Summary of the Court’s Decision (1)The defendant’s motion to suppress the noticed, prearrest statements attributed to him that he “was coming from 5th Avenue and that he “had two beers” is DENIED.(2) The defendant’s motion to suppress the results of the Intoxilyzer breath test based on invoking his limited right to counsel is DENIED.(3) The defendant’s motion to suppress the results of the Intoxilyzer breath test based on improper/incomplete refusal warnings is GRANTED.A Dunaway/Huntley/Refusal/Gursey hearing was held before this Court on 10/19/18, 1/22/19 and 1/29/19. Police Officer Wong testified for the People, and the IDTU and Dashcam videos were admitted into evidence. The defense presented no witness testimony or other evidence.Findings of FactsThis Court credits the testimony of Officer Wong and makes the following findings of fact. On July 22, 2017, at approximately 1:30 am, Officer Wong, a Police Officer with the New York City Police Department for 13 years, and in Highway District 2 for 6 years, observed a vehicle traveling on the Belt Parkway between the border of Brooklyn and Queens County, New York, at a high rate of speed. Based on his training and experience, the Officer estimated the speed as approximately 80 mph, thereafter, confirmed with radar. Officer Wong activated his lights and sirens to get the vehicle to pull over and gave verbal directions to get off on the next exit. The vehicle stopped on the exit ramp by Crossbay Blvd in Queens County, instead of on the street, as instructed. Officer Wong approached the driver’s side of vehicle and observed defendant in the driver’s seat, with his hand outside the window holding a lit cigarette. Officer Wong instructed defendant to put the cigarette down, asked defendant “where he was coming from,” and defendant responded, “coming from 5th Avenue.” The Officer then asked, “you had anything to drink tonight” and defendant responded, “I had two beers.” Officer Wong then told the defendant, “you were flying down the highway” and instructed him to get out of the vehicle and walk to the back.At the rear of defendant’s vehicle, Officer Wong smelled the odor of alcohol on defendant’s mouth from approximately 2-3 feet away. Defendant was asked to and submitted to a portable breath test and blew .066 while standing outside of his vehicle. Defendant was then handcuffed and placed in the back of the police car. He was asked and submitted to another PBT test, results of which are unknown.Defendant was then taken to 112th Precinct and offered the Intoxilyzer exam at approximately 2:15 am. At that time, Officer Wong advised defendant that he “has been arrested for operating a motor vehicle while impaired, I’d like you to take a breath test, will you, Yes or No?” Defendant said no. Police Officer Wong then advised defendant if he “refuse[d] to submit to the test or any portion of the test, it will result in the suspension of your license and the subsequent revocation of your license or operating privilege for a minimum period of one year whether or not you are found guilty of the charge for which you were arrested. In addition, your refusal to submit to a test, or any portion thereof, can be introduced against you at any trial procedure or hearing. Do you wish to take the test, Yes or No?”Thereafter, the Officer stated, “I ask you again — will you take the breath test,” and defendant stated in part — “It doesn’t make any sense. I understand what you’re saying.” Officer asked again, “would you like to take a blood test — sir it’s a yes or no question,” defendant responded, “I want to talk to a lawyer or something before I decide.” Officer then stated, “You are not giving me a clear answer sir, we are going to have to count this as a refusal,” defendant stated, “so I don’t have a choice, I wish to talk to a lawyer.” Officer asked defendant “do you have a number available [for a lawyer]“, defendant stated I don’t have a number, but I could get one — Officer stated it has to be reasonable time — we can’t sit here for hours waiting. Defendant then stated, “I just told you I don’t know my rights or nothing.” Officer then asked, “Would you like me to read that again?” Defendant responded, “You’re telling me that I will lose my rights automatically — that’s not right.” Officer then explained, “It’s part of having your driver’s license — you have to submit to a test.” Defendant then answered, “I want to speak to a lawyer.” Officer again asked, “Do you have a phone number? Do you want to call your wife? Maybe she has a phone number? If you have a phone number, we will stop the test, give you a phone and let you call your attorney, but if you don’t have a phone number, or access to a number or somebody — if you don’t know anybody?” Defendant stated, “I don’t have a lawyer, I have to get one.”The officer then stated, “I’m going to give you one more chance, it’s a yes or no question” and then re-read the warnings and consequences. Thereafter, he stated, “I ask you again, will you take the test?” Defendant again responded, “I want a lawyer.” The Officer once again