[*1]
| People v Wagner |
| 2013 NY Slip Op 51301(U) [40 Misc 3d 1225(A)] |
| Decided on August 5, 2013 |
| District Court Of Suffolk County, First District |
| Ford, J. |
| Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
District Court of Suffolk County, First
District
The People of
the State of New York, Plaintiff,
against
William Wagner, Defendant.
|
201150040597
Appearances of Counsel:
For the Defendant: Cornell V. Bouse
Jericho, NY
For the People: A.D.A. Elizabeth Moran
for Thomas J. Spota, District Attorney of the County of Suffolk
Central Islip, NY
William G. Ford, J.
The defendant herein, William Wagner, is charged with VTL
1192.3, 1201.A, 1194.1B, occurring September 3, 2011 at approximately 10:20 pm on
southbound Lakefield Road, Town of Huntington, Suffolk County. On June 17, 2013, a
Dunaway/ Mapp/ Huntley/ Refusal hearing was held before this
Court to determine the admissibility at trial of evidence obtained from this defendant.
Testifying on behalf of the people was Suffolk County Police Officer Harry Jos Jr.
FINDINGS OF
FACT
Police Officer Jos testified credibly that he is an 18 year
veteran of the Suffolk County Police Department, a certified breath technician, a former
member of the DWI safety team, and has made over 400 DWI arrests. On September 3,
2011, he was in a marked car with his partner Steven J. Discala, when they received a
dispatch call about a vehicle blocking traffic on southbound Lakefield Road. They
proceeded to the location, which is just south of Clay Pitts Road. They observed a 2001
Kia slightly angled blocking southbound traffic in the right hand lane of Lakefield, south
of Clay Pitts Road.
Police Officer Jos and Officer Discala pulled behind the vehicle and blocked
that lane. Officer Jos went to the driver's side and Officer Discala went to the passenger
side. The vehicle was running with keys in the ignition and two males were inside who
appeared to be either sleeping or unconscious. Office Jos woke the driver by shaking his
shoulder. When he opened the door to do so, he noted a strong odor of alcohol from the
vehicle. He also noted the driver's [*2]eyes to be
blood-shot. He requested the driver's license, which identified the driver as William
Wagner.
Police Officer Jos asked Mr. Wagner to exit the vehicle, his passenger
remained unconscious. He asked defendant if he had been drinking; the response was,
"Me and my buddy were drinking and he asked me to drive." The officer requested they
go to an adjacent parking lot to perform standard field sobriety tests (SFSTs). Defendant
refused. The officer noted the odor of an alcoholic beverage on defendant's breath, that
his gait was unsteady, and his speech slurred in response to the officer's questions. In
further response to the request to take the SFSTs and the portable breath test, defendant
responded, "I'm not going to do any tests."
Officer Jos determined defendant was intoxicated based on his observations
and defendant's admission and arrested him at 11:01 pm, whereupon he was transported
to the Second precinct.
At the Second precinct, Police Officer Jos read the refusal warnings on the
alcohol/drug influence report (AIR) at 11:20 pm. Defendant refused to take the chemical
test at 11:20 pm; again refused at 11:40 pm, stating, "No, I refuse," and again at 11:58
pm, stating, "No." He refused to initial, sign or otherwise mark the form itself, stating, "I
refuse."
CONCLUSIONS OF LAW
The Arrest
Officer Jos's observation of the defendant, his demeanor, the odor of alcohol,
his unsteady gait, and defendant's admissions all provide probable cause to arrest him for
driving while intoxicated. People v. Kowalski, 291 AD2d 669 (3d Dept. 2002);
People v. Lamb, 235 AD2d 829, 830-831 (3d Dept. 1997); People v. Kalwiss, 6 Misc 3d
129 (A), 2005 NY Slip Op. 50057(U) (App Term 2d Dept. 9 & 10th Jud. Dists.
2005); People v. McLaney, 135 AD2d 901 (3d Dept. 1987).
The definition of "operation" is broader than the ordinary definition of
"driving." People v. O'Connor, 159 Misc 2d 1072, 1075 (Dist. Ct. Nassau County
1994). Courts have interpreted an individual to be engaging in the "operation" of a
vehicle when he or she is found behind the wheel with the motor running or when the
facts and circumstances prove that the individual had actually moved the car while
intoxicated or intended to do so. See People v. Dymond, 158 Misc 2d 677
(Greene County Ct. 1993); People v. Blake, 5 NY2d 118 (1958); People v.
Thornton, 130 AD2d 78 (3d Dept. 1987), app den 70 NY2d 755 (1987). The
People may also prove operation simultaneous with intoxication by circumstantial
evidence. See People v. Collins, 70 AD2d 986 (3d Dept. 1979); People v. Shaffer, 95 AD3d
1365 (3d Dept. 2012). Here, based on the totality of the circumstances as credibly
testified to by Officer Jos, the People have shown operation.
Page 3
The Refusal
Under VTL 1194(2)(a), evidence of a defendant's refusal to submit to a
chemical test is admissible at trial if the People are first able to make a showing that the
requests for the tests were made within two hours of the arrest or breath test. Next, the
People must show that defendant was given adequate warning of the consequences of the
refusal, VTL 1194(2)(a); People v. Brol, 81 AD2d 739 (4th Dept. 1981), affd
as modified 89 AD2d 813 (1982) and that the defendant persisted in his or her right
to refuse the chemical test. VTL 1194(2)(f); see also People v. Thomas, 46 NY2d
100, 108 (1978), app dsmd 444 US 891 (1979). Such a persistent refusal can be
demonstrated by the defendant's verbal responses or observed conduct. See People v.
Richburg, 287 AD2d. 790, at 792 (3rd Dept. 2001), lv app den 97 NY2d 687
(2001); People v. D'Angelo, 244 AD2d 788, at 789 (3rd Dept. 1997), lv app
den 91 NY2d 890 (1998)).
Here, the arrest was at 11:01 pm, the warnings were read at 11:20 pm, 11:40
pm and 11:58 pm. Based on defendant's verbal responses and behavior, the People have
made a successful showing of the requisite elements of a persistent refusal, and evidence
of such will be admissible at trial.
Defendant's Statements
Defendant's statements, including that he and his buddy were drinking, were
made during the course of the officer's permissible roadside investigation, and were not
obtained through any unfairness or coercion. As such, the statements are admissible.
Therefore, after hearing and evaluating all the testimony herein presented,
this court finds that probable cause existed for defendant's arrest and defendant's motion
to suppress is denied. Defendant's motion to suppress his statement and evidence of his
refusal to submit to a chemical test are also denied for all the reasons stated
supra.
J.D.C.
Dated: August 5, 2013
Decision to be published on line: _x_ yes _____ no