On January 25, 2007 a hearing was conducted pursuant to an order of a Judge of this Court dated October 26, 2006 concerning Dunaway , Huntley and refusal regarding the consequences of refusing a chemical test.

The defendant is charged with operating a motor vehicle under the influence of alcohol or drugs under Section 1192.3 of the New York State Vehicle and Traffic Law and a number of other Vehicle and Traffic Law offenses: 512; 340a; 1180d; 319.1 and 1128a.

Defendant alleges that the police lacked probable cause to arrest, suppression of statement and of the refusal to submit to a chemical test.

The burden of proof at this hearing rests with the prosecution. The People called police officer Thomas Focazio to testify. Defendant did not put on any witnesses.

PROBABLE CAUSE

After listening to the testimony of police officer Thomas Focazio and observing his demeanor, the Court finds his testimony to be credible. According to Officer Focazio defendant was traveling at 75 mph on Indian Head Road in a 40 mph zone and defendant " veered into oncoming traffic". Accepting the police officers testimony, speeding and failure to maintain single lane of traffic warranted the initial vehicle and traffic stop. Defendants glassy and bloodshot eyes ("like pink eye"), coupled with his stumbling, difficulty with balance, alcohol on breath and statement, "I had a couple of beers" do rise to the level of probable cause for arrest.

HUNTLEY

At a hearing to consider suppression of a defendant's statement, the People must prove beyond a reasonable doubt that the statement was voluntary to permit its admission into [*2]evidence before the jury on the people's case in chief People v. Anderson, 69 NY2d 651, 511 N.Y.S.2d 592, 503 N.E.2d 1023(1986)); People v. Witherspoon, 66 NY2d 973, 498 N.Y.S.2d 789, 489 N.E.2d 758 (1985).

Initially, the Court must insure that the statement was not coerced or otherwise produced in an involuntary manner.

We now turn to the question of whether the defendant's Miranda rights first attached, and if so were they maintained.

A defendant in custody must be given Miranda warnings before being interrogated regardless of the severity of the offense. Berkemer v. McCarty, 468 U.S.420, 104 S.CT.3138,3140, 82 L.Ed.2d 317 (1984). Waiver of the rights secured by the Miranda warnings [180 Misc 2d 511] must be knowingly and voluntarily made. People v. Sirno, 76 NY2d 967, 968, 563 N.Y.S.2d730, 565 N.E.2d 479 (1990); People v. Williams, 62 NY2d 285, 288, 476 N.Y.S.2d 788, 465 N.E.2d 327 (1984); C.P.L. § 60.45.

At no time was defendant read his Miranda rights. Defendant's statement, " I had a couple of beers" was however made at the time after the initial traffic stop when defendant was not in custody. Hence, Miranda warnings were not required and therefore defendant's statement is admissible. No other statements after defendant was placed into custody at the scene are admissible.

It is undisputed that Defendant was in custody at the time he was asked to submit to an intoxilizer test and that Miranda warnings were never administered. In South Dakota v. Neville 459 U.S. 553, 564 N. 15, 103 S. Ct. 916, 923 N. 15, 74 L. Ed 2d 748 (1983) the Supreme Court held that in the context of an arrest for driving while intoxicated a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. The Court of Appeals in New York has also held that a refusal to take a blood-test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self incrimination People v. Berg, 99 NY2d 701, 703, 685 N.Y.S. 2d 906, 907, 708 N.E. 2d 979 (1999). It is settled in New York that Miranda warnings are not required in order to admit the results of chemical analysis tests, or a defendant's refusal to take such tests, People v. Thomas, 46 NY2d 584 (1978). Accordingly defendant's statement, "I am not taking the test" is admissible on the People's direct case at time of trial.

This constitutes the decision and order of the Court.

New court date:

Dated______________________________

J. D. C.