People v. Yameogo

DECISION & ORDER The Defendant was arrested on May 2, 2020 and arraigned in Criminal Court on May 3, 2020 on charges of Vehicle and Traffic Law (“V.T.L.”) §§1192(3) Driving While Intoxicated, 511(1)(a) Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, 1192(2) Driving While Intoxicated, 1192(2-a)(a) Aggravated Driving While Intoxicated, 1212 Reckless Driving, 509(1) Violations of the Vehicle and Traffic Law, and 1192(1) Driving While Ability Impaired by the Consumption of Alcohol or Drugs. On April 1, 2022, the Court commenced Mapp; Huntley; Ingle; Dunaway; Atkins/Odum; and Hinshaw hearings. The Defendant moves to suppress all statements made by him to police officers, police observations of him, and chemical breath tests results. The People called one witness, Officer Aine Reynolds, shield number 23718, of the 41st Precinct NYPD, who testified on April 1 and April 26 of 2022. The People presented the following as evidence: 1) DVD with bodycam footage from Officer Reynolds; 2) results of Defendant’s Breath Analysis test dated May 2, 2020; and 3) DVD with Defendant’s IDTU video. The Defendant did not call any witnesses. Based on review of the testimony, exhibits, repeated viewings of the video footage, parties closing arguments presented at the hearing, and the court file, and for the reasons discussed herein, the Court decides as follows: FINDINGS OF FACT The People called Police Officer Aine Reynolds (“Reynolds”) as a witness. She has been a member of the New York City Police Department for over five years. Officer Reynolds is a Neighborhood Coordination Officer (NCO) and has served in this position within the 41st Precinct for four and a half (4.5) years. She testified that during the course of her five-year career, this was her third DWI arrest. According to Reynolds testimony, on May 2, 2020, at approximately 3:20 am, Officer Reynolds and her partner, Officer Cuccia (“Cuccia”), were on their assigned NCO duties, both were in uniform and in a marked vehicle, in the confines of the 45th precinct in Bronx County She testified that there was not a lot of traffic or pedestrians on the street at the time because it was the beginning of the COVID-19 pandemic. She testified that her and her partner were driving eastbound on Westchester Avenue, when the Defendant, driving a GMC Savana Van south from Rogers Place, turned left onto Westchester Avenue, and almost collided with her vehicle¹. Thereafter, Cuccia put on his lights and siren to pull the Defendant over. The Defendant complied by pulling to the side of the road, one block away, on the corner of Intervale and Westchester Avenues. Reynolds testifies that officers approached the vehicle and asked the Defendant for his license and registration in English. Reynolds describes, “He didn’t seem to understand our questions.” He opened the door and that is when the Officers realized that there was a strong odor of alcohol. They continued to question the Defendant and asked the Defendant to exit the vehicle. Reynolds states, “He didn’t seem to be following our questions or directions very well.” The Officers observed the Defendant to have bloodshot eyes and arrested him at the intersection of Intervale and Westchester Avenues. The body camera footage from People’s exhibit 1 begins from the point of arrest, however, there is no footage from the initial stop. The body camera footage shows the Defendant being arrested and walking from his vehicle to the Officer’s vehicle without any assistance and his balance was steady. Once the Defendant was placed in the back of the marked police vehicle, the Officers discussed the transport of the Defendant’s vehicle back to the 41st precinct. Reynolds drove the Defendant’s vehicle, while Cuccia followed behind, transporting the Defendant separately. There was no footage provided of the Defendant in the back of the police vehicle from the time of the arrest to the drop off at the 41st precinct. The footage of Reynolds shows her driving the Defendant’s vehicle to the 41st precinct. Reynolds then rejoins Cuccia and the Defendant in the marked Police vehicle and footage was provided of the ride from the 41st to 45th precinct. While on their way to the 45th precinct, Reynolds asked the Defendant pedigree questions such as his name, birthdate, and address. The Defendant responded with the spelling of his name, provided his birthdate and full address. During the entire ride, the Defendant asked the Officers multiple times to call his wife. In fact, many of the responses the Defendant gave to the Officer’s questions, were not responsive to the questions but rather him repeating the request to call his wife. Once the Officers arrived at the 45th precinct, the Defendant walked out of the car to the front of the precinct, again without any assistance