Opinion
NA 06632/04.
Decided December 20, 2005.
Honorable Denis Dillon, District Attorney, Michael Kasmarek, Mineola, NY, F. Scott Carrigan.
Decision After Hearing
Defendant's application to suppress blood test results, evidence of police observations of him at the scene of his arrest, and a statement he made to police at the scene of his arrest, on account of an unlawful seizure of his person; if not otherwise suppressible, to suppress blood test results on account of a failure to obtain his actual consent to the test and to draw the blood within two hours of his arrest; and, if not otherwise suppressible, to suppress his statement on account of a failure to observe the requirements of Miranda v. Arizona ( 384 US 436, 444), is granted to the extent that use by the People of the statement at issue as part of their case-in-chief is suppressed.
Defendant presently stands accused, by simplified traffic information, of driving with an unlawful blood alcohol content ( see Vehicle and Traffic Law § 1192). According to the accusatory instrument and virtually every other document in the court file, the incident giving rise to the charge is alleged to have occurred on March 19, 2004 at 3:00 a.m. By order dated April 6, 2005, I granted so much of Defendant's omnibus motion which was to suppress evidence on assorted grounds to the extent of putting specified issues down for a combined pretrial hearing. That hearing took place on October 14, 2005. Three witnesses, all members of the Nassau County Police Department and all called by the People, testified: Police Officer Rob D'Alto, Police Officer Samuel Morales, and Detective Daniel Dacres.
Officer D'Alto was the first to take the stand. He testified that, on March 19, 2004 at 3:00 a.m., he was on "RMP" duty; that it was a snowy night; that there was "an inch or so" of snow on the roadway; that he was traveling west on Northern Boulevard in Great Neck, New York when he observed a vehicle on the east side of the roadway; that the car's right tire was "parked on the curb;" that there appeared to be skid marks in the snow; that he saw somebody inside the car who appeared to be sleeping or slumped over; that he made a U-turn to "see if I could render medical aid or something;" that he got out of his car and approached the driver's side of the other car; that he saw a person, identified at the hearing as Defendant, in the car; that the engine of the car was not running; that he called for back-up; that when back-up arrived, he asked Defendant to roll down his window; that he detected the strong odor of an alcoholic beverage on Defendant's breath; and that he asked Defendant to step out of the car so he could administer standard field sobriety tests. He further testified that he administered a horizontal gaze nystagmus test; that he observed "nystagmus" which he testified was an involuntary jerking of the eye in each of Defendant's eyes; that he administered the one-leg-stand test, which he described; that, on that test, Defendant used his arm for balance and put his foot down six times; that he next administered the nine-step-walk-and-turn test, which he also described; that, on this test, Defendant stepped off the line, used his arms for balance, and took 25 steps before he (Officer D'Alto) stopped him; that he administered a "Portable Breath Test," which he characterized as a standard field sobriety test, using his own machine; that he calibrates his machine every two months; and that the "Portable Breath Test" produced a reading of ".16."
Officer D'Alto next testified that "during the course" of the standard field sobriety tests "or just shortly thereafter" he asked Defendant "what happened, how did you end up here;" that Defendant stated he "came from work and the bar, I don't recall I don't recall how I ended up here;" that Defendant was not handcuffed at the time; that his (Officer D'Alto's) weapon was in its holster; that, at that point, two other officers, one of whom was Officer Morales, were at the scene; that, after the performance of the standard field sobriety tests, he placed Defendant under arrest; and that the time of the arrest was "3:30." He further testified that he placed Defendant in a patrol car, in the back seat, for transport to Central Testing; that he sat in the back with Defendant; that Officer Morales was driving; that, as soon as the police car began to move, Defendant complained of chest pains; that Defendant became "semi-conscious;" that he instructed Officer Morales to take Defendant to North Shore Hospital; that Defendant was "semi-conscious" in the car; that Defendant walked into the hospital "on his own;" that it took "a minute or two" to get to the hospital; that Defendant was taken to the emergency room; that he and Officer Morales remained with Defendant; that shortly after "we put him into a hospital bed," he became unconscious;" that there "came a time" when he asked Defendant to submit to a chemical test of his blood; that at 4:25 a.m., he read Defendant the "authorization form;" that Defendant "did not respond as he was unconscious;" that Officer Morales and Detective Dacres then of the highway patrol unit were present at the time; that Detective Dacres was there to administer the "blood kit;" that a nurse took a blood sample at "5:17," but that he (Officer D'Alto) went to Central Testing at 5:00 to begin the paperwork. Finally, Officer D'Alto testified on direct examination about the "arrest process" procedures; that they entail "computer work;" that there are "about eight different screens we use;" and that it was "probably about 5:45" when he started the "arrest process," by which time he had been on duty for 12 hours.
