Opinion
2004QN014464.
Decided October 4, 2004.
Upon receiving the record and the recommended Findings of Fact and Conclusions of Law, this Court adopts the Judicial Hearing Officer's Findings of Facts, and Conclusions of Law as to the findings of probable cause to arrest the defendant, but rejects the Findings of Fact and Conclusions of Law as to the defendant's motion to suppress his refusal to submit to an intoxilyzer test. The Findings of Fact are modified as follows:
FINDINGS OF FACT
On March 21, 2004, Police Officer Montgomery Summa observed the defendant traveling on Jamaica Avenue, operating a white Honda in an erratic manner. When the defendant was pulled over, the P.O. noticed he had a strong odor of alcoholic beverage on his breath, bloodshot eyes and slurred speech. At 10:55 p.m., the P.O arrested the defendant for DWI and removed him to the 112 Precinct.
At the 112 Precinct, the defendant was offered an intoxilyzer test and refused to take it. A tape was played for the defendant warning him of the consequences of his refusal in Spanish. This tape was played twice for the defendant. After viewing the tape, the defendant refused twice to take the test. The highway technician marked the time of the refusal as 1:35 a.m., on March 22, 2004 (People's Exhibit No. 1).
The Conclusions of Law are modified as follows:
CONCLUSIONS OF LAW
The defendant moved to suppress admission of his refusal to submit to an intoxilyzer exam because it was not offered to him within two hours of his arrest.
While this Court acknowledges that the test was offered two hours and thirty minutes after the defendant's arrest, that fact is not dispositive of this issue. Evidence of a refusal to take a chemical test to determine blood alcohol content is admissible, notwithstanding that the test was offered over two hours after the arrest. People v. Ward, 176 Misc 2d 398 (1998). Although VTL Sec. 1194 (2)(a)(1) provides that the test must be administered within two hours of the arrest, recent cases have progressively narrowed the application of the two-hour rule to only apply in cases where the operator is incapable of giving consent. The rationale is, that if evidence of the chemical results expressly consented to by a defendant and administered beyond the two hours limit is competent ( People v. Atkins, 85 NY2d 1007), then evidence of a refusal to take such a test obtained beyond the two-hour rule, must similarly be competent ( Ward, supra). A contrary conclusion would permit an operator of a vehicle to refuse a properly requested chemical test without consequence.
People v. Morales, 161 Misc 2d 128 (1994). Accordingly, the defendant's motion to suppress evidence of his refusal to take an intoxilyzer exam on the grounds that the test was offered over two hours after the arrest is denied.
The defendant also contends that his refusal to submit to an intoxilyzer test should be suppressed because there is no evidence that the Spanish videotaped warnings the police played for the defendant were actually the required warnings since there was no translation of the Spanish tape for the Court. The Court rejects this argument.
After viewing the actual tape, this Court finds that the police followed standard operating procedures where they have a Spanish-speaking defendant. They showed this defendant a Spanish language tape advising of the consequences of his refusal. The defendant appears to understand the tape. He gives appropriate answers in response to the tape. As such, the tape is presumed valid.
The People have met their burden in this situation. The police followed standard procedure where the defendant speaks Spanish. It is clear from the tape that the defendant understood the consequences of his refusal. Therefore, the defendant's motion to suppress evidence of his refusal is denied.
This opinion constitutes the decision and order of the Court.