and steady on his feet. In front of the precinct, the parties stop to place a mask on the Defendant before entering the building. The Defendant refuses the mask that Reynolds provided from her pocket, he was adamant about using his own mask that he directed the officer to retrieve from his pocket. The Defendant walks into the precinct and does not appear to be unsteady on his feet. The bodycam video ends once the Defendant is inside of the precinct. The People provided the IDTU video of the Defendant in the 45th precinct. The video depicts the following²: The IDTU technician, Officer Petrone (“Petrone”), begins by asking the Defendant’s permission to take the breath test, and Defendant agrees. Petrone proceeds to explain the instructions for the breath test in English, specifically instructing the Defendant to blow into the device for 6 seconds. The Defendant attempts his first blow and is unsuccessful. After a full minute of visible confusion and several attempts made by the Defendant to blow into the machine, Petrone offers to get a translator for the Defendant³. Within two minutes, the Defendant attempted to blow into the device over 6 times and was unsuccessful. Petrone then began to read refusal warnings to the Defendant in English at a rapid speed. After this reading, the Defendant says he doesn’t want to keep doing it. Petrone then began the second test, Horizontal Gaze Nystagmus (“HGN”). He asked the Defendant if he wears contacts or glasses. The Defendant looked confused, Petrone then gestures with his hands by pointing to eyes. The Defendant then shakes his head from side to side, no he doesn’t [wear contacts or glasses]. Petrone explains instructions to the HGN test, the first being to not move your head, only your eyes. The test began and the Defendant immediately turned his head towards the pen. After the Officer corrected the Defendant on the instructions, Defendant stated he speaks French not English⁴. The Defendant completed the HGN test and followed the pen accurately with his eyes. Patrone then revisits the breath test and the Defendant refuses. Petrone says, “so you are refusing, I read you the warning before.” The Defendant then agrees. Petrone read the refusal warning again in English, however read it at a slower pace than the first time. The Defendant refuses again. It is clear from the video, at this moment, the Defendant seemed genuinely confused (IDTU Video [00:12:55]). The Officer says, “if you do it, then it’s not a refusal.” The Defendant then agrees again. The Defendant asks, “how many minutes?” the Officer replies, “6 seconds,” and the Defendant responds, “Ok, 1 minute, right?” The Officer replies, “how many times do I have to explain it to you” (IDTU Video [00:15:41]). The Officer was finally able to retrieve results from the Defendant’s blow. Petrone begins the third test by explaining the directions to the Walk and Turn evaluation. The Officer first explained the instructions orally, however the Defendant placed his right foot on the line rather than his left foot as instructed. The Officer then both orally and physically by example showed the Defendant what he was being asked to do from beginning to end. The Defendant completed the line test successfully. The Defendant also completed the One- Leg Stand Test successfully. The Defendant was read his Miranda rights in English by Officer Reynolds. As she read the Defendant his Miranda rights, line by line, the Defendant said that he understood at each line. However, he repeated it mechanically and said it each time prior to the Officer finishing her sentence. Reynolds then asked, “were you operating the vehicle?” and the Defendant responds, “New York.” Reynolds clarifies, she physically points to him, and says, “were you operating the vehicle, were you driving?” and the Defendant replies, “in the Bronx.” Shortly, thereafter, the Defendant says, “I turned, and you guys pulled me over…when I turned you guys were behind me.” He then asks, “was I speeding or what?” Reynolds doesn’t respond. The Defendant then says, “You guys didn’t even tell me why you pulled me over when you stopped me.” And Reynolds replies, “I am not going to tell you why we pulled you over.” CONCLUSIONS OF LAW In the context of a motion to suppress, the People bear the initial burden of “going forward to show the legality of the police conduct in the first instance” (People v. Berrios, 28 N.Y.2d 361 [1971] citing People v. Malinsky, 15 N.Y.2d 86, 91 [1965] and People v. Whitehurst, 25 N.Y.2d 389 [1969]). The defense then bears the ultimate burden, by a preponderance of the credible evidence, that the evidence to be used against him was acquired in an illegal manner. (People v. Thomas, 291 A.D.2d 462 [2d Dept 2002], citing People v. Berrios, 28 N.Y. Y2d 361; People v. Baldwin, 25 N.Y.2d 66 (1969); People v. Whitehurst, 25 N.Y.2d 389; Nardone v. US 308 U.S. 338 [1939]). The Stop Automobile stops are lawful where the police have probable cause to believe that a traffic violation has occurred, or when there is a reasonable suspicion that the driver or occupants of the vehicle committed, are committing, or are about to commit a crime. People v. Hinshaw, 35 N.Y.3d 427, 156 N.E.3d 812, 132 N.Y.S.3d 90, 2020 N.Y. Slip Op. 04816. It is the violation of a statute that both triggers the officer’s authority to make the stop and limits the officer’s discretion. People v. Robinson, 97 N.Y.2d 341, 767 N.E.2d 638, 741 N.Y.S.2d 147, 2001 N.Y. Slip Op. 10091. Before making a stop, the police officer must have probable cause to believe that the driver of an automobile has committed a traffic violation. People v. Washburn, 309 A.D.2d 1270, 765 N.Y.S.2d 76, 2003 N.Y. Slip Op. 17200. Probable cause, in turn, “does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place” (People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] [emphasis added]; see Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 [1996] ). Thus, “[a] police officer who can articulate credible facts establishing reasonable cause to believe that someone has violated a law has established a reasonable basis to effectuate a [traffic] stop” (Robinson, 97 N.Y.2d at 353–354, 741 N.Y.S.2d 147, 767 N.E.2d 638). Here, Reynolds testified that she and her partner were driving through the intersection of Rogers Place and Westchester Avenue when a van approached the side of their vehicle and almost hit it, causing them to stop short. It is worth noting that in the accusatory instrument Reynolds states that she observed the vehicle swerve in front of the marked RMP she was traveling in, and she stopped short. However, in Reynold’s testimony, she never testified that the Defendant’s vehicle swerved but, in fact, testifies that her own car had to both stop short and swerve. Further, Reynolds never testified that the Defendant violated the V.T.L. She never provided details surrounding how the Defendant’s actions, nor the surrounding circumstances, led to Defendant almost hitting her car. Reynold’s sole statement was that the Defendant was driving “erratically,” but she never describes what driving erratically meant. It is important to emphasize that the Officer made it very clear her reasoning for the stop. She stated on four separate occasions in her testimony, she stated as follows: 1) “because he was driving erratically and we wanted to see what was going on, if there was a problem with the driver⁵;” 2) “we wanted to find out what was going on with the driver⁶;” 3) “when we approached the vehicle, we didn’t know what was going on. We thought there might be something wrong with the person in the vehicle⁷;” and 4) “we didn’t realize it was a drunk driver in the vehicle. We actually thought something might be wrong with this person.⁸” The People had ample opportunity, on direct and on re-direct, to present testimony that would elicit facts into evidence to support the Officer’s conclusion that the Defendant was driving erratically. However, the People failed to aver that the Defendant violated the V.T.L. or Penal Law and failed to obtain the requisite testimony and evidence regarding the definition of driving erratically in relation to the Defendant on the night in question. Every case this court analyzed, the description of driving “erratically” was supported by a description of the Defendant’s violation of the V.T.L. or Penal Law. See People v. Warren, 160 A.D.3d 1132, 75 N.Y.S.3d 611, 2018 N.Y. Slip Op. 02508 (the arresting officer testified that prior to effectuating the traffic stop, he observed the vehicle travel in the opposite direction in excess of the posted speed limit and cross the double yellow line into his lane of traffic, causing him to swerve to avoid a collision); People v. Ferraiolo, 309 A.D.2d 981, 765 N.Y.S.2d 709, 2003 N.Y. Slip Op. 17666 (arresting officer testified that he observed defendant driving a truck in the wrong direction on a one-way street); People v. Douglas, 42 A.D.3d 756, 839 N.Y.S.2d 337, 2007 N.Y. Slip Op. 06129 (the officers were deemed to possess probable cause to stop the vehicle based upon erratic driving and traffic violations which they had personally observed. This case does not describe what erratic driving is nor does it describe the specific traffic violation, however, the stop was lawful because it began with an information from a known confidential informant that a crime was being committed); People v. Wright, 98 N.Y.2d 657, 773 N.E.2d 1011, 746 N.Y.S.2d 273, 2002 N.Y. Slip Op. 04469 (an officer had probable cause to stop a vehicle pursuant to a muffler violation, despite his primary motivation stemming from an unidentified complainant reporting reckless driving). Further, the People failed to provide any case law where the conclusory allegation of erratic driving was sufficient to support a finding of probable cause. Here, Reynolds did not articulate that any violation of V.T.L. or Penal Law occurred in her testimony, she simply stated that the Defendant was driving erratically. The People argue that the Officers had the requisite probable cause to stop the vehicle through police observations. The People argue that Reynold’s testimony that the Defendant swerved in front of the police vehicle, made a wide left turn, and his erratic driving were enough for them to stop the vehicle.