Opinion
CR-00060-17
06-17-2017
The People of the State of New York v. David C. Strauser, III, Defendant.
CHAD BROWN, ESQ. Fulton County District Attorney County Office Building 223 West Main Street Johnstown, NY 12095 CHRISTOPHER STANYON, ESQ. Assistant District Attorney MICHAEL SMRTIC, ESQ. 289 North Main Street Gloversville, New York 12078
CHAD BROWN, ESQ. Fulton County District Attorney County Office Building 223 West Main Street Johnstown, NY 12095 CHRISTOPHER STANYON, ESQ. Assistant District Attorney MICHAEL SMRTIC, ESQ. 289 North Main Street Gloversville, New York 12078 Traci DiMezza, J.
On January 14, 2017, the Defendant, David C. Strauser, III, was charged with the crime of Driving While Intoxicated, in violation of Vehicle & Traffic Law §1192(3), an unclassified misdemeanor, and Failure to use a Designated Lane, in violation of Vehicle & Traffic Law §11289-c, an infraction.
After a non-jury trial held on May 12, 2017, the following testimony was offered into evidence:
On January 14, 2017, at approximately 2:10 pm, Officer Chad Buddles was on routine patrol when he received a report of a multiple vehicle accident at the intersection of Park Street, and Forest Street, in the City of Gloversville. Officer Buddles, responding to the scene, observed a Chevy Blazer, with heavy front end damage, parked in the driveway of 48 Forest Street. While at the scene, Buddles determined that the Chevy Blazer had struck several parked vehicles, causing a chain reaction resulting in damage to a total of five (5) vehicles, as well as property damage to the home located at 48 Forest Street.
Chevy Blazer; Chevy pickup; Maxima; Kia; Malibu.
Officer Buddles, approaching the driver's side window of the Chevy Blazer, observed the Defendant, seated behind the wheel. The Officer inquired with Defendant regarding the crash, to which Defendant replied that he "had been returning home from his girlfriend's house, and the last thing he remembers was turning off Fremont Street." Officer Buddles testified that Fremont Street is located approximately one (1) block away from the intersection of Forest and Pine Streets.
As the conversation between Defendant and police continued, Defendant remained seated inside the vehicle. Officer Buddles then asked the Defendant if he was injured, to which the Defendant replied, "No, I don't think so."
While speaking with the Defendant, Buddles testified that he observed Defendant's slurred speech, glassy, bloodshot eyes, and recognized the odor of alcoholic beverage. A police officer for 14 years, and trained in DWI detection and recognition, Officer Buddles asked the Defendant if he had been drinking. Defendant admitted to consuming "approximately five to six beers prior to the incident." Upon further inquiry, Defendant admitted to consuming the alcohol "earlier in the day" with his last beer having been consumed "approximately one half hour prior to the incident."
Soon after Buddles spoke with Defendant, an ambulance arrived on scene. Defendant was escorted to the ambulance, where he spoke directly with emergency personnel. Standing by to observe, Officer Buddles testified that consistent with the Defendant's earlier statements, Defendant told medical personnel that he was "not injured" and "did not require medical treatment."
Rightfully suspect that the Defendant had been driving while under the influence of alcohol, Officer Buddles asked the Defendant to submit to a pre-screen of his breath. Defendant readily consented, the test was administered, and the results, according to the Officer, indicated the presence of alcohol in Defendant's breath.
Breath screening devices have been determined reliable for detecting the presence of alcohol in a person's breath, but they have not been found to be reliable for determining the actual blood alcohol concentration. See, Carrieri, Practice Commentaries, McKinney's Cons. Laws of NY Book 62A, VTL §1194 at 91.
After administering the breath screen, Defendant was transported, by ambulance, to Nathan Littauer Hospital. Officer Buddles, who followed the ambulance and arrived at the same time, observed the Defendant exit the ambulance, and walk into the hospital, without assistance. Officer Buddles thereafter accompanied Defendant to a treatment room, where he observed the Defendant for the next 45 to 60 minutes. Buddles testified that during this period of observation, Defendant appeared and behaved as though he was "sightly intoxicated."
