The defendant was charged with failure to dim lights, VTL

375(3), speeding, VTL 1180(D), common law driving while intoxicated, VTL 1192(3), driving

while impaired by drugs, VTL 1192(4) and criminal possession of controlled substance, 7th

degree, P.L. 220.03, on March 12, 2013. She was arraigned on April 17, 2013. The matter was

adjourned for argument of motions on June 5, 2013. The defendant was granted a probable

cause and a Huntley hearing, which was conducted on August 2, 2013. At that hearing the

People presented one witness, to wit: Officer Mark C. Reed of the Webster Police Department.

The defendant did not present any witnesses.

Facts of the Case.

The defendant was driving her vehicle eastbound on Lake Road in the Town of Webster

at approximately 12:30 A.M. Moving in the same direction on Lake Road at that time was [*2]

Officer Mark C. Reed of the Webster Police Department. The defendant's vehicle approached

the officer from behind. The Officer's attention was drawn to the high beams on the defendant's

vehicle and the high rate of speed of that vehicle. The officer testified that he pulled off to the

side of the road. He also testified that he was blinded by the defendant's high beams. The

defendant then passed the officer's vehicle and continued in an eastbound direction. The Officer

then engaged his emergency lights, pursued and stopped the defendant's vehicle. Officer Reed

testified that he visually estimated the speed of the defendant to be 45 miles per hour in a 35

miles per hour zone.

Upon approaching the defendant's vehicle and speaking to the defendant, the officer

observed various indicia of intoxication, including the strong odor of an alcoholic beverage. The

officer testified that the speech of the defendant was observed to be thick tongued and mumbled.

Her eyes were glassy and blood shot and her pupils were restricted. In response to a question by

the officer the defendant stated that she had consumed two glasses of wine.

As a result of that initial investigation, the defendant was told to exit her vehicle and

engage in various field sobriety tests. The defendant performed the horizontal gaze nystagmus

test, the walk and turn test and the one leg stand test. The officer testified that the defendant

failed those tests. The pre-screen test was positive for alcohol. Based on those tests the

defendant was arrested for driving while intoxicated. Nevertheless, the officer testified that he

did not think that alcohol was the reason for the defendant's intoxication.

The defendant was told to contact someone for a ride and to have someone drive her car.

At that time the defendant was in the rear of the officer's police car. She requested that the

officer retrieve her cell phone from her car. In so doing the officer observed two pill crusher [*3]

bags in plain site, which appeared to have pill residues therein. After providing the defendant

with her cell phone, the officer returned to the defendant's vehicle and inventoried the contents

of same, including the defendant's purse, which was in the front passenger compartment. As a

result of searching the defendant's purse Officer Reed found two plastic bags of pills which were

alleged to have contained prescription drugs. The defendant was arrested and transported to the

Webster Police Department.

In the meantime, the Officer Reed requested that a drug recognition expert (DRE) be sent

to the Webster Police Department. This was based on the officer's observations of the

defendant. As a result of that request, Officer John Foggerty of the Town of Greece Police

arrived at the Webster Police Department. He reportedly confirmed the suspicions of Officer

Reed regarding intoxication from drug use.

Prior to questioning the defendant was advised of her Miranda rights. The officer

testified to the lack of coercion or promises made to the defendant to get the defendant to speak

to him. The defendant did make certain incriminating statements during said questioning.

Issues Presented.

Did the officer have reasonable cause to stop the defendant's vehicle?

Should the evidence obtained as a result of the search of the defendant's car be suppressed?

Should the evidence obtained as the result of the search of the defendant's purse be

suppressed?

Should the charge of Common Law Driving While Intoxicated be dismissed?

Did the Officer have probable cause to arrest the defendant for driving while ability

impaired by drugs? [*4]

Were the accusatory instruments charging the defendant with driving while ability impaired by drugs sufficient on their face?

Should the court suppress any statements made by the defendant?

