPL §710.60(6), the court makes the following findings of fact and conclusions of law with regard to the Refusal:Findings of FactSergeant Ian Johnson, Shield #79, a 10 year veteran of the Nassau County Police Department, credibly testified that on May 29, 2017 he was assigned to DWI Patrol on an overnight tour and was alone in an unmarked patrol car. Sergeant Johnson stated that at approximately 3:37 AM that day he observed the Defendant, who was driving a 2002 Cadillac Escalade, make a right turn from Glen Cove Road onto Cedar Swamp Road in Glen Head, NY without signaling. He further observed the Defendant’s vehicle fail to maintain its lane. Thereafter a traffic stop was initiated on Cedar Swamp Road.Sergeant Johnson approached the vehicle from the driver’s side and interacted with the driver, whom he identified as the defendant. He asked the defendant for his license and registration and during this interaction, he observed the defendant’s glassy, bloodshot eyes, slurred speech and detected a strong odor of alcohol on his breath. Sergeant Johnson asked the defendant in English further investigatory questions and received a response from the defendant in English that he was coming from his brother’s house party, he had three beers and he did not have a license. Sergeant Johnson performed standard field sobriety tests (SFST’s) and states that the defendant was not following his directions on the HGN (Horizontal Gaze Nystagmus) test. The 9 step walk and turn and one leg stand tests were also administered without an issue as to the defendant following the instructions given in English. Sergeant Johnson testified that, although he did not request a Spanish speaking officer for back up, one did arrive on the scene named “Police Officer Duque”. After being given instructions in Spanish by Officer Duque, the defendant was still unable to perform the HGN test. Thereafter the PBT (portable breath test) was administered (as the defendant complied with when asked) and there was a reading of .12.Sergeant Johnson testified that he reached the conclusion that the defendant was intoxicated based on his personal and professional experiences with intoxicated individuals, as well as his observation of defendant’s glassy, bloodshot eyes, the odor of alcohol on his breath, his admission to having consumed “three beers,” unsteady on his feet, the positive clues on the 9-step walk and turn test and the one leg stand, and the PBT reading of. 12 percent BAC. Sergeant Johnson placed the defendant under arrest and read him his Miranda rights at approximately 4:22 AM and also let the defendant read the Miranda warnings in Spanish and when asked, the defendant stated he understood his rights as read and written.Following his arrest, the defendant was transported to the Central Testing Section (CTS) of Police Headquarters in Mineola.Police Officer Segretto, shield #3298, testified that in his career as a police officer since 2005, he has served as a breath analysis operator, a drug recognition evaluator and a technical supervisor, and he has been involved in over 1000 driving while intoxicated or impaired cases. Officer Segretto credibly testified that upon meeting the defendant (whom he identified in Court) at CTS, he engaged in a conversation with him asking a series of questions in English that the defendant responded to in English.Thereafter, the defendant was asked to submit to a chemical analysis of his breath, which he agreed to both verbally and in writing. Officer Segretto credibly testified that due to the possible language barrier with the defendant, the refusal warnings were given in English and then a Spanish video translation was played for the Defendant as well. Officer Segretto further testified that after the defendant agreed to submit to the test, Officer Segretto gave instructions as well as demonstrated for the Defendant numerous times how to breathe in the machine. Officer Segretto testified that the defendant repeatedly did not follow his instructions and/ or demonstration.Upon cross-examination, Officer Segretto stated that the refusal warnings portion of the video were not played for the Defendant because he had responded in the affirmative about taking the breath test. He also relayed that the instructions on how to blow were not given in Spanish or on the video. Officer Segretto stated that after the defendant’s two failed attempts at blowing correctly and/or long enough into the machine, he then gave the Refusal admonitions in English despite having wrote that Defendant’s language was limited.On re-direct, it was established that Officer Segretto was able to administer the Horizontal Gaze Nystagmus test and did so after giving instructions in English only.Conclusions of LawIn the instant case, although, the Defendant did respond both verbally and in writing in English that he consented to a chemical analysis of his breath, his conduct repeatedly did not follow through with such.It is clear that there is no requirement that Defendant’s persistence in refusing be repetitive nor is there a minimum number of times that he must refuse (see People v. Bratcher, 165 A.D.2d 906, 560 N.Y.S.2d 516 [3rd Dept. 1990]; Matter of Nicol v. Grant, 117 A.D.2d 940. 499 N.Y.S.2d 247 [3rd Dept. 1986]). In Nicol, the defendant consented to the chemical test and then refused. Despite writing yes, the court found that his actions indicated a refusal (Nicol, at 117 A.D.2d 940, 499 N.Y.S.2d 247). In Bratcher, the defendant refused to breathe into the Intoxilyzer after being advised that his first attempt was insufficient to obtain a reading. The court found that this action indicated a refusal (Bratcher, 165 A.D.2d 906, 560 N.Y.S.2d 516). Here, the Defendant initially agreed to take the test however he then repeatedly failed to follow instructions as to how to properly execute the test. Accordingly, Defendant’s refusal was found to be persistent.While, it can be argued that the Defendant’s refusal, by conduct, to submit to the chemical test was the result of his inability to understand English and was not a consciousness of guilt, the Defendant is not precluded from arguing such to a jury. Although, Spanish could possibly be the Defendant’s primary language, the People submit that he nevertheless clearly understood English well enough to write in English and respond to questions in English. The Defendant did appear to clearly understand the instructions given to him in English, as evidenced by his compliance with the instructions in the 9 step walk and turn as well as the one leg stand test, and eventually the HGN test. At no time did the Defendant ask for the refusal admonitions to be read in Spanish; he did not ask Officer Segretto to speak slower or repeat the warnings; nor did he say he did not understand. In light of the foregoing, the Court is not convinced that there was any language barrier issue.Moreover, even if the Defendant had a hard time understanding the instructions verbally, Officer Segretto credibly testified that he physically demonstrated how to blow and this, absent a loss of sight by the defendant not otherwise mentioned, should have been clear regardless of any claimed language barrier. The defendant was also able to follow the instructions for the PBT about how to breathe. Under all of these circumstances, whether the defendant’s alleged refusal was attributable to his consciousness of guilt or a language barrier is a factual issue for the jury to resolve.Finally, it is noted 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, 2009 N.Y. slip opinion 29107).Whether a defendant failed to understand the refusal warning or believed them to be ambiguous is not a basis for suppression (People v. Burnet supra; 24 Misc. 3rd 292, 299; Matter of Gagliardi v. Department of Motor Vehicle, 144 A.D.2d 882. [3rd Dept 1988]; People v. Camagos, 160 Misc.2d 880, [Sup Ct, Qns County 1993]. 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 A.D.2d 499, 502 [3rd Dept 1987].This 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 by conduct in his refusal.The Defendant’s motion with regard to the Refusal is hereby denied.This constitutes the decision and order of the court.So Ordered:Dated: September 20, 2018