⁹ However, 1) Reynolds never testified that the Defendant’s vehicle swerved, which is contrary to the information that alleges that she observed Defendant’s vehicle swerve in front of her marked vehicle; 2) Reynolds never testified to or alleges in her information that the Defendant made a wide left turn; and 3) the information never alleges that the Defendant was driving erratically. The Officer’s testimony that the Defendant was driving “erratically” was coupled with a description of the RMP stopping short. The People argue that the Officer had to stop [short] with such force that Reynolds, in the passenger seat, had to stop herself at the dashboard. However, Reynolds testified “so we were just jolted, I guess, a little because the car stopped short.” The People argue that pursuant to People v. Robinson and People v. Hinshaw, the Officers were permitted to stop the Defendant for violation of the V.T.L.¹⁰ In Robinson, the officer observed the Defendant’s car speed through a red light and pulled the vehicle over because they suspected it was a livery cab. The officer in that case testified they pulled the vehicle over because they wanted to talk to him about safety tips. The Robinson court held, where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop is lawful. In making that determination, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant. 97 N.Y.2d 341, 767 N.E.2d 638, 741 N.Y.S.2d 147, 2001 N.Y. Slip Op. 10091. In order to stop a moving vehicle based on a traffic violation, an officer must have probable cause to believe that such a violation has occurred. (Id.) Here, Officer Reynolds never testified that the Defendant committed a traffic violation. In Hinshaw, a state trooper stopped a vehicle when the trooper had observed no traffic violations. The trooper stopped the vehicle in order to, “investigate further and find out what the problem was.” The Court found that the trooper lacked an objectively reasonable suspicion that a crime had occurred and did not have probable cause to stop the vehicle because the officer did not observe any violations of the vehicle and traffic law, therefore the stop was unlawful. 35 N.Y.3d 427, 156 N.E.3d 812, 132 N.Y.S.3d 90, 2020 N.Y. Slip Op. 04816. The Court of Appeals reaffirmed its holding in Robinson in Hinshaw, the Court ruled that when the basis for a car stop is a traffic infraction, an officer must possess probable cause to believe that a traffic infraction occurred in order for the stop to be legal. (Id.) Here, Officer Reynolds stated over four times, in sum and substance, that she wanted to check on the Defendant, however, never mentioned any specific violation of the V.T.L. or Penal Law. Here, Officers stopped a vehicle because that car was allegedly driving erratically and nearly hit the RMP that they were driving. However, Reynolds failed to testify as to a single traffic violation that the Defendant committed while driving erratically.¹¹ She failed to testify that she subjectively believed his erratic driving was a violation of the V.T.L. or a result of his driving while intoxicated. Rather, she simply concludes, he was driving erratically. Further, the People failed to submit evidence that proved there were additional aggravated circumstances beyond the sole claim of the officer’s car was almost hit by the Defendant’s vehicle.^{12 13} The fact in question is whether the Defendant’s near collision with the marked police car, according to the Officer’s conclusory testimony, with no other supporting facts, make out the necessary probable cause for a stop. This Court finds in the negative. Officer Reynold’s testimony related specifically to the pretext of the stop does not provide this Court with enough information to determine that the Defendant was stopped due to a V.T.L. or Penal Law violation. Officer Reynolds testimony was non-specific and unresolved. Her testimony failed to consistently describe the way in which the Defendant nearly collided with their car that aligned with the information. The details in the accusatory instrument read, “she observed said vehicle swerve in front of the marked RMP she was traveling in causing said RMP to