Legal Analysis.

Vehicle Stop. The officer testified that the basis for the stop of the defendant's vehicle

was two-fold. First, his attention was drawn to the high beams which the defendant failed to

dim. Second, Officer Reed observed the defendant's vehicle operating at a high rate of speed.

(a) High Beams. Vehicle and Traffic Law Section 375(3) states in pertinent part:

"Headlamps required pursuant to the provisions of subdivision two of this section may be of the multiple beam type designed to produce more than one distribution of light or of the single beam type designed to produce only one distribution of light. Provided that, whenever a vehicle approaching from ahead is within five hundred feet, or when approaching a moving vehicle from the rear and within two hundred feet of the same, the headlamps, if of the multiple beam type, or the auxiliary front facing lamps, if the vehicle is so equipped, shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle ..."

The statute does not provide that a failure to dim high beams is a violation in all cases.

It only requires that high beams be "operated so that dazzling light does not interfere with the

driver of the approaching vehicle". Thus the plain reading of the statute indicates that there are

instances when failure to dim one's high beams do not sufficiently interfere with the driver of the

approaching vehicle so as to violate this statute. In a case where the driver was stopped for

flashing his high beams on and off, and where the court suppressed the evidence obtained as a

result of the stop, the local court stated that [*5]

"The Court of Appeals has indicated: The mere flashing of lights, alone, does not constitute a violation of the statute (see People v. Meola, 7 NY2d 391, 397, 165 N.E.2d 851, 198 N.Y.S.2d 276 [1960]; People v. Hines, 155 AD2d 722, 724, 547 N.Y.S.2d 435 [1989], lv denied 76 NY2d 736, 557 N.E.2d 1194, 558 N.Y.S.2d 898 [1990]; People v. Lauber, 162 Misc 2d 19, 20, 617 N.Y.S.2d 419 [1994])." (People v. Garlock, 29 Misc 2d 1223(A) 920 N.Y.S.2d 243 [2010]).

In this case , the officer testified that while he was traveling eastbound on Lake Road,

the defendant was behind him and also traveling eastbound. He indicated that his sight was

adversely affected by the fact that the defendant failed to dim her high beams. The officer

testified that he was "blinded" by the lights from the defendant's vehicle that was approaching

him from behind when it was three car lengths from his patrol car. In People v. Yankovich, 39

Misc 3d 133(A), 2013 NY Slip Op 50530(U) (2013) the court found that there was probable

cause that the defendant violated VTL 375(3) where the testimony of the arresting officer at the

probable cause hearing was that while he was within 500 feet of the defendant's vehicle, because

of the defendant's high beams, he " had to take some evasive action' he couldn't see, and it

caused [him] to go off the road....'" The evidence elicited in the instant case, regarding the

defendant's high beams, did not raise to the standard required to support the stop of the

defendant's vehicle on this issue alone. The failure to dim headlamps must cause more than a [*6]

mere annoyance to the other driver, including a police officer. There must be an objective and

specific adverse affect on the other driver's ability to proceed. Simply causing the other driver to

squint or momentarily turn away would not be enough to violate this statute. Nor would a

conclusory statement that the failure to dim high beams, without more, blinded the other driver

be sufficient.

Furthermore, the statute refers to a situation wherein the high beams are "... operated so

that dazzling light does not interfere with the driver of the approaching vehicle ...." The officer

was not in "the approaching vehicle", but was in a vehicle ahead of the defendant. Despite a

reference in the statute to approaching another vehicle from the rear within 200 feet, the statute

seems to protect drivers headed in the opposite direction, not as in this case, the drivers headed

in the same direction. Nor can this court find any cases wherein a defendant was charged with

violation of this statute when approaching a vehicle from behind. Finally,

"McKinney's Consolidated Laws of NY, Book 2, Statutes § 271 (e) states

that: "The prohibition of a statute which is penal in nature may not be extended to doubtful situations * * * and every reasonable doubt concerning the meaning of the statute should be resolved in favor of the defendant. Thus, if there is a reasonable doubt whether a penal statute applies to a particular [**773] case, the party of whom the penalty is claimed should have the benefit of it. In other words that interpretation should be given conflicting provisions of a penal statute which best protects the rights of a person charged with an offense." (People v. O'Neill, 134, Misc 2d 536,539, 511 N.Y.S.2d 771,772-773 [1987]).