asked, “Do you have or know a lawyer, does your wife know one?” Defendant stated, “I don’t have one, I can get one.” The Officer deemed this as a refusal. Defendant was then offered coordination tests but refused. Officer started reading the first prong of Miranda and stopped.Conclusions of LawSuppression of the Defendant’s Prearrest Statement DeniedOfficer Wong, observed defendant driving in excess of 80 mph on the Belt Parkway, activated his lights and sirens and conducted a car stop. After approaching the defendant, he asked where defendant had been coming from and if he had had anything to drink. At this time, the officer was able to observe defendant to be exhibiting common law signs of intoxication, including the odor of alcohol on his breath and watery, bloodshot eyes.The officer’s questioning of the defendant “during a temporary roadside detention pursuant to a routine traffic stop [was] not custodial within the meaning of Miranda v. Arizona, 384 U.S. 436 (1966).” People v. Williams, 81 AD3d 993 (2d Dept. 2011) (quotation omitted). Accordingly, the defendant’s motion to suppress his prearrest admissions that he “was coming from 5th Avenue” and that he “had two beers,” is DENIED.The officer’s observations of the defendant’s driving, common law signs of intoxication, statements and the results of the portable breath test, gave the officer sufficient probable cause for defendant’s arrest.Suppression of the Defendant’s Refusal to submit to Intoxilyzer Breath Test Based on Limited Right to Counsel ViolationsWhereas one has an absolute constitutional right to consult with an attorney prior to making testimonial statements, the right to consult an attorney before taking a breath test is limited. Specifically, the police “may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.” People v. Lucifero, 146 AD3d 811, 813 (2d Dept. 2017) (quoting People v. Washington, 23 NY3d 228, 232 (2014)) (emphasis added).The defendant asserts that he invoked his right to counsel by asking for an attorney. While defendant clearly asked for an attorney several times and indicated that he would like to get the advice of an attorney before submitting to the intoxilyzer exam, defendant did not have the name or number of an attorney, as evidenced by his statements, “I don’t have a lawyer, I have to get one.” The officer asked the defendant several times, if he could get the number for an attorney or if he wanted to call anyone, including his wife to get information for an attorney. Defendant declined to call anyone. The defendant had no immediate access to an attorney and refused to take advantage of the options he was given to try and get one. Waiting would not have cured the situation. Since, the breath test’s primary purpose is to determine the defendant’s blood alcohol content as close in time as possible to the point of his arrest, Police Officer Wong acted appropriately in offering the defendant the test. People v. O’Rama, 162 AD2d 727 (2d Dept. 1990), rev’d on other grounds, 78 NY2d 270 (1991).Suppression of the Defendant’s Refusal to submit to Intoxilyzer Breath Test Based on Improper/Incomplete Refusal WarningsPolice Officer Wong explained to the defendant that he was being arrested for operating a motor vehicle while impaired and properly advised of the consequences of the refusal. In fact, the officer read to the defendant, twice “[r]efusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege whether or not you are found guilty of the charge for which you are arrested. In addition, your refusal to submit to a chemical test, or any portion thereof, can be introduced into evidence against you at any trial proceeding or hearing.” Officer Wong attempted several times to get an answer, but defendant kept requesting a lawyer, saying that he did not know what to do, wanted the advice of a lawyer before deciding and complained numerous times that the procedure did not make sense.While it is clear that Officer Wong exercised patience and advised the defendant of the consequences of the refusal, Officer Wong did not tell the defendant that his actions or lack of response to his question, could be interpreted or deemed a refusal.” A refusal is admissible “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.” Matter of Gargane v. DMV, 118 AD2d 859, 860 (2d Dept. 1986); V.T.L §1194(2)(f).In People v. Smith, 18 NY2d 544, 551 (2012), the Court of Appeals ruled “before the police can deem the defendant’s conduct or non-response to their request to take the chemical test a refusal, they must notify the defendant as such.” Furthermore, defendant’s asking questions or asking for an explanation of alternatives, cannot be viewed as a persistent refusal. See People v. K.S., 2018 NY Slip Op 28358 (J. Drsydale) (New York Co., October 19, 2018). Here, defendant kept asking questions, and never gave an unqualified “no” answer. Accordingly, defendant’s request to suppress his refusal based on improper and incomplete refusal warnings, is GRANTED.This constitutes the decision and order of this Court.Dated: January 29, 2019Kew Gardens, New York