stop suddenly in order to avoid colliding with the defendant’s vehicle.” In her testimony, she maintains that they stopped short, however, describes that the Defendant’s vehicle approached the side of their vehicle. These details are crucial because if the Defendant was approaching the side of their vehicle versus the front, and they were forced to stop short, there would have been a sure collision on the side. Additionally, Officer Reynold’s failed to testify about the circumstances surrounding the manner in which the RMP was driving. She never testifies about the details surrounding exactly how the Defendant’s car nearly collided with her car, for example, stating that the RMP had the right of way, and the Defendant did not, which caused the near collision.¹⁴ She actually never states definitively that the Defendant was at fault for almost hitting their car, she simply provides the conclusory statement that the Defendant almost hit their car. Finally, her body worn camera video begins at the point of arrest. The People provided no body worn camera footage of what occurred or what was said at the point the Officers initially stopped the Defendant. She stated that they didn’t start recording until they realized that it was an arrest situation. She further stated, that at first, they didn’t know what was going on and it wasn’t until they got to the vehicle that they realized that the driver was intoxicated. However, if the Defendant was stopped due to his erratic driving and her vehicle having to stop short, as she claimed, she should have known there was a potential for an arrest, and therefore should have had her body worn camera on from the point the Defendant’s vehicle almost collided with the RMP. Nevertheless, there is some insight as to what did not occur during the initial stop, provided at the end of the IDTU video, the Defendant asks her directly and specifically about the reason for the stop, she ignores him multiple times and never answers his inquiry.¹⁵ She actually says, “I am not going to tell you.” Finally, Officer Reynolds stated three times that the Defendant was unsteady on his feet, however, the footage provided does not support her statement. She stated that the Defendant looked disheveled, describing same as the clothing he was wearing was “not clean, and not all put together, I guess.” However, the footage does not support her statement and is in fact contrary. The People have failed to meet their burden to show the legality of the police conduct. As such, this Court finds that the stop of the Defendant’s vehicle was unlawful because the officers did not have probable cause to believe the defendant committed a traffic infraction at the time the stop was conducted. The Statements “[O]n a motion to suppress inculpatory statements, the defendant bears the burden of persuasion, but the People must first establish the legality of the police conduct and the defendant’s waiver” of his or her Miranda rights (People v. Kemp, 131 A.D.2d 265, 267, 521 N.Y.S.2d 546; see People v. Jenkins, 34 A.D.3d 833, 834–835, 824 N.Y.S.2d 676; People v. Leftwich, 134 A.D.2d 371, 372–373, 520 N.Y.S.2d 849). Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined ” ‘upon an inquiry into the totality of the circumstances surrounding the interrogation,’ ” including an evaluation of the defendant’s ” ‘age, experience, education, background, and intelligence’ ” (People v. Dunbar, 104 A.D.3d 198, 210, 958 N.Y.S.2d 764, lv. granted 21 N.Y.3d 942, 968 N.Y.S.2d 4, 990 N.E.2d 138, quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197; see People v. Reed, 75 A.D.2d 650, 427 N.Y.S.2d 442). “ The failure to adequately advise a suspect of his or her rights as required by Miranda requires suppression of even voluntary statements” (People v. Dunbar, 104 A.D.3d at 213, 958 N.Y.S.2d 764). Here, the People concede that the Defendant’s statements made in violation of Miranda were not voluntary made. As such, all statements made, including any noticed statements, made by the Defendant in violation of Miranda must be suppressed. The Blow It is clear from the video that the Defendant did not fully understand English. Throughout the video, the Defendant goes back and forth as to whether he is consenting to blow. The Defendant first consented to blow, then he refused, then consented again and refused again. At one moment, he verbally refused and then blew anyway. Which resulted in both a refusal and a result from the blow. The question is whether the results of the blow can be suppressed if the Defendant did not understand the consequences, choices, and options available to him if he refused due to a language barrier. The Defendant clearly had a language barrier. Various courts have found that refusal warnings administered to non-English speaking defendants did