(b) Speeding. The defendant maintains that the stop of her vehicle based on her alleged

speed of 45 miles an hour in a 35 miles per hour zone was improper because it was based solely

on the visual estimate of the officer. The officer indicated in his testimony that he did not

confirm his visual estimate of the defendant's speed by use of a radar device. However, he

properly testified to his training and experience in estimating the speed of vehicles. Specifically

he indicated that he could estimate speed within plus or minus 3 miles per hour. "The rule is

well settled in this State that opinion evidence with regard to the speed of moving vehicles is

admissible provided that the witness who testifies first shows some experience in observing the

rate of speed of moving objects or some other satisfactory reason for his opinion." (People v.

Olsen, 22 NY2d 230, 231, 292 N.Y.S. 2d 420,421 [1968]). However the Court of Appeals

went on to say that "It is true ... that a police officer cannot testify with precise accuracy as to

speed of a vehicle. (See, also People v. Dusing, 5 NY2d 126, ... [concurring opn. of Van

Voorhis, J.].) This does not mean, however, that his estimate of speed upon considerable [*8]

experience, must be ignored in all cases."^[FN1] The court stated that an estimate of within 10 miles

per hour of the speed limit would not be reliable. ^[FN2] In that case the two police officers separately

estimated the defendant's speed to be between 50 and 55 miles per hour wherein the posted

speed limit was 30 miles per hour.^[FN3] In overturning the trial court's finding that an officer's

estimate of speed, because it was not confirmed by an electronic device, was insufficient to

sustain a conviction for speeding, the Court of Appeals held specifically in full as follows:

"A police officer's estimate that a defendant was traveling at 50 to 55 miles per hour in a 30-mile-an-hour zone should be sufficient to sustain a conviction for speeding. On the other hand, his testimony, absent mechanical corroboration, that a vehicle was proceeding at 35 or 40 miles per hour in the same zone might for obvious reason be insufficient, since it may be assumed that only a mechanical device could detect such a slight variance with accuracy sufficient to satisfy the burden necessary to sustain a conviction."^[FN4]

Nevertheless, the proceeding at hand is a probable cause hearing. "The CPL uses the

phrase reasonable cause' in lieu of the phrase probable cause'. However, it is well settled that

[r]easonable cause means probable cause'" (Gerstenzang, Handling the DWI Case in New York

[2012 - 2013] Section 1:27)The standard in a probable cause hearing is less than the standard

required for conviction.CPL 70.10(2) defines reasonable cause as follows:

"'Reasonable cause to believe that a person has committed an offense'" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.'

In any hearing or trial the "... court's decision to credit such testimony [i.e. the visual

estimation of the speed of a vehicle] should be based upon all the facts and circumstances

of the case, including the nature and extent of the opportunity which the officer had to view the

moving vehicle.^[FN5] In this case, in evaluating the credibility of the Officer's testimony and in

evaluating his experience and training, the court finds that there was reasonable cause to stop the

defendant for speeding.^[FN6] This finding should not be interpreted as making any determination

relative to the ultimate guilt or innocence of the defendant as to the charge of speeding.

Vehicle Search. Both the 4th Amendment to the United States Constitution and Article 1,

Section 12 of the New York State Constitution prohibit unreasonable searches and seizures. At

the time the officer conducted the vehicle inventory, the defendant was being held in the back

of the police car. In fact, the officers first entry into the defendant's vehicle was at the behest of

the defendant, wherein she requested that Officer Reed retrieve her cell phone. It was at that

time that the officer observed the pill crusher bags. Thus neither the first entry of the vehicle by

the officer nor the inventory search could not be considered a search incident to an arrest, which

would be necessary for the safety of the officer.

