A Dunaway/Huntley/Mapp hearing was held before this Court on February 28TH, 2019 and April 11TH, 2019. Police Officer David Covington and Sergeant Edward Aiken testified for the People. The People introduced two IDTU videos into evidence. Defendant presented no witness testimony or other evidence.Findings of FactsThis Court credits the testimonies of Sergeant Aiken and Officer Covington and makes the following findings of fact.On February 17TH, 2018, between 2:10A.M. and 2:25A.M., at the southwest intersection of East River and the Whitestone Bridge, Sergeant Aiken observed the defendant operating a 2014 Toyota vehicle that was swerving between two lanes and traveling approximately 68 miles per hour in a 40 mile per hour zone, confirmed by a Lidar detector. Sergeant Aiken followed the vehicle onto the Whitestone Bridge and for safety reasons, pulled the vehicle over at the first exit after the bridge. Upon approaching the vehicle, he observed defendant, in the driver’s seat, to have “bloodshot, watery eyes” and smelled an odor of an alcoholic beverage coming out of the car. Sergeant Aiken instructed the defendant to exit the vehicle and observed a strong odor of alcohol emanating from the defendant and the defendant to be unsteady on his feet using the police vehicle for support. The defendant consented to a take the portable breath test at the scene and blew a .12. Sergeant Aiken called for Officer Covington to respond to the scene.Upon arriving at the scene, Officer Covington observed the defendant to have “bloodshot watery eyes, slurred speech, a strong odor of alcohol on his breath and the defendant was unsteady on his feet,” requiring Officer Covington’s assistance to walk. Defendant was placed under arrest and transported to the 112TH Precinct. At approximately 4:45 am, he agreed to take the breath test, when offered, and blew into the machine multiple times, each time providing an insufficient sample.After several failed attempts to provide a sufficient sample, Officer Daniel Patti, the IDTU technician, informed the defendant “if you don’t blow into the machine, I will read refusal warnings,” for “failing to give proper breath sample, going to read refusal warnings” and after defendant’s last attempt to blow, at approximately 4:51 am, “if you fail to give a proper sample, [it] will go down as refusal by conduct.” Shortly thereafter, defendant’s failure to submit a sufficient sample was deemed a refusal and the defendant was given refusal warnings. He was advised, “Sir if you refuse to submit to the test or any portion thereof, it will result in the immediate suspension and subject you to revocation of your driver’s license or operating privilege for a period of one year whether or not you were found guilty of the charges for which you have been arrested. In addition, your refusal to submit to the test or any portion thereof can be introduced as evidence at a trial, proceeding or hearing resulting from the arrest, I ask you again will you take the breath test?” At approximately 4:55 A.M., after getting refusal warnings, the defendant submitted to the test and blew a .07. People’s Exhibit 1, the IDTU video, shows defendant’s multiple blows, the discussion between the officer and the defendant, the refusal warnings, the time periods and the defendant’s subsequent blow.While in a cell at the precinct, Officer Covington overhead the defendant tell another prisoner, “Yeah, I had a couple of beers”. The statement was not in response to any questions by law enforcement.Conclusions of LawProbable Cause and StatementsIn a suppression hearing, while a defendant has the ultimate burden of proving illegality, the People have the initial burden of “going forward,” i.e., to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. See, e.g., People v. Furrs, 149 AD3d 1098, 1099 (2d Dept. 2017) (citing People v. Berrios, 28 NY2d 361, 367 (1971)); People v. Eastman, 32 AD3d 965, 966 (2d Dept. 2006).Here, the defendant was observed driving approximately twenty miles over the posted speed limit and failing to maintain his lane on a public highway, sufficiently establishing a lawful basis for the stop. See V.T.L. §§1180(d) & V.T.L. §1163(d). Upon following the defendant, and subsequently stopping the vehicle, Sergeant Aiken observed the defendant to have bloodshot, watery eyes and detected a strong odor of an alcoholic beverage emanating from the car. Sergeant Aiken requested defendant exit the vehicle to determine if the odor was coming from defendant, the car or the other passengers. When defendant complied, Sergeant Aiken observed the defendant to be unsteady on his feet and to have a strong odor of alcohol on him. Defendant submitted to a portable breath test, blowing a .12. Pursuant to his observations of the defendant’s driving, defendant’s common law signs of intoxication and the results of the portable breath test, sufficient probable cause existed for defendant’s arrest. Accordingly, the defendant’s motion to suppress the officer’s observations based on the lack of probable cause is DENIED.In a cell, at the precinct, Officer Covington overheard defendant telling another prisoner “Yeah, I had a couple of beers”. While defendant was in custody at the time of the statement, he was not interacting with any officers and was not responding to any police questioning. The statement was spontaneous and not made to law enforcement. Accordingly, defendant’s motion to suppress the noticed statement is DENIED.The statement made at the scene — “I had one beer” — is precluded. C.P.L. §710.30(1)(a) requires the People to serve notice of any statement intended to be offered at trial made by a defendant to a public servant within fifteen days of arraignment. See People v. Chase, 85 NY2d 493, 500 (1995); People v. Barnette, 150 AD3d 1134, 1136 (2d Dept. 2017)(court “agreed with the defendant that the Supreme Court should have precluded the People from introducing into evidence statements he made to a detective on the ground that the People failed to provide notice of those statements in accordance with C.P.L. §710.30″). At the hearing, both parties agreed that statement notice was not provided for this statement and that the statement should be precluded. Accordingly, defendant’s unnoticed statement, “I had one beer,” is PRECLUDED.Suppression of the Breath Test ResultsThe defendant asks this Court to suppress the IDTU video and the results of the breath test since the results were obtained more than two hours after the defendant was arrested, relying on V.T.L. §1194 and the Court of Appeals holding in People v. Odum, 31 NY3d 344 (2018)(“any evidence of a refusal after” the two-hour period has expired “must be suppressed because it does not fall within the parameters of” V.T.L. §1194(2)).V.T.L. §1194(2)(a)(1) deems any person who operates a motor vehicle in the state of New York to have given consent to a chemical test, administered by an officer, if the officer has reasonable grounds to believe that the person operated a motor vehicle in violation of VTL 1192, within two hours of arrest. V.T.L. §1194(2)(b)(1) promulgates the warnings that an officer must administer, in clear and unequivocal language, should a motorist decline to submit to a chemical test, including the ramifications to motorist’s license and the use of any evidence of the refusal in any subsequent criminal prosecution.In Odum, the Court of Appeals examined “deemed consent” under V.T.L. §1194(2)(a)(1), in the context of a defendant who initially refused to submit to a chemical test, was given refusal warnings pursuant to V.T.L. §1194(2)(b)(1) two hours after arrest, and then submitted to the chemical test. Id. at 346. The Court held that a motorist has a qualified right to voluntarily refuse to take the chemical test, as long as the motorist is given clear, unequivocal and legally accurate refusal warnings within two hours of arrest. Id. at 348. The Court found that the officer’s “warning that evidence of his refusal to take the breathalyzer test would be admissible at trial” “was inaccurate as a matter of law.” Id. at 351. In doing so, the Court concluded: (1) that the two hour time limitation for deemed consent also created a similar two hour window for warning a defendant that evidence of the refusal can be used at a criminal proceeding; (2) if the warning is given outside the two hour window, the warning is legally inaccurate; (3) partial legal inaccurate warnings rendered defendant’s subsequent consent to submit to a chemical test involuntary; and (4) evidence of any involuntary chemical test must be suppressed, absent a warrant or court order. Id. at 350-354.Here, the defendant agreed to take the breath test and provided an insufficient sample at approximately 4:45 AM, more than two hours after his arrest. The officer deemed the defendant’s failure to provide a sufficient sample to be a refusal and read him refusal warnings, which included the inaccurate warning that evidence of his refusal could be used at trial. Thereafter, at approximately 4:56 AM, defendant agreed to blow and provided a sufficient sample, .07. Since, as in Odum, legally inaccurate refusal warnings were given two hours after arrest, defendant’s consent thereafter, was involuntary. Accordingly, the defendant’s motion to suppress the breath test results and the IDTU videos is GRANTED.This constitutes the decision and order of this Court.Dated: May 16th, 2019Kew Gardens, New York
