The defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §§ 1192 [1], [2], [2-a] and [3}).

Findings of Fact

On June 25, 2008, a Dunaway/Mapp/Huntley hearing was held before me. The People called one witness: Police Officer Virgilio Bencosme. The defendant testified on his own behalf. The issue of credibility is discussed herein.

On July 7, 2008, at about 7 a.m., Police Officer Virgilio Bencosme of the 40th Precinct was on routine patrol with his partner in a marked police car in the area of 138th Street and 3rd Avenue in the Bronx when he observed a motorist, subsequently identified as the defendant, talking on his cell phone. Officer Bencosme activated the lights and siren on his vehicle and pulled the defendant over to issue him a summons. Officer Bencosme approached the driver's side of the defendant's vehicle and asked him for his license and registration. As the defendant exited his vehicle, Officer Bencosme observed that he had bloodshot eyes, smelled of alcohol, and was unsteady on this feet. Based upon these observations, Officer Bencosme placed the [*2]defendant under arrest for driving while under the influence of alcohol.^[FN1] The defendant then stated the following: "What are you arresting me for? I don't drink."The defendant was transported to the precinct, where he was asked to take a breathalyzer test and to perform coordination tests. A video reflecting these events was played during the hearing and introduced into evidence. The video reflects that while the defendant asked for an attorney twice before taking the breathalyzer test, on two separate occasions, he agreed to take the breathalyzer test. The breathalyzer test administered to the defendant yielded a result of .267.^[FN2] The video also reflects that the defendant asked for an attorney once before taking the coordination tests, but that he subsequently agreed to take the coordination tests, stating: "I don't need a lawyer."

The defendant testified that he did not consume any alcohol on the date of the incident and that he was sitting in the car with the motor off when the officer approached.In light of the results of the breathalyzer administered to defendant after his arrest, the defendant's testimony that he did not consume any alcohol is unworthy of belief.

Conclusions of Law

The defendant argues that there was no probable cause to arrest him for operating a motor vehicle while intoxicated because his car was not running when Officer Bencosme approached. The Court rejects this argument. Officer Bencosme's credible hearing testimony established that he pulled the defendant over after observing him talking on his cell phone while driving the vehicle. The Court also credits Officer Bencosme's testimony that the defendant appeared to be intoxicated, i.e., he had bloodshot eyes, smelled of alcohol, and was unsteady on his feet. Based on his own observations, Officer Bencosme had ample probable cause to place the defendant under arrest for operating a motor vehicle while intoxicated (see People v Bigelow, 66 NY2d 417, 423 [1985]; People v Goodell, 164 AD2d 321, 323-324 [2d Dept. 1982], aff'd. 79 NY2d 868 [1992]; People v Farrell, 89 AD2d 987, 988 [2d Dept. 1982]). Accordingly, the defendant's application to suppress the evidence flowing from his arrest is denied.

The defendant also contends that his breathalyzer and coordination tests should be suppressed because he asked for an attorney at the precinct. "[A] defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test if he requests the assistance of counsel"(People v Shaw, 72 NY2d 1032, 1034 [1988]; People v Gursey, 22 NY2d 224, 229 [1968]; People v Monahan, 295 AD2d 626 [2d Dept. 2002]). However, a defendant does not have the "absolute right to refuse the test until a lawyer reaches the scene" (People v Gursey, supra at 229). As explained in Gursey, supra:

It is common knowledge that the human body dissipates alcohol rapidly and, indeed .... test [*3]results are admissible in evidence only if the test had been taken within two hours of the time of arrest. Where the defendant wishes only to telephone his lawyer or consult with a lawyer present in the station house or immediately available, no danger of delay is posed. If the attorney is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license without the aid of counsel.

(People v Gursey at 229). Where the defendant asks to be able to consult with a specific attorney, the police are required to take reasonable steps to try to contact that attorney for at least a telephone consultation (People v Palazzo, 2008 WL 2513208 [Sup. Ct. Bronx Cty. Jun.17, 2008][Fabrizio, J.]; see also People v Gursey, supra at 229; People v Kearney, 261 AD2d 638[2d Dept.1999]). In this case, however, there is no evidence that the defendant gave the police the name of an actual attorney with whom he wished to consult (People v Gursey, supra; People v Curley, 122 AD2d 67 [2d Dept. 1986]; People v Palazzo supra). Moreover, the defendant agreed to take the breathalyzer and coordination tests without an attorney. Indeed, the defendant's unequivocal consent to take these tests is memorialized on the videotape. Accordingly, the defendant's application to suppress the results of the breathalyzer and coordination tests is denied.

There is no basis for suppressing the pre-Miranda statements made by the defendant at the scene of his arrest and at the precinct. The statements made by the defendant at the time of his arrest were spontaneous and not the product of custodial interrogation (see People v Zapata, 41 AD3d 109 [1st Dept. 2007]; People v Garcia, 19 AD3d 200 [1st Dept. 2005]). The statements made by the defendant to the police officer who conducted the breathalyzer and coordination tests at the precinct are also admissible. Performance tests need not be preceded by Miranda warnings, and, a videotape of such tests, including any colloquy between the test giver and the defendant not constituting custodial interrogation, is admissible (see People v Jacquin, 71 NY2d 825 [1988]). Having viewed the videotape in the case at bar, the Court finds that the colloquy between the test giver and the defendant did not constitute custodial interrogation. Accordingly, the statements made by the defendant on the videotape are admissible.

This shall constitute the Decision and Order of this Court.

Dated:Bronx, New York

July 16, 2008