On cross-examination, Officer D'Alto testified that, among other things, he did not know what time it began snowing; that he did not observe any accident; that he did not see how the car he observed with one wheel on the curb came to be at its location; that the keys were in the ignition; that Defendant was behind the wheel of the car when he (Officer D'Alto) approached; that Defendant was not free to leave; that he administered the "PBT" after he administered the nine-step-walk-and-turn; that after completion of the standard field sobriety tests but before administration of the "PBT," he made the determination that Defendant was intoxicated; that he did not remember "exactly" when he asked Defendant what happened; that "it was sometime during the whole investigation process;" and that it was "possible that it was after the PBT test." He acknowledged that, on direct, he needed to refresh his recollection by looking at documents he prepared on the date of the incident, and testified that he had no independent recollection of the time of Defendant's arrest; that, according to the crime report, and, apparently, some other documents as well, the time of the arrest was 3:00 a.m.; that the time of Defendant's statement was "approximately" 3:15 a.m.; that he (Officer D'Alto) left the hospital sometime after 5:00 "after blood was actually drawn;" and that the 5:00 departure-time from the hospital that he noted in his memo book "[the following day], might have been entered in error." Finally, although the record is silent as to when, Officer D'Alto did testify that he notified "highway patrol" to come to the hospital with a blood kit.
On re-direct, in an effort to explain the inconsistency between his testimony about the time of the arrest, and the time as specified in some of the documents he prepared after leaving the hospital and returning to Central Testing, Officer D'Alto testified that there was a "glitch" in the "actual paperwork system;" that "when you log in, I believe, when you put time of occurrence in there, it automatically puts that as the time of offense [sic; probably should be "arrest"] and then you have to go back and change the time of offense [sic; probably should be "arrest"] to make it print correct [sic]. Obviously, that day I made a mistake and I didn't go back and correct it." He then repeated both his direct testimony that the time of Defendant's arrest was 3:30 a.m., and his testimony on cross that Defendant made the statement at issue at 3:15 a.m.
Officer Morales was the next witness. He testified, among other things, that on March 19, 2004 at 3:00 a.m., he was on "RMP" duty; that he received a call to assist in a Vehicle and Traffic Law investigation; that he responded to the location; that Officer D'Alto and another officer were there at the time he arrived; that "SFSTs" were "going on;" that Defendant was thereafter placed under arrest; and that the time of the arrest was "0330 hours." Over the Defendant's objection, I admitted into evidence a tape of Officer Morales' radio transmission, a transmission he testified he made while "[I was] probably on my way to the Central Testing site [letting headquarters know that I am going to be (there)]."
The tape was played during the hearing, and was then, in part, inaudible. I re-listened to the tape after the hearing. The audio certification, which I could hear on replaying the tape, specifies that the transmissions, therein certified as true copies of transmissions recorded on a master tape, came from the third and sixth precincts "starting" at "0306 hours, ten seconds." There is then a break, and an officer, presumably Officer Morales, relates some police vehicle numbers. There is then some static, some cutting out, and then Officer Morales reports on the tape that the "TOA (time of arrest)" was "0330." A dispatcher then speaks to Officer Morales, stating that the transmission was cutting out, whereupon Officer Morales repeats some license or other such numbers.
Officer Morales next testified at the hearing that he did not go to Central Testing and instead "[w]e went to North Shore Hospital," and that he was there when blood was drawn from Defendant. He also testified he "believe[d]" it was "0517 hours" when the nurse drew the Defendant's blood.
