MEMORANDUM DECISION AFTER HEARING The defendant is charged with driving while intoxicated (V&TL §1192(3)), aggravated unlicensed operation of a motor vehicle in the third degree (V&TL §511(1)(a)) and two traffic infractions. Mapp/Dunaway/probable cause, Huntley and refusal hearings have been held herein to determine the admissibility at trial of evidence obtained against the defendant. At the hearing, the Court received the testimony of Suffolk County Police Officer John Bokinz. Officer Bokinz testified that on October 21, 2018 he was traveling on Route 25 in the Coram area of Suffolk County, New York. At approximately 2:55 a.m. Officer Bokinz observed a red Ford Mustang traveling westbound on Route 25 with approximately 1/3 of the vehicle on the shoulder of the roadway. Officer Bokinz testified that he observed the vehicle go onto the shoulder three times and he activated his lights to stop the vehicle. The officer testified that the vehicle slowed down, but did not stop until he used his PA system to instruct the driver to pull over. Officer Bokinz approached the vehicle and spoke with the driver, who was unable to produce a driver’s license or other paperwork. The driver was identified as defendant Stephen Wojciechowski. While speaking to the defendant, Officer Bodkin noticed an odor of an alcoholic beverage on his breath, that his speech was mumbled and that his eyes were bloodshot and glassy. The defendant stated that he’d had two beers with dinner and that he was driving all over the roadway because his girlfriend had her hand in his lap. The defendant was asked to exit the vehicle and perform Standardized Field Sobriety tests. The defendant exhibited all 6 clues on the Horizontal Gaze Nystagmus test. Officer Bokinz testified that he did not have the defendant perform the walk-and-turn or one-leg-stand tests, as the defendant was unsteady on his feet. A pre-screen breath test indicated the presence of alcohol. Officer Bokinz testified that he formed the opinion that the defendant was intoxicated, placed him under arrest at 3:09 a.m. and transported him to the Sixth Precinct. At the precinct the defendant was read the chemical test warnings from the Alcohol/Drug Influence Report [hereinafter "AIR"] and asked if he would submit to a chemical test. Officer Bokinz testified that at 3:24 a.m. the defendant wrote “refuse” on the AIR and signed his name on the document. At 3:37 a.m. Officer Bokinz asked a second time if the defendant would take the test and the defendant stated, “Negative.” At 3:50 a.m. the defendant was asked a third time if he would take the chemical test and he responded, “Negative. No thank you.” The defendant was read his Miranda warnings and stated that he understood them, but in response to the question of whether he wished to talk with Officer Bokinz, the defendant stated, “Not at this point.” The Court holds that the stop of the defendant’s vehicle was lawful, as Officer Bokinz had probable cause to believe that the defendant had committed a violation of the Vehicle & Traffic Law when he observed the defendant operating a vehicle on a public highway and failing to maintain his lane. (See People v. Robinson, 97 NY2d 341 [2001]; People v. Ingle, 36 NY2d 413 [1975]). With regard to the defendant’s arrest, a police officer may arrest a person without a warrant for “[a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” (CPL 140.10(1)(b)). The Criminal Procedure Law provides that “‘[r]easonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” (CPL 70.10(2)). It is the opinion of this Court that Officer Bokinz possessed probable cause to arrest the defendant and that the evidence derived from such arrest is therefore admissible. The Court finds that the facts known to Officer Bokinz at the time of arrest — namely, the defendant’s operation of his vehicle, admission as to the consumption of alcohol, poor performance on the SFST’s and the indicia of intoxication observed by the officer — were collectively of such weight to render it reasonably likely that the defendant had committed the offense of driving while intoxicated. With regard to the issue of the admissibility of the defendant’s statements at the scene, this Court finds that they were neither involuntarily made in violation of the defendant’s Miranda rights, nor the product either of questioning, attempts to elicit an incriminating response or the “functional equivalent of interrogation.” (See People v. Chase, 85 NY2d 493 [1995]). Rather, they were merely the result of initial investigatory inquiries by the officer. Therefore, the defendant’s motion to suppress same is denied. In order for evidence of a defendant’s refusal to submit to a chemical test to be admissible at trial, the People must show that the request was made within 2 hours of the defendant’s arrest or within 2 hours of a breath test (VTL §1194 (2)(a); People v. Brol, 81 AD2d 739 [4th Dept 1981]), provided that the defendant was given sufficient warnings in clear and unequivocal language of the effect of such refusal and that the defendant persisted in the refusal. (VTL 1194 (2)(f); see also People v. Thomas, 46 NY2d 100, 108 [1978], app dsmd 444 US 891 [1979]). The defendant argues that refusal evidence should be suppressed because the refusal warnings were not read to him after he initially refused, citing Thomas. The Court finds such argument to be inapposite. It is the opinion of this Court that neither V&TL §1194(2)(f) nor the holding of Thomas mandates that an initial refusal to take a chemical test must precede the warnings. Rather, it must be demonstrated that the defendant made “a conscious and definitive choice to refuse the test after having had the consequences of refusal explained to him.” (See People v. Japanwalla, 26 Misc3d 1218(A) [Nassau Dist Ct 2010], citing People v. Andrews, 2002 N.Y. Slip Op. 50394(U), 2002 WL 31163137 [Nassau Dist Ct 2002]). Based on the credible testimony of Officer Bokinz, the chemical test warnings were given to the defendant in clear and unequivocal language, the defendant never indicated that he did not understand same and he did in fact persist in his refusal to submit to the test. As such, the defendant’s motion to suppress refusal evidence is denied. Accordingly, after hearing and evaluating the testimony presented herein, this Court finds that there existed probable cause for the defendant’s stop and arrest and the defendant’s motion to suppress any evidence obtained as a result of same is denied. The defendant’s motions to suppress his statements and evidence of an alleged refusal to submit to a chemical test are also denied. Decision to be published on line: __ Yes __ No