Searches Incident to an Arrest. Searches of motor vehicles incident to an arrest have [*10]

been the subject of numerous state and federal cases. In 2009 the United States Supreme Court

dramatically changed the way these types of cases must be viewed by courts, when it decided

Arizona v. Gant 556 U.S. 332, 349, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Previously New

York v. Belton 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) was the controlling case.

That case permitted the search of the passenger compartment of a vehicle and any containers

found therein upon the arrest of its occupant. However, in deciding Gant "... the Supreme Court

concluded that a broad reading of Belton had resulted in countless unconstitutional searches in

the 28 years since Belton was decided." (Gerstenzang, Handling the DWI Case in New York

[2012- 2013 Edition] Section 1:39 at pages 58-59)

Inventory Search. In this case, Officer Reed, testified that his second entry into the

defendant's vehicle was in fact an inventory search wherein he found and searched the

defendant's purse which contained two plastic bags of what appeared to be prescription

medication. "The specific objectives of an inventory search, particularly in the context of a

vehicle, are to protect the property of the defendant, to protect the police against any claim of lost

property, and to protect police personnel and others from any dangerous instruments." (People v.

Johnson, 1 NY3d 252, 256, 771 N.Y.S.2d 64,66 [2003]). However, the Court of Appeals in

Johnson reiterated the requirement that inventory searches be conducted pursuant to a " ...an

established procedure clearly limiting the conduct of individual officers that assures that the

searches are carried out consistently and reasonably' (People v. Galak, 80 NY2d 715, 719, 610

N.E.2d 362, 594 N.Y.S.2d 689 [1993]). The procedure must be standardized so as to limit the

discretion of the officer in the field'"^[FN7]

There was nothing presented at the probable causehearing, to suggest that the

Webster Police Department had any such established written procedure or general order

regarding the performance of a vehicle inventory search. Officer Reed did testify that these types

of searches are standard procedure in these types of cases. However, that would not be enough to

satisfy the standard for inventory searches which has been established by both the Johnson and

Galak cases. A standard procedure for inventory searches assists in preventing a fishing

expedition for evidence for which the prohibitions against unreasonable searches and seizures

were designed to prevent. [*11]

Other Basis for Search of the Vehicle. The U.S. Supreme Court in Arizona v. Gant sets

out an exception to the requirement that the search of a vehicle incident to an arrest is limited to

situations where in the defendant is in close proximity to the passenger compartment. The court

held that

"Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies." (Arizona v. Gant 556 U.S. a 351, 129 S.Ct. At 1723-24.)^[FN8]

Thus the search of the passenger compartment of defendant's vehicle and the purse found

therein, as a search incident to an arrest, was justified since the officer could reasonably believe

that the vehicle contained evidence related to the arrest at hand, i.e. driving while ability impaired

by drugs. That belief was justified by the defendant's, appearance, demeanor, performance of the

field sobriety tests, and the pill crusher bags found in the vehicle. That would give an officer the

reasonable belief that evidence of intoxicants could be found in the vehicle's passenger

compartment or in any containers therein such as in this case a purse.

Arrest For Driving While Ability Impaired by Drugs. (a) Probable cause to Arrest.

The defendant maintains that the arresting officer did not have probable cause to arrest the

defendant for driving while ability impaired by drugs. VTL 1192(4). There is no requirement in

the law that would only permit an arrest for this charge by a drug recognition expert. In People v.

