On December 12, 2011 a misdemeanor information was filed against the defendant, Volodymyr Dzvonyk, charging him with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, two counts of Driving While Intoxicated, and one count of Aggravated Driving While Intoxicated (VTL §§1992.2, 1192.3 and 1192.2(2)(a)). The allegation is that on December 12, 2011, the defendant was driving in an intoxicated condition with a blood alcohol content in excess of .18.

The defendant has moved for an order suppressing the results of the chemical test analysis on the grounds that it was taken in violation of his state and federal constitutional rights. More specifically, the defendant contends that the results of the chemical test should not be admitted at his trial since the defendant's consent to the administration of the test was not voluntarily made since he was not given the instructions for the breath test in his native language. The defendant also claims that the failure of the police to provide a Russian interpreter during the breath test violated his rights to due process and equal protection under the Constitution, since he did not understand his ability to refuse to submit to such testing. A hearing was ordered to determine the voluntariness of the defendant's consent.

On May 29, 2013, this Court conducted a hearing with respect to this issue. At that hearing, Police Officer Justin Currao testified on behalf of the People. I find his testimony [*2]credible and make the following Findings of Facts and Conclusions of Law.^[FN1]

FINDINGS OF FACTOfficer Currao has been a member of the New York City Police Department for approximately 7 years and is currently assigned to the 113th Precinct (H 9)^[FN2]. On December 12, 2011 at approximately 3:30 a.m., Police Officer Justin Currao responded to the scene of a motor vehicle accident and observed the defendant, Volodymyr Dzvonyk, standing outside a 2003 Nissan Murano which had front end damage (H 10). Officer Currao spoke with an eyewitness who informed him that she observed the defendant driving the vehicle and that he had struck a car (H 12). Officer Currao spoke with the defendant in English and asked the defendant for his registration and insurance (H 13). The defendant complied by entering the car and obtaining the requested materials (H 13-14). At that time, Officer Currao noticed that the defendant had bloodshot eyes, slurred speech, was unsteady on his feet, and had a strong odor of alcohol on his breath (H 13, 27). After making these observations, Officer Currao arrested the defendant at approximately 04:15 a.m. and transported the defendant to the 112th precinct for processing (H 15).

According to the testimony at the hearing, once inside the 112 Precinct, the defendant was taken to the Intoxicated Driver Testing Unit (H 15). During the hearing, the People played the video recording of the administration of this test, which was admitted into evidence as People's Exhibit 1 (H 18). On the video, the Court was able to observe the officer request in English that the defendant take a breath test, and while initially showing confusion or hesitation, the video shows that the defendant responded that he would take the test. This question was followed by a question asking if the defendant understood the officer, to which the defendant nodded his head in an up and down position, indicating he understood the officer. The video further shows that, while it takes several attempts to obtain a breath sample, a sufficient sample was provided and the results of the chemical test indicated that the defendant's blood alcohol content was .233. Of note, the video recording does not show the officer threatening the defendant, or forcing him (either physically or verbally) to take the test. The breath test was administered at approximately 05:17 a.m. (H 17).

At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Spann, 82 AD3d 1013, 918 NYS2d 588 [*3](2d Dept 2011); People v. Blinker, 80 AD3d 619, 915 NYS2d 593 (2d Dept 2011). Once this burden is met, it is the defendant's burden to prove the illegality of the police conduct. Berrios, 28 NY2d 361, 321 NYS2d 884; Spann, 82 AD3d 1013, 918 NYS2d 588.

A.Probable Cause for the Arrest of the Defendant

An officer is authorized to make an arrest for "[a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." C.P.L § 140.10; People v. De Bour, 40 NY2d 210, 386 NYS2d 375 (1976); People v. McIntosh, 96 NY2d 521, 730 NYS2d 265 (2001). In the instant case, Officer Currao testified that he arrived at the scene of a vehicle accident, was informed that the defendant had been driving by an eyewitness, and further observed the defendant to have the common law signs of intoxication, to wit, blood shot eyes, slurred speech, was unsteady on his feet, and had the odor of alcohol on his breath (H 13). These facts, if proved true, would constitute the crime of Operating a Motor Vehicle while Under the Influence of Alcohol or Drugs, an unclassified misdemeanor equivalent to an A misdemeanor. See People v. Blajeski, 125 AD2d 582, 509 NYS2d 648 (2d Dept 1986); People v. Freeman, 37 Misc 3d 142(A), 966 NYS2d 348 (App Term 2d Dept 2012).

