The defendant is charged with Driving While Intoxicated Per Se in violation of VTL 1192(2), Driving While Intoxicated in violation of VTL 1192(3), and with numerous violations of the Vehicle and Traffic Law. On May 31, 2007, a suppression hearing was held to determine whether evidence of statements allegedly made by the defendant and the results of a breath test administered to the defendant should be suppressed at trial. The parties were given the opportunity to submit written closing statements which have now been received.

The sole witness at the hearing was Police Officer Jean-Marie O'Donnell, a police officer with the Suffolk County Police Department, who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

Officer O'Donnell has been a police officer with the Suffolk County Police Department for 18 years and is assigned to the Fourth Precinct. She has made approximately 40 DWI arrests. On July 2, 2006, Officer O'Donnell was on patrol, working a 7:00 a.m. to 3:00 p.m. tour of duty, but had reported for duty at 3:00 a.m. to earn overtime. At approximately 5:00 a.m. on that date, the officer was driving eastbound on Havemeyer Lane in Commack, Town of Smithtown, County of Suffolk, when she pulled over a 1996 Pontiac. Officer O'Donnell approached the car and asked the [*2]driver, whom she identified as the defendant, for his license and registration. As the defendant produced the requested documents, the officer asked him if he knew why she was pulling him over. The defendant answered, "Because I'm driving like an asshole." When asked where he was coming from, the defendant answered "A buddy's house." The officer then asked the defendant if he had been drinking, and he answered yes, he'd had about six or seven beers. The officer observed that the defendant's speech was slurred and his eyes were bloodshot.

Officer O'Donnell placed the defendant under arrest for Driving While Intoxicated at approximately 5:18 a.m. and transported him to the Fourth Precinct, where they arrived 10 or 15 minutes later. Following their arrival, Officer O'Donnell read the "chemical test request" portion of the Alcohol/Drug Influence Report (AIR) to the defendant (People's Exhibit 1 in evidence). The defendant was asked to initial the form, but did not do so. At 5:48 a.m., Officer O'Donnell asked the defendant to consent to a breath test, and he refused. Officer O'Donnell then read the Miranda warnings portion of the AIR form to the defendant and the questions printed in that portion of the form, recording the defendant's answers in the spaces provided. In response to the first question as to whether he understood each of the rights explained by the officer, the defendant answered "yes." When asked if he wished to contact a lawyer, the defendant also answered "yes." Officer O'Donnell immediately proceeded to the third question on the form, asking the defendant whether he wished to talk to her without a lawyer, and the defendant again answered "yes." The officer recorded the time of the defendant's answers on the AIR form as 5:57 a.m.

Officer O'Donnell next read the bottom portion of the AIR form to the defendant, again recording the defendant's answers on the form. In response to the questions "Have you been drinking alcoholic beverages," "If so, what," and "In what quantities," the defendant answered "Yes," "beer" and "seven," respectively (People's Exhibit 1 in evidence). At 6:00 a.m., after completing the questions at the bottom of the AIR form, Officer O'Donnell asked the defendant if he still wanted to refuse the breath test or if he would consent to take it. This time the defendant agreed to take the test. The defendant attempted to write the word "consent" in the space provided, but dropped the pen and would not pick it up again when asked to sign his name. A technician arrived at the precinct and administered a breath test to the defendant at 6:31 a.m., which registered an insufficient sample. A second test was administered at 6:52 a.m., resulting in a blood alcohol content reading of .22%.

A defendant who has been temporarily detained pursuant to a routine traffic stop is not considered to be in custody for Miranda purposes. See, People v. Myers, 1 AD3d 382, 383 (2d Dept. 2003), lv. den. 1 NY3d 631 (2004); People v. Parris, 26 AD3d 393 (2d Dept. 2006), lv. den. 6 NY3d 851 (2006); People v. Hasenflue, 252 AD2d 829 (3rd Dept. 1998), lv. den. 92 NY2d 982 (1998); see also, People v. Mackenzie, 9 Misc 3d 129A, 2005 NY Slip Op 51535U (App. Term, 9th & 10th Jud. Dists. 2005), lv. den. 5 NY3d 807 (2005). A reasonable initial interrogation during such a stop is therefore held to be merely investigatory and does not require Miranda warnings. See, People v. Mackenzie, supra; see also, People v. Mathis, 136 AD2d 746 (2d Dept. 1988), lv. den. 71 NY2d 899 (1988).