Shapiro 141 AD2d 577, 529 N.Y.S.2d 186 (2nd Dept. 1988), the court upheld the trial court's

finding of probable cause to arrest for driving while ability impaired by drugs based on the

observation of the defendant by two arresting officers. The Appellate Division stated in its

opinion that

"We agree with the hearing court's conclusion that there was probable cause to arrest thedefendant and that the seizure of physical evidence from the defendant's car was proper. The evidence adduced at the hearing established that the two arresting officers observed the defendant driving at erratic [*578] speeds as well as swerving across a double yellow line. Upon [*12]pulling the defendant's vehicle over, the officers further observed that the defendant's pupils were dilated, his hair was "disheveled", his clothing was "mussed", and his behavior was "fidgety" and "jumpy". At the same time, Officer Castelli observed a vial containing white powder on the front seat of defendant's car. After engaging in conversation with the defendant and ascertaining that he was not ill, or under the influence of prescription medication, the officers concluded that the defendant's behavior bore the characteristic manifestations of cocaine influence and thus arrested him for driving while his ability was impaired by the use of drugs (Vehicle and Traffic Law § 1192 [4])."^[FN9]

In People v. Kaminski, 151 Misc 2d 664, 573 N.Y.S.2d 394 (Rhinebeck Just. Ct. 1991)

the defendant was arrested and charged with driving while ability impaired by drugs, VTL

1194(4), by police officers who initially stopped him for having improper plates VTL 402(4).

"When one of the Officer's approached the vehicle he noticed [***2] an odor emanating that he identified, based upon his training, as marijuana. The second officer was asked to confirm this conclusion and agreed with the first officer. The defendant was then asked to exit the vehicle, provide identification and the second officer conducted four field tests namely - the alphabet test, the raised leg test, heel to toe straight line test and horizontal gaze nistogis test. Based upon these tests the senior officer determined that defendant was operating a vehicle in violation of V & T Law Sec. 1192(4)."^[FN10]

(b) Sufficiency of the Accusatory Instrument.The defendant's Notice of Motion

requests that "the informations herein be dismissed as a result of being defective on its [sic] face.

Sufficiency of an accusatory is a separate and distinct issue from probable cause, since the

accusatory instruments such as a criminal complaint and/or misdemeanor information are

prepared after the arrest. In this case, no written record of an opinion of a drug recognition expert

was attached to the accusatory instruments, which are a simplified traffic information and

supporting deposition.^[FN11] Nor is there any reference to any such record of an opinion. Officer

Reed's testimony, that his suspicion that the defendant was intoxicated by reason of drugs was

confirmed verbally by Officer Foggerty to Officer Reed, is hearsay. However, pursuant to CPL

70.10(2) the evidence establishing reasonable cause may consist of hearsay, which is the

case here.

It has been held that

"The written record of an opinion of a DRE can ... provide reasonable

cause' for believing that the defendant committed the offense charged..

The issue thus devolves here to whether the failure to have referred to,

summarized, or annexed the drug influence evaluation to the supporting

deposition renders the accusatory instrument dismissible. It would

appear that it does." (People v. Rose, 8 Misc 3d 184,190, 794 N.Y.S.2d

630,635 [Dist. Ct. 2005]).

However, on a related note, it is well established that lab reports are not necessary "... to

sustain the facial sufficiency of an information. (People v. Price, 35 Misc 3d 1203(A), 950

N.Y.S.2d 725 [2012]). In addition, the Court of Appeals has held "So long as the factual [*14]

allegations of an information give an accused notice sufficient to prepare a defense and are

adequately detailed to prevent a defendant from being tried twice for the same offense, they

should be given a fair and not overly restrictive or technical reading ...." (People v. Casey, 95

NY2d 354,360, 717 N.Y.S.2d 88,91[2000]). Lastly, the defendant was charged by way of a

simplified traffic infraction and a "Supporting Deposition: N.Y.S. V & T Law Section 1192

Subdivision 3/4". The controlling law is this regard is best summarized as follows:

"... CPL 100.15 and 100.40 do not apply to simplified traffic informations. It is statutorily dictated that a simplified traffic information has different, and lesser, requirements for facial sufficiency than a misdemeanor information. In fact, a simplified traffic information is not required to have factual allegations of an evidentiary nature, whether hearsay or nonhearsay ( CPL 100.10 [2] [a]), and if a supporting deposition is requested it can be based on hearsay or nonhearsay so long as it provides a reasonable cause to believe that defendant committed the charged offenses ( CPL 100.25 [2])." (People v. DeRojas, 180 Misc 2d 690,691, 693 N.Y.S.2d 404,405 [App Term, 2d Dept. 1999]).

The decision of the Appellate Term of the 2nd Department, as set out in the DeRojas case, seems

to be in opposition to the holding of the trial court in the Rose case. This court will follow the

decision in People v. DeRojas. As a result, the motion to dismiss the charge of driving while

ability impaired by drugs, VTL 1192(4) is denied.

Criminal Possession of a Controlled Substance, 7th Degree.The items retrieved from

the defendant's purse were alleged to be 41 Ritalin Pills and 2 Valium pills. Both of which drugs

are controlled substances. Neither of which were in a bottle labeled consistent with that of a duly

issued prescription. Instead they were in two plastic bags. The presence of those drugs found in

plastic bags inside the defendant's purse, along with the indicia of intoxication demonstrated by

the defendant and the officer's training and experience, provided probable cause to arrest the [*15]

defendant for criminal possession of a controlled substance, 7th degree, P.L. 220.03. (See People

v. Zazuela, 141 AD2d 788 [2nd Dept. 1988] and People v. Harris, 190 AD2d 1043, 594 499

[4th Dept. 1993]. See also People v. Kalin, 12 NY3d 225,231, 878 N.Y.S.2d 653, 657 [2009]),

wherein the court stated "We have already rejected the notion that a laboratory report is necessary

to set forth a prima facie case and we unanimously adhere to that holding today.")

Huntley Hearing. The defense moved for an order suppressing statements made to the

arresting officer by the defendant. A Huntley hearing was granted in response to said motion.

The evidence adduced at the hearing indicated that any statements made by the defendant at the

scene of the stop were in response to investigatory questions of the officer.

"After removing the driver from the vehicle, police may question him further regarding the traffic infraction. People v. Alexander 189 AD2d 189, 595 N.Y.S.2d 279, People v. Woods 189 AD2d 838, 592 N.Y.S.2d 748. If in the course of a lawful traffic stop the officer makes observations or the driver makes statements that constitute reasonable suspicion that criminal activity is afoot, the officer may continue to hold the driver for further questioning. People v. Lee 6 AD3d 1235, 775 N.Y.S.2d 734." (People v. Cross, 17 Misc 3d 1109(A), 851 N.Y.S.2d 59 [2007].

Once the defendant was arrested and transported to the Webster Police Department,

Reed Officer Reed read the defendant the standard Miranda warnings. The defendant agreed to

speak with the officer. There was no evidence of any threats or promises to get the defendant to

speak with him.

Conclusion.

Based on the facts elicited at the probable cause hearing the court finds that there was no

probable cause to arrest the defendant for failure to dim lights, VTL 375(3) or common law [*16]

driving while intoxicated, VTL 1192(3). As a result, both charges are dismissed for lack of

probable cause to arrest. The court finds that the officer had probable cause to arrest the

defendant for the remaining charges of of speeding, VTL 1180(D), driving while ability impaired

by drugs, VTL 1192(4) and criminal possession of controlled substance, 7th degree, P.L. 220.03.

Defendant's motions to suppress tangible evidence obtained as a result of the stop and search

of her vehicle and purse is hereby denied. Lastly, defendant's motion to suppress statements

made by the defendant to any law enforcement officer is also denied.

This constitutes the decision and order of this court.

Dated: September 4, 2013

Webster, New York

_______________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice