Following a combined Probable Cause, Huntley and Refusal hearing, the Court makes the following findings of facts and conclusions of law.

On July 3, 2010, at 12:36am Deputy Sheriff Reilly was patrolling Sunrise Highway when he received a radio call that a driver crashed her car into the center median guardrail near exit 52, westbound, Suffolk County, New York. At that location, the deputy sheriff saw a woman in the car seated behind the steering wheel with the car engine off, the keys in the ignition, and wearing her seat belt. The deputy sheriff parked two car lengths behind the car. He approached the car; the driver's window was open. He observed a very strong odor of alcohol coming from the woman. He ascertained that she was not injured. From a N.Y.S. photo ID, he identified the woman to be Barbara Lamouree.

He asked her to step out of the car. She needed help; he opened the car door. The area was lit from business buildings in the area as well as the lights from the emergency vehicle at the scene and overhead lights. The ground was asphalt. The woman was very unsteady on her feet and she held onto his arm. Her breath smelled of a strong odor of alcohol, and her eyes were bloodshot. The deputy sheriff asked the woman if she had been drinking and she replied that she had "two glasses of wine about one hour ago."

The deputy sheriff asked the woman to take field sobriety tests. First, he explained the one-legged stand. He could not demonstrate the procedure because the woman was holding onto his arm. She said, "I can't do it." He asked, "won't or can't?" She said, "Can't." The next test he explained was the walk and turn test. Again, he could not demonstrate the test because the woman was hanging onto his arm. The third test he explained was the Horizontal Gaze Nystagmous Test (HGN). He used a pen top as the stimulus and placed it about one foot from her face. The deputy sheriff described her eye movement as very jerky when trying to perform [*2]the three movements on each eye. She demonstrated six clues, which indicated to him that the woman was intoxicated. The deputy sheriff also acknowledged that the clues observed during the HGN test may result from a head injury or concussion. Deputy Sheriff Reilly further acknowledged that in diabetics symptoms of low blood sugar resemble symptoms of intoxication. The deputy sheriff then asked the woman to take a pre-screen breath test. The result was .20% BAC. Deputy Sheriff Reilly formed the opinion that the woman was intoxicated and arrested her for Driving under the Influence of Alcohol and transported her to Riverhead Sheriff's Facility.

At the sheriff's facility, Deputy Sheriff Reilly read to the defendant the request to take a chemical test and the refusal warnings in English. At the hearing, the deputy sheriff read verbatim the document in evidence, "Alcohol/Drug influence Report". He stopped reading at the conclusion of the Vehicle Warnings; that is, he did not read into the record at the hearing, " Your refusal to submit to a chemical test or any portion thereof can be introduced in evidence against you at any trial, proceeding or hearing resulting from this arrest." Deputy Sheriff Reilly stated that the defendant wrote the word, "consent", initialed the document in the appropriate space, and signed her name. At 2:08am, when brought to the intoxilizer machine, defendant refused to take the intoxilizer test. She refused again to take the test at 2:10am by stating, "I'm not taking the test." At 2:18am, defendant refused a third time to take the test by stating, "No." The defendant did not indicate that she did not understand by asking the deputy sheriff to read more slowly or to repeat the warnings.

Deputy Sheriff Reilly read the Miranda Rights to the defendant at 2:45am. She indicated she understood the rights as explained and would speak to Deputy Sheriff Reilly without an attorney present by writing the word, "yes" on the appropriate lines of the form. Among the questions answered, defendant indicated that she was not injured in the accident, did not strike her head in the accident, and that she was a diabetic. Defendant swore to the truth of the statements given by signing her name in the appropriate place on the form. At the conclusion of the interview, Deputy Sheriff Reilly stated that a duty officer gave defendant a sandwich and glass of milk because she was hungry. He was not sure if she begged him for candy.

THE COURT MAKES THE FOLLOWING CONCLUSION OF LAW:

At the scene of the accident, defendant was observed seated in the car behind the steering wheel with the car engine off, the keys in the ignition, and wearing her seat belt. The driver's window was open. Deputy Sheriff Reilly observed a very strong odor of alcohol coming from the woman. He ascertained that the woman was not injured. He asked her to step out of the car. She needed help; he opened the car door.The area was fairly well lit. The ground was asphalt. The woman was very unsteady on her feet; she held onto the deputy sheriff's arm. Her breath smelled of a strong odor of alcohol, and her eyes were bloodshot. The deputy sheriff asked the woman if she had been drinking and she replied that she had "two glasses of wine about one hour ago."She was unable to perform two of the three filed sobriety tests and performed poorly on the HGN test. The woman consented to take a roadside breath test; the result was a .20% BAC.

Based upon the totality of these observations, Deputy Sheriff Reilly formed the opinion that the [*3]defendant was intoxicated and therefore had probable cause to arrest the defendant for DWI.

The defendant's statements made at the scene were voluntarily made in response to Deputy Sheriff Reilly's investigation. The defendant was not in custody, nor was she threatened or coerced; therefore, these statements are admissible at trial.

At the sheriff's facility, Deputy Sheriff Reilly read to the defendant the request to take a chemical test and the refusal warnings in English. Deputy Sheriff Reilly stated that the defendant wrote the word, "consent", initialed the document in the appropriate space, and signed her name. At 2:08am, when brought to the intoxilizer machine, defendant refused to take the intoxilizer test. She refused again to take the test at 2:10am by stating, "I'm not taking the test." At 2:18am, defendant refused a third time to take the test by stating, "No." The defendant did not indicate that she did not understand the request to take a chemical test and the refusal warnings by asking the deputy sheriff to read more slowly or to repeat the warnings. However, at the hearing, the deputy sheriff did not include in his verbatim reading of the request to take a chemical test and the refusal warnings, the last warning: " Your refusal to submit to a chemical test or any portion thereof can be introduced in evidence against you at any trial, proceeding or hearing resulting from this arrest." At the time of defendant's arrest, section 1194.2(f) of the Vehicle and Traffic Law provided, in pertinent part: "Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based on a violation of the provisions of section eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal (emphasis supplied)." In the instant case, from the evidence adduced at the hearing, this Court cannot conclude that defendant was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that she persisted in the refusal . Therefore, the Court finds that the People may not introduce evidence of refusal to take a chemical test at trial. (see, People v. Boone, 71 AD2d 859).

Last, the Court finds that defendant indicated she understood the Miranda Rights as explained and agreed to to Deputy Sheriff Reilly without an attorney present by writing the word, "yes" on the appropriate lines of the form. Defendant swore to the truth of the statements given by signing her name in the appropriate place on the form. Therefore, those statements made to the deputy sheriff while in custody are admissible at trial.

Dated:J. D. C.