The legality of the stop and arrest is not at issue in this hearing. Officer O'Donnell's temporary roadside detention of the defendant for traffic infractions was permissible and non-custodial in nature, and the officer was not required to administer Miranda warnings before conducting her initial roadside investigation. The defendant's statements that he knew the reason for the stop was "because I'm driving like an asshole," that he was coming from a buddy's house, that he had been drinking, and that he'd had about six or seven beers, were not obtained by means of coercion or unfairness. The Court accordingly finds that these roadside statements were voluntary and are admissible at trial. See, People v. Mathis, supra; see also, People v. Swan, 277 AD2d 1033 (4th Dept. 2000), lv. den. 96 NY2d 788 (2001); People v. Kearney, 288 AD2d 398 (2d Dept. 2001); People v. Noonan, 220 AD2d 811 (3rd Dept. 1995).

Turning to the evidence obtained at the police precinct, once a suspect in custody requests an attorney, he may not be questioned further in the absence of an attorney and all interrogation must cease. See, People v. Cunningham, 49 NY2d 203, 205 (1980); People v. Jones, 21 AD3d 429 (2d Dept. 2005), lv. den. 6 NY3d 755 (2005). An uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked. See, People v. Cunningham, supra. The State constitutional right to counsel is a "cherished principle [citations omitted] worthy of the highest degree of [judicial] vigilance [citation omitted]." People v. Ramos, 99 NY2d 27, 32 (2002); see also, People v. Cunningham, supra, at 207. [*3]

The defendant made a clear and unequivocal request for an attorney when the Miranda warnings were read to him from the AIR form. His affirmative response when asked, immediately thereafter, whether he wished to talk to Officer O'Donnell without a lawyer, did not serve as an effective waiver of his constitutional rights. See, People v. Cunningham, supra. The incriminating statements elicited from the defendant in response to the questions at the bottom of the AIR form therefore were obtained in violation of his right to counsel, and are not admissible into evidence on the People's direct case. The statements may, however, be used for impeachment purposes in the event the defendant chooses to testify, since there is nothing in the record to suggest that the statements were coerced or otherwise involuntary. See, People v. Maerling, 64 NY2d 134 (1984); People v. Sease, 245 AD2d 396 (2d Dept. 1997), lv. den. 91 NY2d 945 (1998).

A defendant has a qualified right to consult with a lawyer before deciding whether to consent to a chemical test, provided he makes a specific request for the assistance of counsel and the request will not unduly delay the proceedings. People v. Shaw, 72 NY2d 1032 (1988); People v. O'Rama, 162 AD2d 727 (2d Dept. 1990), rev'd on other grounds 78 NY2d 270 (1991); People v. Gursey, 22 NY2d 224 (1968); see also, People v. Curkendall, 12 AD3d 710 (3rd Dept. 2004), lv. den. 4 NY3d 743 (2004); People v. Hart, 191 AD2d 991 (4th Dept. 1993). The defendant made a clear request to consult with an attorney at 5:57 a.m., only 39 minutes after his arrest at 5:18 a.m., but was given no opportunity to contact an attorney before the officer's second request that he submit to a chemical test. The officer did not offer the defendant a telephone or even a phone book, nor did she otherwise afford him any opportunity or means to contact an attorney. There was no showing that the defendant's request for counsel would have resulted in significant delay in administering the chemical test. The breath test results therefore were obtained in violation of the defendant's qualified right to counsel, and evidence thereof shall be suppressed at trial. See, People v. Gursey, supra; People v. Shaw, supra.

The People contend that evidence of the defendant's refusal should be admissible if the breath test results are suppressed. Evidence of a defendant's refusal to submit to a chemical test is not admissible at trial unless the People show that the defendant "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that [he] persisted in the refusal." VTL 1194(2)(f); see, People v. Thomas, 46 NY2d 100, 108 (1978). The defendant did not persist in his refusal, but consented to take a breath test in response to the officer's [*4]second request, made only twelve minutes after the initial refusal, and the breath test was then administered to him. The fact that the breath test results are subject to suppression does not change the nature of the defendant's consent to take the test. The defendant's initial refusal therefore shall not be admitted into evidence at trial.

This constitutes the decision and order of the Court.

Dated:J.D.C.