Accordingly, the officer had probable cause to arrest the defendant.

B.Voluntariness of the Defendant's Consent to the Breath Test

Pursuant to VTL §1194, any person who operates a motor vehicle within the state is deemed to have given consent to a chemical test in order to determine blood alcohol content provided such test is (1) administered by or at the direction of a police officer within two hours of the defendant's arrest and (2) that the arresting officer had reasonable cause to believe the defendant was driving in violation of VTL §1192. See VTL §1194; see also People v. Washington, 107 AD3d, 4, 964 NYS2d 176, 181 (2d Dept 2013); see also People v. Hall, 61 NY2d 834, 473 NYS2d 959 (1984)(consent implied under VTL §1194 notwithstanding the fact that the defendant was unconscious when blood test administered); People v. Kates, 53 NY2d 591, 444 NYS2d 446 (1981)(unconscious person is deemed to have given consent as long as the test is conducted within the two hour limit).

In the instant case, the People have met their burden in establishing that the chemical test administered to the defendant was done within the parameters set forth in VTL §1194. To begin, the test was administered by a police officer within two hours of the defendant's arrest (H 16-17). Further, the test was performed after the officer had probable cause to believe that the defendant had been driving a motor vehicle while under the influence of alcohol (H 12-13). Lastly, a review of the video tape of the defendant's chemical test clearly demonstrates that the defendant was not forced, coerced or threatened (either verbally or physically) in any manner prior to the submission of the breath test. And, while the preferred method may have been to provide an interpreter to speak to the defendant, or play a video recording if one was available, in his native language, the defendant appeared to understand the request to provide a breath sample. [*4]This is also established by the fact that he did in fact provide a breath sample.^[FN3] As such, the People have met their burden in proving that the conduct of the police was proper.

The defendant does not dispute that the breath test was conducted in accordance with VTL §1194. Instead, the defendant argues that because the defendant was not provided an interpreter, or a recording of the request, in his native language of Russian, he did not understand that he had a right to refuse to take such a test, and therefore admitting the results of the chemical test would violate his constitutional rights to due process and equal protection. See Defendant's Memorandum of Law. Such argument is without merit.

To begin, courts have repeatedly held that driving is a privilege and not a fundamental right and, as such, a motorist does not have a constitutional right to refuse to submit to a chemical test. See People v. Smith, 18 NY3d 544, 548, 942 NYS2d 426, 429 (2012); Washington, 107 AD3d 4, 964 NYS2d at 181. Further, the issue as to whether a driver's rights to due process or equal protection under the law for being denied his right to refuse to submit to a chemical test was resolved by the Court of Appeals in People v. Kates, 53 NY2d at 595, 444 NYS2d at 448. In Kates, the Court of Appeals examined VTL §1194 and the implied consent rule in the context of an unconscious driver who was unable to refuse to submit to a chemical test. When examining the propriety of drawing a distinction between an unconscious or incapacitated driver and a conscious driver, the court found that the purpose of the refusal statute was to avoid violent conflicts between the police and motorists and was not intended to require the police to obtain actual consent from a driver. Id. at 595-96, 444 NYS2d at 448-49. As such, the Court held that there was "a rational basis for distinguishing between the driver who is capable of making a choice and the driver who is unable to do so" and thus such a distinction between drivers did not violate the equal protection clause. Id. at 596, 444 NYS2d at 449.

The facts of the instant case are analogous. At best, the defendant's argument is that he was incapable of refusing to submit to a chemical test because a language barrier prohibited him from understanding he could refuse to submit to such a test. As set forth in Kates, such distinction does not violate the equal protection clause or the defendant's due process rights. Kates, 53 NYS2d at 595-96, 444 NYS2d at 448-49.

July 10, 2013 [*5]

_________________________

HON. GIA L. MORRIS

Judge of the Criminal Court