While waiting to be seen by medical staff, Officer Buddles again made inquiry of the Defendant, who consistently denied having any recollection of the accident, or anything that had happened "after he turned off Fremont Street." Based upon his earlier observations, and the result from the pre-screen, Officer Buddles asked if the Defendant would submit to a series of field sobriety tests, to which Defendant agreed.
The first test that Buddles administered to the Defendant was the Horizontal Gaze Nystagmus (HGN) test. Holding a pen approximately six (6) inches away from Defendant's face, Officer Buddles instructed the Defendant to sit upright on the bed, hold his head straight, and follow the officer's pen, with his eyes, as it moved from left to right. Officer Buddles testified that the Defendant exhibited six (6) clues, or signs, of impairment, namely: lack of smooth pursuit; nystagmus at maximum deviation; and nystagmus prior to the onset of 45 degrees, in both eyes.
Officer Buddles then administered two (2) non-standardized field sobriety tests to the Defendant, namely the "finger count test" and the "alphabet test." According to the Officer, Defendant passed the finger count test, but failed the alphabet test, after twice being unable to recite the alphabet starting from the letter "G"and ending at the letter "Z."
Officer Buddles then asked Defendant to submit to chemical test of his blood, to which Defendant consented. Officer Buddles, using a "cue card" read the standard Miranda and DWI refusal warnings to the Defendant, who acknowledged he understood, signed a consent for the blood sample, and agreed to continue speaking with police, without an attorney.
After a delay of approximately 15-20 minutes, a nurse arrived to collect Defendant's sample, at which time Defendant withdrew his consent, stating that he didn't want "anyone touching him." Buddles once again provided the Defendant with the standard DWI refusal warnings, to which Defendant repeated that he did not want "anyone to touch him". When Officer Buddles once again explained that the failure to submit to a blood draw would constitute a refusal, Defendant replied that he "wasn't refusing" but that he wanted to submit to a chemical test of his breath, repeating again, that he didn't want "anyone touching him." Officer Buddles informed the Defendant that he would not be permitted to submit to a breathalyzer, after his refusal.
Shortly thereafter, Defendant asked to be released from the hospital, without treatment, at which time he was placed under arrest for driving while intoxicated and transported to the station for processing.
1. Lesser Included Offense
Before trial, the People moved to submit the lesser included offense of "Driving While Ability Impaired" (VTL §1192[1]). Defendant objects, arguing that the People should have filed an information, charging that offense, prior to trial, and further argues that Defendant would be entitled to additional notice under CPL §710.30.
CPL §360.50(1) reads in part "...if the trial evidence is not legally sufficient to establish a misdemeanor ...but is legally sufficient to establish a lesser included offense, the court may submit such lesser included offense, and upon the people's request, must do so." In fact, the failure of the Court to consider the lesser included charge of DWAI, after a DWI bench trial, was found to be reversible error. See, People v. Maharay, 89 NY2d 997 [1997].
The Court will, therefore, consider the lesser included offense of "Driving While Ability Impaired (VTL §1192[1]).
The Court finds Defendant's remaining arguments, in this respect, to be without merit.
2. Admissibility of Pre-Screen
Without question, the use of breath screening tests on a DWI suspect constitutes a "scientific test" for purposes of CPL §240.20. Therefore, the test results, as well as records related to that specific device's calibration, inspection, maintenance and repair, are all subject to discovery.
There is no record, however, of Defendant making such a demand upon the People, and despite Defendant's argument, this material does not have to be voluntarily disclosed, without a proper demand. See, generally §CPL 240.20.
Regardless, in order for scientific evidence to be admissible at the time of trial, the test itself, as well as the procedure of administering the test, must be generally accepted as reliable within the scientific community. This requires expert testimony as to the nature, function or scientific principals underlying the test. See, People v. Thomas, 121 AD2d 73; see also, People v. McDonald 227 AD2d 672.
A review of the trial record illustrates insufficient evidence regarding the scientific reliability of the pre-screen test, as well as insufficient evidence that the specific device used to screen Defendant's breath was properly calibrated, inspected or maintained.
Therefore, all testimony related to the administration of the pre-screen breath test, including evidence of the results, shall be stricken from the record, and not considered by this Court, in it's verdict.
3. Admissibility of the Horizontal Gaze Nystagmus Test
The trial testimony revealed that Officer Buddles administered the Horizontal Gaze Nystagmus (HGN) test, to the Defendant, prior to his arrest.
The HGN is one of three (3) validated, standardized, field sobriety tests. The validity of these standardized tests depends on the them being administered in a specific way, and in the exact manner as forth in the Standardized Field Sobriety Test (SFST) Manual (See, West Key Number Digest, Automobiles, 411).
Because the HGN test deals with "involuntary physiological movements of the eye" and how these movements could be affected by the consumption of alcohol and drugs, the test is considered "scientific in nature."(See, People v. Wernick, 89 NY2d 111; People v. Middleton, 54 NY2d 42; See also Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]. The HGN test, however, has not been conclusively determined to be generally accepted or reliable, and Appellate Courts in New York State consider it reversible error to allow testimony regarding the HGN without laying the proper foundation. See, People v. Heidelmark, 214 A,D,2d 767 [3rd Dept. 1995].
In the case at bar, the trial record is absent a sufficient or proper foundation for the admissibility of the HGN test, or the test results. The only witness called by the People lacked the qualifications necessary to testify regarding the nature, function, or scientific principals underlying the test, and questions remain as to whether the test was administered in the proper, standardized way.
At the time of trial, the officer candidly admitted that he held the stimuli six (6) inches away from the Defendant's face, instead of the required 12-15 inches. The Officer also testified with uncertainty regarding the speed which the stimuli should be moved across a suspect's field of vision. When looking for signs of smooth pursuit, the NHTSA requires that the stimuli be moved at a speed that requires approximately two seconds to bring the eye from center position to maximum deviation. When looking for Nystagmus prior to the onset of 45 degrees, the NHTSA Manual requires that the stimuli be moved at a speed that requires approximately four (4) seconds to move the stimuli from shoulder to shoulder. Contrary to Defendant's argument, there is no requirement that the Defendant be standing when the test is administered. see NHTSA Manual, at VIII-7-14-VIII-18.
Therefore, any an all testimony regarding the administration of the HGN test, as well as Defendant's performance, shall be stricken from the record, and not considered by this Court, in it's verdict.
4. Admissibility of non-standardized field sobriety tests
Prior to Defendant's arrest for DWI, Officer Buddles administered two (2) non-standardized field sobriety tests to the Defendant, namely, the "alphabet test" and the "finger count test".
Field sobriety tests, used by police to detect impairment, are designed to test a person's physical coordination, reaction time, and mental functioning. Non-standardized field sobriety tests, based primarily upon the subjective opinion of each individual officer, are generally considered less reliable than the validated, standardized tests.
However, to the extent that non-standardized field sobriety tests are not truly "scientific in nature", direct testimony regarding a Defendant's performance, observations of the officer who administered them, as well as the officer's subjective opinion regarding impairment, are admissible, at trial, without laying a foundation for their "acceptance in the scientific community." See People v. DiNonno, 171 Misc 2d 225 [Appellate Term, 2d Dept. 1997]; see also People v. DeRojas, 196 Misc 2d 171 [App. Term, 2d Dept 2003].
This Court will, therefore, permit and consider the testimony of Officer Buddles as it relates to the administration of both the "finger count test" and the "alphabet test", as well as testimony regarding Defendant's performance. 4. Sufficiency of §710.30 Notice
Defendant seeks preclusion of statements allegedly made by the Defendant, to Officer Buddles, arguing that they were not properly noticed under CPL §710.30.
At the time of trial, Buddles testified that Defendant admitted to "consuming approximately 5-6 beers earlier in the day"that he had "been driving home from his girlfriend's house on 5th avenue" and the "last thing he remembers was turning off Fremont Street." Officer Buddles also testified that Defendant had admitted to consuming "one (1) beer approximately one half (½) hour prior to the incident."
The People's §710.30 notice, dated January 14, 2017, includes a recitation of Defendant's statements admitting to "driving from a 'friend's house'" and consuming "five beers".
The Defendant contends that the Officer's trial testimony goes beyond the scope of the summaries provided, and consists of statements that are either different, or not specified, within the notice.
The provisions of CPL §710.30 were enacted to provide Defendant's with adequate time to prepare a defense and to challenge the voluntariness of a confession or an admission. See, People v. Chase, 85 NY2d 493. It is well settled that the notice provisions of CPL §710.30 do not require a verbatim recitation of every single statement made by a Defendant to law enforcement. See, People v. Bennett, 56 NY2d 837; See also, People v. Laporte, 184 AD2d 803; See also, People v. Garrow, 151 AD2d 877. The People are only required to provide notice that is "sufficient to apprize the Defendant of the time and place the statements were made, as well as their sum and substance." Bennett, Id. @ 838.
After comparing Officer Buddle's trial testimony to the People's notice, there is simply no merit to Defendant's argument that the provisions of CPL §710.30 have been violated. While the trial testimony did, in fact, vary from the noticed statements, the deviations are immaterial because each of Defendant's statements revealed the same, or similar, inculpatory admissions. See, People v. Reid, 215 A.D. 597 [1995]
Defendant's motion to preclude the officer's testimony regarding Defendant's statements to law enforcement is hereby denied.
5. Admissibility of statements made for purposes of medical treatment
At the time of trial, Officer Buddles testified that Defendant repeatedly stated that he was "not injured" and that he "did not require medical treatment." After some encouragement, however, the Defendant, accompanied by Officer Buddles, took a seat inside the ambulance to speak with emergency medical personnel. Officer Buddles, standing by the ambulance, and conspicuously present, heard the Defendant tell emergency medical technicians that he was "not injured" and "did not require medical treatment."
Defendant argues that these statements, made to medical personnel, are automatically privileged. This Court does not agree.
A privileged communication under CPLR §4504(a), must be asserted and affirmatively established by illustrating: 1.) the existence of a physician-patient relationship; 2.) the information was acquired while attending the patient in a professional capacity; 3.) the information was necessary for treatment, and; 4.) the patient intended the communication to be kept confidential. The proponent of the privilege bears the burden of establishing it's applicability. See, Williams by Williams v. Roosevelt Hosp. 66 NY2d 391 [1985].
See, State v. General Elec. Co., 201 AD2d 802 [3rd Dept. 1994].
Contrary to Defendant's argument, the privilege does not simply apply whenever it's asserted. There must be a requisite showing, and that burden rests with the proponent of the privilege.
First, Emergency Medical technicians, while not specifically listed in CPLR §4504, may qualify under the privilege, if it can be shown that they are acting as an agent for a physician, for whom the information is being collected, and to whom the information will be conveyed. See, People v. Brito, 26 Misc 3d [Sup. 2010]. This Court finds absolutely no evidence in the record, that the EMT's who responded to the scene, were acting as agents for a physician. This Court is further unpersuaded that the statements sought to be privileged, were ever conveyed to a physician, and there is no proof that the Defendant was ever seen by a physician, or that the patient-physician relationship was ever truly consummated. This court will not presume facts into evidence based upon arguments of counsel.
Second, because this Court finds that Defendant's statements to medical personnel were for the primary purpose of declining medical treatment, there remains insufficient proof that the communications were "medically relevant" or "necessary for treatment".
Finally, there is simply no evidence that the statements were induced or provoked by police, or that the Defendant intended his communications to be privileged, or that he made them with an expectation of confidentiality. Officer Buddle's conspicuous presence while Defendant spoke with emergency personnel would waive any privilege the Defendant might assert.
See, People v. Haris, 57 N.Y.S.2d 335 (1982); See People v. River, 56 NY2d 476; See People v. Jones (N.Y.App. Div. 1991) 169 AD2d 986 [Defendant's statements to nurse was ruled admissible because it was overheard by police who did not induce or provoke the communication]; See, People v. Decina, 2 NY2d 133 [the patient's reasonable expectations are a factor in determining the existence of a physician-patient privilege]; See, People v. Ackerson, 149 Misc 2d 882 (County Ct. 1991) [emergency technicians were not gathering information for diagnosis or treatment by physician, but rather, they were performing first aid]; See, Rodriquez v. New York City Transit Authority, 151 Misc 2d 1027, and In Re. Marie H., 25 AD3d 704 92nd Dept. 2006) [physician-patient privilege did not exist between physician member of crisis team, and individual examined by such physician for purpose of evaluating need for emergency medical assistance because physician provided no treatment, and application of privilege would thwart legislative scheme]; See, People v. Sanders (NY Sup. Ct. 1996) 169 Misc 2d 813: See also, People v. Hartle, 122 AD3d 1290, 995 N.Y.S.2d 424 (4th Dep't 2014), leave to appeal denied, 25 NY3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 (2015) [hospital professional was required to disclose statements made by defendant during medical examination because presence of police investigator destroyed confidentiality; court rejected defendant's claim that he was unable to ensure privacy because he was under arrest: defendant at no time indicated an interest in confidentiality as, for example, by requesting that he be allowed to speak privately with the medical professional)].
Defendant's remaining contentions, as they relate to hearsay, and the best evidence rule, are of no merit. 5. Two-Hour Rule, Refusal Evidence, and Consciousness of Guilt
The Two -Hour Rule
VTL §1194(2)(a) provides that any person who operates a motor vehicle in New York State shall be deemed to have given consent to a chemical test, provided such test is administered by, or at the direction of a police officer, having reasonable grounds to believe such person to have operated in violation of VTL §1192.
There is a split among the Appellate Divisions as to whether the two-hour rule applies in cases where a motorist consents to a chemical test. Expounded most notably by the Second Department in People v. Mills (124 AD2d 600 [1986]), that court held that the two-hour rule applies only in situations where the motorist is incapable of consent. The Mills rationale was later extended in People v. McGrath (135 AD2d 60 [2nd Dept. 1988]), which held that the two-hour rule does not apply to court ordered chemical tests collected from an incapacitated driver.
Different panels in the Third Department have reached opposite results. In People v. Keane (76 AD2d 963 [1980]), the appellate panel held that chemical evidence collected after two-hours of a defendant's arrest was not admissible into evidence. Ten years later, a different panel, following the Second Department's holding in Mills, unanimously ruled that the People have no duty to prove that the test was administered within two hours of a defendant's arrest. This holding was followed once again, in People v. Abel (166 AD2d 841[3rd. Dept. 1990]), which ruled that the two-hour time limit is confined to cases where a motorist is incapable of consent.
The legislative history of the two-hour rule is important within the context of this analysis. In 1970, the legislature moved the two-hour time limit from the evidentiary statute of VTL §70(5), to the "implied consent" statute of VTL §1194(2)(a)(1). This move seemed to recognize that the two-hour rule was not evidentiary in nature, but rather procedural. Applying the language of rule of §70(5), now embodied in today's implied consent statute, tends to illustrates an evidentiary flaw.
A trial court, not inclined to follow the interpretation of Mills, would apply the two-hour rule to prohibit the introduction of chemical evidence taken from a defendant, arrested immediately at the scene, if the test was not administered within two hours of arrest. Yet, that very same statute would permit the introduction of chemical evidence, on that very same Defendant, if the arrest was delayed by two hours, so long as the test was administered within two hours of arrest. In the first scenario, chemical evidence obtained within two hours and one minute would be inadmissible, but in the second scenario, chemical evidence collected within three hours and 59 minutes, would be admissible.
If the level of intoxication at the time of operation is a determinative issue, it would naturally follow that the probative value of a chemical test diminishes, with each passing minute, after the defendant's initial stop. It would be hard for this Court to interpret the two-hour time limit as an evidentiary rule, rather than a procedural one, when it's application could result in such inconsistent evidentiary rulings that appear to ignore how the lapse of time effects the probative value of the chemical test.
Logic and precedent must prevail, and this Court finds itself constrained to follow the most recent Third Department rulings in Keane and Able.
Therefore, VTL §1194 shall be interpreted by this Court as providing authority for police to obtain chemical evidence from an incapacitated driver, or a driver incapable of giving consent, provided such evidence is collected within two hours from the time of arrest or a pre-screen. In cases where this window has expired, and the driver is still incapable of giving consent, the police must obtain a court order.
In cases where a chemical sample must be obtained by court order, VTL §1194 shall be interpreted without any implied time restriction.
In cases involving collection of a chemical sample by express consent, VTL §1194 shall be interpreted as providing authority, but not a mandate, for police to request and collect a chemical sample from a Defendant, capable of consent, even after the lapse of two hours from the time of arrest or a pre-screen.
The application of this holding, to the facts of this case, however, is unnecessary based upon the rulings that follow herein.
Refusal
After administering three field sobriety tests, Officer Buddles asked the Defendant to submit to a chemical sample of his blood to determine the blood-alcohol content. Defendant consented and was thereafter provided with the standard DWI refusal warnings. Defendant signed a consent form, and waited approximately 15-20 minutes for a nurse to arrive.
When it came time to provide the sample, however, the Defendant revoked his consent, stating that he didn't want "anyone touching him." Buddles provided the Defendant with the standard DWI refusal warnings again, to which Defendant repeated that he did not want "anyone to touch him". When Officer Buddles explained that the failure to submit to a blood test would constitute a refusal, Defendant replied that he "wasn't refusing" insisting, instead, that he be permitted to submit to a breathalyzer, back at the station. Officer Buddles refused and noted Defendant's refusal at 3:25 pm.
Defendant argued at trial that his right to submit to a chemical test was improperly foreclosed before the expiration of two-hours, and that his willingness to submit to a breathalyzer negates his refusal. The Defendant would interpret VTL §1194(2)(a)(1) as conferring upon motorists, an unequivocal right to submit to their chosen method of testing, even after an initial refusal, so long as their consent is conveyed to the police within two hours of their arrest.
This Court does not agree, and finds no question that the Defendant's conduct constituted a refusal. Initially, the Defendant consented to a blood draw, and signed a consent form. When it came time to provide the sample, however, he withdrew his consent. When advised that his unwillingness would constitute a refusal, Defendant conditioned his consent on returning to the station to provide a breath sample. The arresting officer, having no control over when the Defendant would be treated and released, properly determined Defendant's conduct to be a refusal, and foreclosed his opportunity to provide a chemical sample.
It is of little persuasive value to this Court that the Defendant conditioned his consent on the administration of a certain type of test, or that he vacillated between consent and refusal. See, Gilman v. Passidomo, 109 AD2d 1082 (4th Dept. 1985) [a motorist may not choose the type of test to which he will submit. The type of test to be administered is within the discretion of the officer at the scene and the motorist has no constitutional right to condition his consent upon his choice of test]; See also, Nicol v. Grant, 117 AD2d 940 (3rd Dept. 1986) [motorist who stated she would not submit to a test had refused the test within the meaning of the implied consent law, notwithstanding that the motorist later recanted her refusal]; see also O'Brien v. Melton, 61 AD2d 1091 (1978) [consent by a motorist after a first refusal was considered a refusal]; See also, Beck v. Tofany, 70 Misc. 70 Misc 2d 273 (1972) [A motorist's refusal to accompany the police officer to a specific hospital to take a chemical test to determine blood-alcohol content was considered a refusal to take the test].
It is further irrelevant to this Court that the Officer concluded that Defendant had "refused" before the lapse of two hours from the time of Defendant's arrest. This Court's interpretation of VLT §1194 does not confer upon motorist's, an irrevocable right to submit to a chemical test at their whim, nor does it impose a mandate upon police to administer a chemical test, after a refusal.
Consciousness of guilt
Because motorists possess no constitutional right to refuse a chemical test, it is widely held that the People may introduce a Defendant's refusal, into evidence, and VLT §1194(2)(f) sanctions the use of a Defendant's refusal to take a chemical test as evidence of guilt. See, People v. Smith, 79 Misc 2d 172. This evidence, however, may only be received if the Defendant is warned of the consequences of a refusal, and continues to refuse. There is no mention or reference to a two hour time frame within this section of the statute. See, People v. Morales (N.Y.Crim. Ct. 1994) 161 Misc 2d 128, 130 .
Since this Court has already determined that Defendant's actions constituted a refusal, and further finds that the Defendant's refusal persisted after he was properly warned about the consequences, this Court will permit and consider evidence of Defendant's refusal as consciousness of guilt.
Verdict
Upon review of the trial testimony, the Court herein renders the following verdict:
As to the charge of VTL §1192[3], "Driving While Intoxicated" this Court finds the Defendant, David C. Strauser, III, NOT GUILTY;
As to the charge of VTL §1192[1], "Driving While Ability Impaired", this Court finds the Defendant, David C. Strauser, III, GUILTY;
As to the charge of VTL §1128-c, "Failure to use designated lane", this Court finds the Defendant NOT GUILTY.
The foregoing shall constitute the Decision and Verdict of this Court. Enter: Gloversville, New York Dated: June 17, 2017 Hon. Traci DiMezza J.C.C.