Opinion
No. 2016QN043556.
07-06-2017
The PEOPLE of the State of New York, v. Dulce ANTUNEZ, Defendant.
Queens County District Attorney's Office by ADA Rosanne, Howell, Esq., for the People. Queens Law Associates by Christopher Van Zele, Esq., for the defendant.
Queens County District Attorney's Office by ADA Rosanne, Howell, Esq., for the People.
Queens Law Associates by Christopher Van Zele, Esq., for the defendant.
ALTHEA E. DRYSDALE, J.
The defendant, Dulce Antunez, is charged with driving while intoxicated ( VTL § 1192[3] ), and driving by an unlicensed operator ( VTL § 509[1] ).
On June 27, June 28, and July 3, 2017, a Dunaway/Johnson /Refusal hearing was held before this court. Police Officer Pablo Urena testified for the People. Based on his credible testimony, the court makes the following findings of fact and law.
Findings of Fact
Police Officer Pablo Urena has been a police officer for one and one-half years. He is now assigned to the 110th Precinct. In his time as an officer, he has made 20 arrests, 2 of which involved intoxicated drivers. But, he has also assisted in 15 arrests involving intoxicated drivers. Additionally, Officer Urena is fluent in Spanish, having spoken the language since he was a child.
On September 28, 2016, Officer Urena was on uniformed patrol, in a marked radio patrol vehicle, with Officers Gayle and Allegra. At approximately 12:10am, while leaving the Precinct, Officer Urena received a radio run for a motor vehicle accident at the intersection of 40th Avenue and 104th Street in Queens County. When his unit arrived at the scene, Officer Urena observed the defendant seated in the driver's seat of a vehicle that rear ended a parked car. The defendant's vehicle had its engine running with the key in the ignition.
Officer Urena approached the defendant, whose windows were rolled down, and asked, "what happened?" The defendant responded, "I got into an accident." Officer Urena was about two feet from the defendant, where he observed a strong odor of alcohol, and bloodshot, watery eyes. He requested the defendant's driver's license, but she could not produce one. Officer Urena then asked the defendant, "where are you coming from?" The defendant responded that she was coming from the bar. At this point, Officer Urena asked the defendant to step out of the vehicle, and escorted her to the front of her vehicle. There, Officer Urena observed the defendant to be swaying on her feet and stumbling. He believed the defendant to be intoxicated, and placed her under arrest. The defendant was transported to the 110th Precinct for further testing.
The People are not seeking to introduce the defendant's statement at trial.
The People are not seeking to introduce the defendant's statement at trial.
The events at the 110th Precinct were memorialized in two videos, entered into evidence as People's 1 and 2. At the 110th Precinct, Officer Urena was present. The IDTU technician, Police Officer Wallace, offered the defendant a chance to take the Intoxilyzer breath test. Officer Wallace then played a video in Spanish asking the defendant if she would take the breath test. The defendant indicated that she would submit to a breathalyzer exam by stating "si" and she nodded her head in an up-down motion. The IDTU technician then gave the defendant breathalyzer instructions in English, as well as a visual demonstration. On the video, the defendant nods her head up and down in what appears to be an indication that she understands what is required of her. The testing is stopped because Officer Wallace observed the defendant chewing gum. Officer Wallace states that the testing will recommence in 20 minutes because the chewing of gum will interfere with the breath test.
After the 20 minutes, the video recording starts again. Officer Wallace provides the defendant with breathalyzer instructions in English, as well as a visual demonstration for a second time. The defendant nods her head up and down again while he is instructing her. The defendant approaches the Intoxilyzer 5000en, takes a deep breath, and places her mouth on the mouthpiece. But, she does not blow into the machine. The IDTU technician tells the defendant to blow into the machine, and that she is not blowing into the machine. He then explains to the defendant that she must blow into the machine, and allows her to blow again. But, she places her mouth on the mouthpiece and does not blow into the machine. Officer Wallace asks her to step back, and he takes his own mouthpiece and blows into it. The defendant sees this, and says "okay." The defendant approaches the machine, places her mouth on the mouthpiece. But, again, she does not blow. Officer Wallace then indicates to the defendant that he will show her how to blow into the mouthpiece one more time, and if she does not blow, he will deem the test a refusal. Officer Wallace blows into his own mouthpiece, and the defendant makes a hand motion and makes a blowing sound. Officer Wallace states "yes." The defendant approaches the machine, places her mouth on the mouthpiece, and for a third time, does not blow. Officer Wallace warns the defendant, "one more time, and it's a refusal, do you understand me?" The defendant then goes to the machine and fails to blow. Officer Wallace tells the defendant that she is not blowing into the machine. The defendant, points to her cheeks, sighs, and then turns away from Officer Wallace. As she walks towards Officer Urena, she points to her cheeks and makes a statement to Officer Urena. Officer Urena tells Officer Wallace, "she says her cheeks hurt." Then, Officer Urena speaks to the defendant in Spanish. He tells her "the IDTU technician is saying that you're not blowing into the machine." The defendant walks up to the Intoxilyzer 5000en, places her mouth on the mouthpiece and does not blow. Officer Wallace asks the defendant to step back and view the television. He plays the Spanish refusal warning. The defendant nods her head up and down. Officer Wallace then resets the Intoxilyzer machine, and provides the defendant with instructions on how to take the test again. The defendant nods her head up and down as Officer Wallace provides these instructions. He also warns the defendant that if she does not blow, it will be a refusal. The defendant takes a deep breath, and exhales. She then places her mouth on the mouthpiece and makes a blowing sound, but does not actually blow into the machine. She repeats these actions several times. The defendant throws her hands up in the air, and walks away from the test.
Entered into evidence as People's 3.
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Officer Wallace shuts the machine down, and reports that the defendant blew a .000 insufficient sample. He also indicates that physical coordination test will not be given due to a language barrier. The defendant is not asked any questions, and the testing ends.
Findings of Law
While responding to a motor vehicle accident, Officer Urena met with the defendant who was seated in the driver's seat of a vehicle that rear ended a parked car. There, Officer Urena observed the defendant exhibit the indicia of intoxication, which included bloodshot, watery eyes and a strong odor of alcohol. The vehicle's engine was running, and the keys were in the ignition. These observations provided Officer Urena with probable cause to arrest the defendant for driving while intoxicated (see People v. Vargas, 123 AD3d 1149 [2d Dept 2014] [the defendant's appearance combined with the smell of alcohol emanating from him gave the officer probable cause to arrest for driving while intoxicated]; People v. Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant's breath gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law § 1192 ] ). And, while there was no testimony or eyewitness observation of the defendant's actual operation of the motor vehicle, such observations are unnecessary ( People v. Booden, 69 N.Y.2d 185 [1987] ; see People v. Dolan, 1 Misc.3d 32 [App Term, 1st Dept 2003] [information containing defendant's admission as to driving and arresting officer's observation of defendant in driver's seat with seat belt fastened and air bag deployed found facially sufficient] ). Thus, Officer Urena had probable cause to believe the defendant was operating the crashed vehicle when she was seated in the driver's seat, with the keys in the ignition and the engine running.
With regards to the defendant's motion to suppress evidence of her refusal, that motion is denied.
A person who operates a vehicle in New York is deemed to have provided consent to a chemical test of his or her breath in order to determine the blood alcohol content (see Vehicle and Traffic Law § 1194[2][a] ). A driver of a vehicle has a qualified right to decline to voluntarily take that chemical test provided they have an understanding that this refusal will result in the immediate suspension and ultimate revocation of the motorist's driver license for a period of one year ( People v. Sirico, 135 AD3d 19 [2d Dept 2015], citing VTL § 1194, and People v. Smith, 18 NY3d 544, 548 [2012] ). This refusal "shall be admissible in any trial, proceeding or hearing" based upon a violation of VTL § 1192, "but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" ( VTL § 1194[2][f] ; People v. Sirico, 135 AD3d 19 [2d Dept 2015] ; see Matter of Gargano v. New York State Dept. of Motor Vehs, 118 A.D.2d 859, 860 [2d Dept 1986] ). The officer's testimony and the video at the 110th Precinct demonstrate that the defendant refused and such refusal was persistent and clear.
The defendant argues that the People should not be allowed to admit evidence of the refusal because there was a language barrier, and that the police should have provided the defendant breathalyzer instructions in Spanish. Essentially, the defendant argues that her inability to perform the breath test was based on a language barrier, and not, as the People argue, a persistent and clear refusal.
While not directly on point, the Court finds People v. Aviles, 28 NY3d 497 (2016) and People v. Salazar, 112 AD3d 5 (1st Dept 2013) instructive. In Aviles and Salazar, the issue was whether the police violated the defendants' constitutional right when they failed to conduct physical coordination tests because the police concluded that there was a language barrier. The Court of Appeals and the First Department held that the police did not violate the defendants' constitutional right when they failed to administer physical coordination tests due to perceived language barriers.
The Salazar court found that the right to an interpreter does not attach until an adversary judicial proceeding is initiated (see People v. Salazar, 112 AD3d 5 [1st Dept 2013] [the police did not violate the defendant's constitutional right for failing to administer a physical coordination test in Spanish] ). There may be reasons why the police could not find or did not have a Spanish speaking officer at the IDTU Room for testing, and "[t]o require the Police Department to have qualified interpreters on call would impose unrealistic and substantial financial and administrative burdens" ( id. at 11 ). The courts should not "substitute their judgment for the discretionary management of public business by public officials," as the courts have not been lawfully charged with that responsibility (id. quoting Roberts v. Health & Hosps. Corp., 87 AD3d 311, 326 [2011], lv denied 17 NY3d 717 [2011], citing Matter of Riverkeeper, Inc. v. Planning Bd of Town of Southeast, 9 NY3d 219, 232 [2007] ; Matter of Abrams v. New York City Tr Auth, 39 N.Y.2d 990, 992, [1976] )." Additionally, while Officer Urena, a fluent and native speaker of Spanish, was in the testing room, it cannot be said that Officer Urena had the requisite knowledge and training to properly translate the breath test. That is not to say that Officer Urena's language proficiency is at question, but rather whether he had knowledge and experience in the administration of breath tests so that he could have correctly translated the instructions (see generally Aviles, supra at 503–4). For example, in Aviles, the Court found that the police and the public have "substantial interest in ensuring the reliability of coordination tests, and the clarity of the instructions is crucial to the reliability of the results." Perhaps, it is true that coordination tests are much more complicated than a breathalyzer test (id. ), but "translation of instructions cannot be delegated to a translator, as the administering officer must have the requisite training and experience, and must understand the translated instructions ..." (id.; see People v. Robinson, 53 AD3d 63, 66 [2d Dept 2008] [Officer Gilsenan had received 40 hours of training from the New York State Department of Health with respect to using the Intoxilyzer machine, and passed a test qualifying him to administer Intoxilyzer tests]; People v. Popko, 33 Misc.3d 277 [Crim Ct, Kings County 2011] [Officer Tsoukari attended a one week training course before being qualified as an IDTU technician]; and People v.. Cancel, 137 Misc.2d 360 [Crim Ct, New York County 1987] [Officer Delgado completed 50 hours of training before being certified as a breathalyzer operator] ).
Thus, based on the video evidence, and based on Officer Urena's credible testimony, the defendant's refusal to blow into the tube of the testing machine, preventing her breath from being tested, was properly deemed a refusal by the IDTU technician (see Matter of Johnson v. Adduci, 198 A.D.2d 352 [2d Dept 1993] ; see also People v. Brachter, 165 A.D.2d 906 [3d Dept 1990] ).
Accordingly, the defendant's motion to suppress is denied in its entirety.
The foregoing constitutes the decision and order of the Court.