Detective Dacres was the last witness. He testified that on March 19, 2004 he was a police officer with the highway patrol division of the Nassau County Police Department; that at 3:30 a.m. on that date he received a radio assignment to take a "blood kit" to North Shore Hospital; that he arrived at the hospital at approximately 4:00; that he tried to locate Officer D'Alto; that he did so; that he sought health-clearance authorization from a doctor to have Defendant's blood drawn; that he and the attending physician got into a dispute about whether police were authorized to have Defendant's blood drawn; that he (Detective Dacres) called his command and was advised that the situation came under the "guidelines of implied consent;" that that the attending physician refused to participate; that a nurse agreed to draw the blood; that the nurse did so; and that Officer D'Alto took possession of the vials containing Defendant's blood. On cross-examination, Detective Dacres testified that he was on patrol when he got the radio assignment to report to North Shore Hospital. He also confirmed that the Communications Bureau communicated the assignment to him at "0330."
I conclude that no evidence is suppressible on account of a violation of Defendant's right to be free of an unreasonable seizure of his person. Defendant's tacit claim to the contrary notwithstanding, Officer D'Alto had a lawful basis for approaching Defendant's car. Indeed, Officer D'Alto's observation of Defendant, either unconscious or asleep, in a car with one wheel up on the curb and apparent skid marks in snow which, the evidence indicates, had fallen relatively recently, not only justifies his approach to make inquiry, it gave rise to an obligation to do so ( cf. People v. Debour, 40 NY2d 210, 218, 386 NYS2d 375, 381). And, given the position of Defendant's car, the strong odor of alcohol justifies Officer D'Alto's asking Defendant to step out of the car to submit to standard field sobriety tests ( id.; see also People v. Kehley, 166 Misc 2d 846, 634 NYS2d 1008 [Crim Ct, Richmond County, 1995, Rooney, J.]). Those test results, together with the results of the ensuing portable machine test of Defendant's breath, provide probable cause to believe that Defendant was intoxicated ( People v. Ball, 141 AD2d 743, 529 NYS2d 840 [2d Dept. 1988]; People v. McMillan, 112 Misc 2d 901, 447 NYS2d 626 [Monroe County Court, 1982, Mark, J.]). And although Defendant contends there was no probable cause to believe he actually operated the car in which Officer D'Alto found him, I conclude that the skid marks in recently fallen snow, Defendant's position behind the wheel, and the position of the keys in the ignition, demonstrate that it is at least reasonably likely that Defendant operated the car while in that intoxicated state ( cf. CPL 70.10).
Even though the level of police intrusion was justified at every stage of the encounter, and even though no question of coercion is raised, I conclude that the statement Defendant made at the scene of his arrest — "I came from work and the bar, I don't recall how I ended up here" — must be suppressed as the product of custodial interrogation without benefit of Miranda warnings. True, there is ongoing judicial debate about which side bears the burden of proving whether a defendant is in custody so as to require observation of the procedures set forth in Miranda v. Arizona (see People v. Colon, 5 Misc 3d 365, 784 NYS2d 316 [Sup Ct, New York County, 2004, Kahn, J.]; People v. Mitchell, 5 Misc 3d 263, 781 NYS2d 196 [Sup Ct, Kings County, 2004 McKay, J.]; cf. People v. Alls, 83 NY2d 94, 608 NYS2d 139). But regardless of which side does so, Officer D'Alto's apparently deliberately imprecise assertions about when "during the investigatory process" he asked Defendant the question that produced the statement, together with his admission that it was "possible" he made the inquiry after he had Defendant submit to a portable machine breath test, compel the conclusion that Officer D'Alto in fact made the inquiry at the conclusion of the investigation. Indeed, I find he made the inquiry after he had at least reasonable cause to believe that Defendant had been operating the car, after Defendant had failed each of the standard field sobriety tests, after Officer D'Alto had come to the conclusion that Defendant was intoxicated, and after Defendant submitted to a portable machine test of his breath that produced a positive reading. Defendant had thus by that time been detained at the scene for more than the "presumptively brief" period that, for instance, sustains routine traffic stops ( see People v. Mathis, 136 AD2d 746, 523 NYS2d 915 [2nd Dept. 1988]; cf. People v. Aia, 105 AD2d 592, 482 NYS2d 56 [3rd Dept. 1984]). It is obvious that, before Officer D'Alto made inquiry, arrest was the next step, and that Defendant had been deprived of his freedom to an extent significant enough that a reasonable person innocent of any crime would, in the same circumstance, have thought that he or she was in custody and that arrest was imminent ( see People v. Yukl, 25 NY2d 585, 305 NYS2d 857; cf. People v. Duncan, 241 AD2d 566, 660 NYS2d 81 [3d Dept. 1997]; People v. Crocker, 125 AD2d 132, 512 NYS2d 589 [3d Dept. 1987]; and see Miranda v. Arizona, supra). That Officer D'Alto asked the question which produced an incriminating answer before rather than after he actually placed Defendant in handcuffs does not make the inquiry non-custodial ( cf. People v. Hoffman, 41 NY2d 29, 390 NYS2d 843).
