The defendant is charged with Driving While Intoxicated in violation of VTL 1192(3), Refusing to Submit to a Field Breath Test in violation of VTL 1194(2)(a), and Failing to Maintain Lane in violation of VTL 1128(a). On August 24, 2007, a Dunaway, Huntley and refusal hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including evidence of statements allegedly made by the defendant and evidence of the defendant's refusal to submit to a breath test. The sole witness at the hearing was Police Officer Glen Gerrits, 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 Gerrits has been a police officer with the Suffolk County Police Department for 14 years, and is assigned to the Fourth Precinct. He has made 10 to 20 DWI arrests. On September 22, 2006, Officer Gerrits was on patrol in a marked patrol car, working a 9:00 p.m. to 7:00 a.m. tour of duty. At approximately 5:50 a.m. on that date, the officer responded to a radio call, made by an anonymous person calling from Arkies Bakers, that a possible intoxicated male was driving a gray Ford with the license plate AIJ-2301. As the officer approached the strip mall where the call had originated from, he observed a gray Ford SUV, bearing the license plate ALJ-2301, as it exited the parking lot of the mall and headed northbound on Route 111 in the Town of [*2]Smithtown, Suffolk County, New York.

Officer Gerrits made a U-turn and followed the vehicle, believing it to be the subject of the radio call based on the close similarity in the vehicle description. The officer followed the vehicle for approximately two and a half miles, and observed that it crossed over the double yellow line twice. After a third time, the officer activated his emergency lights and pulled the vehicle over to the side of the road.

Officer Gerrits approached the vehicle and asked the driver, whom he identified as the defendant, for his license, registration and proof of insurance. As the defendant produced the requested documents, the officer noticed that a strong odor of alcohol was coming from the vehicle and from the defendant's breath, the defendant's eyes were bloodshot and glassy and his speech was slurred. The officer asked the defendant if he'd had anything to drink, and the defendant answered, "no, I didn't." The officer then asked the defendant to step out of his vehicle, and observed that the defendant was very unsteady on his feet, had trouble maintaining his balance and had to lean against his vehicle for support. When asked to perform field sobriety tests the defendant said, "I don't want to take any tests."

Officer Gerrits determined that the defendant was intoxicated and placed him under arrest at 6:07 a.m. While the defendant was sitting in the patrol car, the officer asked him for his Social Security number. The defendant responded, "I think I need a lawyer." At that point, the officer stopped questioning the defendant and transported him to the Fourth Precinct.

At the precinct, after processing the defendant, Officer Gerrits read the "chemical test request" portion of the Alcohol/Drug Influence Report (AIR) to the defendant, including the refusal warnings (People's Exhibit 1). At 6:30 a.m., the defendant initialed the refusal portion of the AIR form, wrote the word "refuse" and signed the form. The officer read the defendant the chemical test request and refusal warnings again at 6:40 a.m., and the defendant again wrote the word "refuse" and signed the form.

At 6:44 a.m., the defendant was given the opportunity to make a telephone call, and called his father. After the telephone call, the officer read the defendant the request and warnings a third time. At 7:05 a.m., the defendant again refused to take the test and signed his name on the form. At no time did [*3]the defendant indicate that he didn't understand the request or warnings, nor did he say that he wished to speak to an attorney regarding the requests that he submit to a breath test.

After the defendant's third refusal, Officer Gerrits read the Miranda warnings portion of the form to the defendant and the questions printed in that portion of the form (People's Exhibit 1). When asked if he wished to contact a lawyer, the defendant stated, "well, I hope my father does." The admissibility of this statement is not at issue in this hearing. The defendant did not specifically ask to call an attorney, nor did he ask for a telephone book or assistance in contacting an attorney.

A traffic stop constitutes a limited seizure of the person of each occupant of the vehicle which, to be constitutional, must be justified at its inception. People v. Banks, 85 NY2d 558, 562 (1995), cert. den. 516 U.S. 868 (1995). Pretext stops are permitted as long as the law enforcement agent had probable cause to believe that a traffic infraction has occurred. Officer Gerrits had a lawful basis for stopping the defendant's vehicle, after observing that it repeatedly crossed over the double yellow line in violation of the Vehicle and Traffic Law. People v. Robinson, 97 NY2d 341 (2001); People v. Irizarry, 282 AD2d 483 (2d Dept. 2001), lv. den. 97 NY2d 729 (2002); VTL 1128(a), 1160(a). This is so even if the true motivation for the stop was to investigate the radio report of a possibly intoxicated driver. See, People v. Robinson, supra ; People v. Sluszka, 15 AD3d 421 (2d Dept. 2005); see also, People v. DeRojas, 196 Misc 2d 171, 173 (App. Term, 9th & 10th Jud. Dists. 2003); lv. den. 100 NY2d 593 (2003); People v. Duffy, 2003 NY Slip Op 50861U (App. Term, 9th & 10th Jud. Dists. 2003).

Probable cause for a driving while intoxicated arrest exists if the arresting officer can demonstrate reasonable grounds to believe the defendant had been driving in violation of VTL 1192. See, People v. Kowalski, 291 AD2d 669 (3rd Dept.

2002); People v. Poje, 270 AD2d 649 (3rd Dept. 2000), lv. den. 95 NY2d 802 (2000). The officer's observations of the defendant's failure to maintain his lane while driving, the odor of alcohol emanating from his vehicle and breath, his slurred speech, bloodshot and glassy eyes, and unsteadiness on his feet, were sufficient to provide the officer with reasonable grounds to believe the defendant had been driving in violation of VTL 1192, and provided probable cause for the arrest for Driving While Intoxicated. See, People v. Kowalski, supra ; People v. Lamb, 235 AD2d 829, 830-831 (3rd Dept. 1997); People v. Kalwiss, 6 Misc [*4]3d 129A, 2005 NY Slip Op 50057U (App. Term, 9th & 10th Jud. Dists. 2005); People v. McClaney, 135 AD2d 901 (3rd Dept. 1987); CPL 140.10(1). The Court accordingly finds that the defendant's stop and arrest were based on probable cause, and the evidence obtained as a result thereof is not subject to suppression on that ground.

A defendant who has been temporarily detained pursuant to a routine traffic stop is not in custody for Miranda purposes, and a reasonable initial interrogation during such a stop does not require Miranda warnings. 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). Officer Gerrits's temporary roadside detention of the defendant, after stopping the defendant's vehicle for a traffic infraction, was permissible and non-custodial in nature, and the officer was not required to administer Miranda warnings before conducting his initial roadside investigation. The defendant's statement that he had not been drinking was not obtained by means of coercion or unfairness. The Court accordingly finds that this roadside statement was voluntary and is admissible at trial. See, People v. Mathis, 136 AD2d 746 (2d Dept. 1988), lv. den. 71 NY2d 899 (1988); 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).

A defendant who has been placed under arrest may be asked routine booking questions which are necessary to process him or provide for his physical needs, before Miranda warnings have been administered. People v. Rodney, 85 NY2d 289 (1995); People v. Hester, 161 AD2d 665 (2d Dept. 1990), lv. den. 76 NY2d 858 (1990). The defendant's statement, "I think I need a lawyer," although made in response to a permissible request for his Social Security number, may be construed by a jury as indicative of a consciousness of guilt. A defendant may not be penalized for asserting a basic constitutional right. See, People v. De George, 73 NY2d 614, 618 (1989). The defendant's post-arrest statement, in which he considered asserting his right to counsel, therefore shall not be admitted into evidence at trial.

The defendant's statement indicates that he may have contemplated his right to counsel, but did not actually invoke that right. See, People v. Vega, 225 AD2d 890 (3d Dept. 1996), [*5]lv. den. 88 NY2d 936 (1996). A defendant's statements to the police that maybe he needs an attorney (People v. Davis, 193 AD2d 1142 [4th Dept. 1993]), that he thinks or believes that he wants a lawyer (People v. Lattanzio, 156 AD2d 757 [3rd Dept. 1989], lv. den. 76 NY2d 860 [1990]), or that he should have counsel (People v. Hart, 191 AD2d 991 [4th Dept. 1993], lv. den. 81 NY2d 1014 [1993]), are not sufficiently unequivocal to invoke the right to counsel before undertaking a sobriety test or speaking to the police. The defendant's statement, "I think I need a lawyer," when asked for his Social Security number, similarly was not an unequivocal request for counsel and did not effectively assert his right to counsel. See, People v. Davis, supra ; People v. Lattanzio, supra ; People v. Hart, supra .

A defendant has only a qualified right to consult with a lawyer before deciding whether to consent to a chemical test of his blood, provided he makes a specific request for counsel and no danger of delay is posed. See, People v. Gursey, 22 NY2d 224, 229 (1968); People v. Curkendall, 12 AD3d 710 (3rd Dept. 2004), lv. den. 4 NY3d 743 (2004). The request for counsel must be specific to the decision of whether or not to consent to the chemical test. People v. Vinogradov, 294 AD2d 708 (3rd Dept. 2002); People v. Curkendall, supra . Even where a defendant makes a specific request, there is no absolute right to consult with an attorney before deciding whether to submit to such a test, if the attorney cannot be reached promptly by telephone or otherwise. People v. Vinogradov, supra . The defendant did not request the assistance of counsel when asked to submit to a chemical test of his blood, and Officer Gerrits was not required to inform the defendant that he had a right to consult with an attorney before asking him to submit to such a test (see, People v. Shaw, 72 NY2d 1032 [1988]). The defendant's right to counsel therefore was not violated by the officer's requests that he submit to a chemical test of his blood.

In order for evidence of a defendant's refusal to submit to a chemical test to be admissible at trial, the People must show that the request was made within two hours of the defendant's arrest or within two hours after a breath test (see, VTL 1194[2][a]; People v. Brol, 81 AD2d 739 [4th Dept. 1981]), and 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 requests for the defendant to submit to a chemical test of his blood occurred within two hours of his arrest, in compliance with statutory requirements, and the refusal warnings read from the AIR form similarly [*6]complied with statutory requirements. The defendant did not express confusion or difficulty in understanding the warnings. The People have met their burden of demonstrating that the defendant refused to take the chemical test and that he persisted in his refusal, and evidence of the refusal is admissible at trial. See, VTL 1194(2)(f); see also, People v. Thomas, supra , 46 NY2d at 108; People v. Ratchford, 3 Misc 3d 1109A, 787 NYS2d 680 (Dist. Ct., Suffolk Co. 2004).

This constitutes the decision and order of the Court.

The parties are directed to appear on the New Court Date indicated below.

New Court Date:

Dated:J.D.C.

Decision to be published on line: X yesno

THOMAS J. SPOTA, III, ESQ.

SUFFOLK COUNTY DISTRICT ATTORNEY

For The People

400 Carleton Avenue

Central Islip, NY 11722

BY:LOIS ROWMAN, ESQ.

Assistant District Attorney

TINARI, O'CONNELL, OSBORN & KAUFMAN, LLP

Attorneys for Defendant

320 Carleton Avenue

Central Islip, NY 11722

BY:PATRICK M. O'CONNELL, ESQ.