not satisfy the “clear and unequivocal” language requirement. See, e.g., People v. Garcia-Cepero, 22 Misc. 3d 490, 874 N.Y.S.2d 689, 692–94 (Bronx Co. Sup. Ct. 2008); People v. Robles, 180 Misc. 2d 512, 691 N.Y.S.2d 697 (N.Y. City Crim. Ct. 1999); People v. Camagos, 160 Misc. 2d 880, 611 N.Y.S.2d 426 (N.Y. City Crim. Ct. 1993); People v. Niedzwiecki, 127 Misc. 2d 919, 487 N.Y.S.2d 694 (N.Y. City Crim. Ct. 1985). But see People v. Burnet, 24 Misc. 3d 292, 882 N.Y.S.2d 835, 841- 42 (Bronx Co. Sup. Ct. 2009); People v. An, 193 Misc. 2d 301, 748 N.Y.S.2d 854 (N.Y. City Crim. Ct. 2002). See generally People v. Nunez, 65 Misc. 3d 129(A), 118 N.Y.S.3d 912 (App. Term 2019), 34 N.Y.3d 1018, 114 N.Y.S.3d 769, 138 N.E.3d 498 (2019) (per curiam); People v. K.S., 62 Misc. 3d 359, 87 N.Y.S.3d 794, 798-99 (N.Y. City Crim. Ct. 2018) However, here the Defendant produced a result from his blow within two hours of his arrest, and therefore the rules regarding deemed consent apply. Pursuant to V.T.L. §1194, any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical [breath] test for the purpose of determining the alcoholic and/or drug content of the blood…provided that such test is administered by or at the direction of a police officer having reasonable grounds to believe such person to have been operating in violation of any subdivision of section 1192 and within two hours after such person has been placed under arrest for any such violations. For the purposes of this paragraph, “reasonable grounds” to believe that a person has been operating a motor vehicle after having consumed alcohol in violation of 1192-a of this article shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of such subdivision. V.T.L §1194. Pursuant to People v. Odum, 31 N.Y.3d 344, 78 N.Y.S.3d 252, 102 N.E.3d 1034 (2018), the Court of Appeals held that: The applicability of the deemed consent provision in Vehicle and Traffic Law §1194(2)(a)(1) is not limited to those who are “incapable of consenting” or, as the dissent would have it, “unconscious or incapacitated drivers.” The statutory language itself provides that “[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test…within two hours after…arrest” (emphasis added)…The relevant legislative history further clarifies that the deemed consent provision applies to any person “suspected of driving while under the influence of intoxicating liquors.” Finally, in Kates, this Court noted that the “general rule” is that any person operating a motor vehicle is deemed to have consented to such tests; we did not suggest that the deemed consent provision is limited to those who are unconscious or otherwise incapable of consent, and stated that the “exception” to the general rule contained in subdivision (2) “is only applicable when the driver refuses to consent.” That is, the relevant statutory distinction between conscious and unconscious drivers is that only the former need be given the opportunity to revoke consent. Further, there is no constitutional, fundamental or other right to refuse to submit to a chemical test (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 [1966]; People v. Goodell, 79 N.Y.2d 869, 581 N.Y.S.2d 157, 589 N.E.2d 380 [1992]; People v. Shaw, 72 N.Y.2d 1032, 534 N.Y.S.2d 929, 531 N.E.2d 650 [1988]; People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978] ). Driving is commonly held to be a privilege, not a right. Thus, acceptance of a license requires adherence to all associated statutory and regulatory requirements including consent to submit to a chemical test. However, even if this court held driving to be a right, which it does not, such a discussion would be irrelevant to this court’s analysis since VTL 1194(2)(a) applies to “any person who operates a motor vehicle.” Since there is no right to refuse a chemical test, it is axiomatic that there is no constitutional or fundamental right to an interpreter throughout the entire chemical test process. Defendant’s equal protection and due process claims are therefore denied. People v. Burnet, 24 Misc. 3d 292, 301- 02 [Sup Ct 2009]. Here, the Defendant blew into the machine within two hours of his arrest.¹⁶ Pursuant to statute, his blow at approximately 4:35am is within the two-hour time frame provided by the legislature and the Defendant, as a driver in this state was deemed to have given consent to the blow. Due to this deemed consent, the concern of a language barrier relating to the refusal warnings is inapplicable. However, this is not to indicate that the Defendant did not require a translator.¹⁷ Based on encompasses all police observations of the defendant’s conduct, all statements made by Defendant and all chemical tests occurring after the stop of the defendant’s vehicle. This constitutes the decision and order of the Court. Dated: August 10, 2022