That Defendant was in custody for Miranda purposes does not, however, also mean he had been "placed under arrest" within the meaning of Vehicle and Traffic Law § 1194(2)(a)(1), a subsection of a statute that, like Vehicle and Traffic Law § 1194(2)(a)(2), sets forth a purportedly bright-line "two-hour" standard for determining the admissibility of the results of a chemical test of the breath or blood of someone whom police suspect or have reasonable cause to believe has violated Vehicle and Traffic Law § 1192. Inasmuch as field testing of a suspect's breath pursuant to Vehicle and Traffic Law § 1194(1)(b) — via a portable machine breath test — is often used to determine whether there is probable cause to arrest a person for violating Vehicle and Traffic Law § 1192 ( see People v. Thomas, 121 AD2d 73, 509 NYS2d 668 [4th Dept. 1986]), or for otherwise requiring a driver to submit to a chemical test ( see Vehicle and Traffic Law § 1194[b] ; see also Vehicle and Traffic Law § 1194[a][2]), it is unlikely that police will ever have occasion to administer a portable machine test after someone has been placed under arrest. Nonetheless, the two-hour period within which, e.g., a medical professional must, at the direction of a police officer, draw blood for chemical testing commences at the time of the administration of a field breath test (see Vehicle and Traffic Law § 1194[a][2]), or at the time the suspect is "placed under arrest," whichever is later ( see People v. Zawacki, 244 AD2d 954, 665 NYS2d 172 [4th Dept. 1997]; People v. Morris, 8 Misc 3d 360, 793 NYS2d 754 [Crim Ct, New York County, March 25, 2005, Sciarrino, J.]). And although it appears that the two-hour rule was enacted because of scientific reliability concerns ( see People v. Victory, 166 Misc 2d 549, 631 NYS2d 805 [Crim Ct, Kings County, 1995, Maltese, J.]), it has no application where a defendant actually — as opposed to doing so by implication — consents to the test ( see People v. Atkins, 85 NY2d 1007, 630 NYS2d 965).
The two-hour rule is thus somewhat unrelated to its purpose ( see People v. Victory, supra), thereby turning application of it away from considerations of competence and toward whether, as if judges had instant replay at their disposal, a particular test was conducted on one side or the other of the two-hour bright line. The first step in applying this rule is determining when the two hour period began. And although some trial-level courts have equated "custody" with formal arrest so as to start the clock running on the time by which blood must be drawn without a defendant's actual consent ( see e.g., People v. Crocker, supra; cf. People v. Atkins, supra), the plain language of the statute suggests that formal arrest is what is required unless, because a defendant is already unconscious, formal arrest would be an empty gesture ( see People v. Ladd, 89 NY2d 893, 653 NYS2d 259; People v. Goodell, 79 NY2d 869, 581 NYS2d 157; People v. Almond, 151 AD2d 820, 542 NYS2d 59 [3rd Dept. 1989]).
There can be no doubt that Defendant, unconscious after his arrest, did not actually consent to have his blood drawn. The two-hour rule therefore applies ( cf. People v. Atkins, supra), and as noted above, the two-hour period began with Defendant's formal arrest. In that regard, Defendant urges that the two-hour period commenced at 3:00 a.m., the time of arrest that Officer D'Alto set forth in the crime report. He also urges that the 3:30 a.m. call to Detective Dacres to report to the hospital with a blood kit "proves" that the arrest was earlier, at 3:00 a.m., and that, therefore, the draw of blood at 5:17 a.m. was 17 minutes too late.
I do not agree.
It is true that the record establishes that Officer D'Alto was less than precise in the preparation of his paperwork, and it is my hope that the police department has corrected the computer programing "glitch" to which Officer D'Alto attributes what he testified was his error in noting the time of the arrest on the crime report. His prior inconsistent statement is not, however, proof of the time of Defendant's arrest and is instead an item of inconsistency to be considered in determining whether Officer D'Alto's testimony is credible ( see CPL 60.35). It is also true that the certification provided for the tape of the radio transmissions made on the date of Defendant's arrest specifies that the transmissions commenced at 3:06 a.m. It is also obvious, however, that more than one transmission was being certified, and that the certified tape as offered in evidence has been edited. And because the certification does not specify the exact time of Officer Morales' transmission, the evidence of his reporting the time of the arrest as "0330 hours" is mere bolstering and is thus essentially useless. But unless there has been massive fraud in the preparation of documents and the giving of evidence — and there is indication of none — Defendant's arrest had to have within the two hours before the 5:17 a.m. draw of his blood.
Every piece of evidence before me fixes the time of the "occurrence" — i.e., Officer D'Alto's observation of Defendant behind the wheel of a car with one wheel up on the curb and skid marks in the snow — at 3:00 a.m. Much happened after the occurrence but before the formal arrest: the approach to Defendant's car, the call for back-up, Defendant's getting our of his car, the administration of the horizontal gaze nystagmus test, the administration of the one-leg-stand test, the administration of the nine-step-walk-and-turn test, and the administration of the portable machine breath test, all of which had to take at least the fifteen minutes, or so, that led up to the inquiry that produced the "approximately" 3:15 a.m. statement I have hereby suppressed. I have no doubt that Defendant made that statement before he was formally placed under arrest. And it is likely that it took two more minutes for the formalities and to get Defendant in handcuffs. I thus find that the 5:17 a.m. draw of Defendant's blood — delayed here not because of police falderal but because of the lack of cooperation of the attending physician ( see People v. Victory, supra) — occurred within two hours of Defendant's arrest. Moreover, I am not dissuaded from this conclusion by Defendant's contention that, since Detective Dacres received the call for the blood kit at 3:30 a.m., then the arrest of Defendant had have been at 3:00 a.m.
Officer D'Alto testified that "as soon as" the police car began to move from the arrest site, Defendant complained of chest pains, and that he (Officer D'Alto) immediately instructed Officer Morales to head to the hospital, which, according to the testimony, was only "a minute or two" away. Although the record is silent about when Officer D'Alto called for the blood kit, since, as the People pointed out on closing argument, police knew almost immediately upon placing Defendant in the police car that they would be heading to the hospital instead of to Central Testing, and since, as the People also pointed out, it is not routine to remove an "Intox-a-lyzer" machine from Central Testing to use at e.g., a hospital site, it is reasonable to infer that Officer D'Alto made the call for the blood kit immediately upon determining that any test of Defendant's blood alcohol content would be via drawn blood, at the hospital, and that he thus made the call for the blood kit within minutes of the arrest, i.e. at or shortly before 3:30 a.m. While greater factual detail from the People's witnesses would have been helpful, because, as noted above, all evidence establishes that time of the occurrence is 3:00 a.m., the time of the formal arrest had to have been 3:17 a.m. or later. I therefore decline to suppress the results of the test of Defendant's blood, drawn at 5:17 a.m. ( see People v. Zawacki, supra).
This constitutes the decision and order of the court.
So Ordered.