The Defendant, Jefferson Herrera, is charged in the accusatory instrument with one count of Driving While Intoxicated (VTL § 1192[3]] and one count of Driving While Ability Impaired (VTL § 1192[1]). On May 22nd and 29th, 2024 a joint Huntley/Dunaway and Refusal hearing was conducted following a prior order by the Court. The arresting officer, Police Officer ("P.O.") Douglas McLaughlin and a paralegal at the Queens County District Attorney's ("QCDA") office, Kenny Baez Ramirez testified on behalf of the People. The People also introduced IDTU video from the 112th precinct into evidence. The Defendant introduced the body-worn camera (BWC) footage of PO McLaughlin's partner, PO Ye, into evidence but did not call him as a witness.

The Court finds the testimony of both witnesses to be credible in all relevant aspects.

PO McLaughlin has been an officer with the New York City Police Department for approximately seven and a half (7 ½) years and is currently assigned to patrol with the 107th precinct. He has made approximately thirty (30) arrests for driving while intoxicated (DWI) and has been involved in more than fifty (50) DWI investigations. Officer McLaughlin received specific training at the academy in handling DWI cases, including administration of a portable breath test and field sobriety tests.

On July 22, 2023, PO McLaughlin was on midnight patrol from 11:15 pm to 7:50 am with a partner, PO Ye. At approximately 3:40 am, PO McLaughlin became involved in a VTL investigation after a 911 call about a motor vehicle accident, with the driver asleep and possibly [*2]intoxicated. When he arrived at the location of 8745 148th street in Queens County, PO McLaughlin observed that a Nissan Rogue had collided with an unoccupied parked car. The 911 caller, Mr. Islam, was present at the location and informed PO McLaughlin that he observed the accident happen. Mr. Islam told PO McLaughlin that he was in the middle of parking his own car when he heard a loud crash. Mr. Islam told PO McLaughlin that he had tried waking up the driver of the vehicle.

After speaking with Mr. Islam, PO McLaughlin knocked on the window of the Nissan Rogue to try to wake up the Defendant, who was seated in the driver's seat. PO McLaughlin opened the unlocked door and woke up the Defendant and then asked him to put the car in park and turn off the car's ignition. PO McLaughlin testified that the Defendant seemed to understand but did not do put the car in park immediately. At that point, PO McLaughlin asked the Defendant if he was ok and if he had drank alcohol. The Defendant answered "yes" and nodded his head to both questions.

PO McLaughlin then directed the Defendant to exit the car and noticed that the Defendant momentarily braced his left arm. PO McLaughlin was within two feet of the Defendant and smelled a strong odor of alcohol on Defendant's breath and observed that he had bloodshot watery eyes and was swaying on his feet. PO McLaughlin thought for a second that the Defendant may fall over and put his arm out to brace him. Officer McLaughlin recognized those signs to be indicia of intoxication. Based upon the officers' observations of defendant's physical condition, the Defendant's statement that he drank alcohol, PO McLaughlin concluded that the Defendant operated his vehicle while under the influence of alcohol and placed him under arrest at 3:59 am.

PO McLaughlin transported the Defendant to the 112th precinct where the Defendant was asked by another officer, PO Rivera, in the presence of PO McLaughlin to submit to a chemical breath test. The Defendant was asked if he wished to take the test in both English and Spanish. Following the instructions, Defendant immediately replied that he would take the test. A paralegal from QCDA, Kenny Baez Ramirez, testified as to the English translation of the Spanish language instructions given to the Defendant.

The Defendant attempted to take the chemical breath test, however a test result was not produced. According to PO McLaughlin, the Defendant was blocking the breathing tube with his teeth. The Defendant was informed that if he continued to do this, his license would be suspended as it would be considered a refusal by conduct. He was told this in both English and Spanish. At 5:45 am, the Defendant's conduct was deemed a refusal.

Defendant contends that there was insufficient probable cause to arrest the Defendant because a portable breath test was not administered and there was no actual evidence of the Defendant being intoxicated. Additionally, with respect to Defendant's statement on the scene that he had been drinking, defendant asserts that the statement was not voluntary, and it was made when he was subject to custodial interrogation without being advised of his Miranda warnings and thus, the statement should be suppressed. Defendant further argues that the Defendant's inability to understand the instructions and perform the chemical breath test should do not amount to a refusal to take the test and should not be introduced into evidence against him. Based upon the foregoing, defendant moves to suppress all evidence obtained as a [*3]result of his stop including the statement he made at the scene of the arrest. Defendant further moves to suppress all police observations of him, the alleged refusal depicted in the "IDTU" recording as the fruits of an illegal arrest.

The People argue that PO McLaughlin's observation of defendant's intoxicated condition, as well as Defendant's statement established probable cause to arrest him for driving a motor vehicle while under the influence of alcohol. The People argue that Defendant's statement to police officers on the scene, was made when Defendant was not in custody and in response to investigatory questions, when Miranda warnings are not required to be given to defendant at that time. Finally, the People assert that defendant's conduct clearly demonstrates that he purposely improperly blew into the breathalyzer after being given repeated instructions and after PO Rivera physically demonstrated how to take the chemical breath test. The People argue that the Defendant's repeated and purposeful actions of not blowing into the breathalyzer amount to a refusal by conduct and should be introduced as evidence against him demonstrating a consciousness of guilt.

At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of police conduct (see People v Baldwin, 25 NY2d 66 [1969; People v Malinsky, 15 NY2d 86 [1965]). The People must present to the Court not only credible evidence but also facts, not mere conclusions, or beliefs of their witnesses, to meet their burden (see People v Berrios, 28 NY2d 361 [1971]). In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. Once the People meet their initial burden, a defendant bears the ultimate burden of demonstrating the illegality of the disputed police conduct (Id). Evidence obtained as a result of an illegal arrest is inadmissible at trial (see Mapp v Ohio, 367 US 643 [1961]).

Here, officers responded to the scene following a 911 call of a motor vehicle accident. PO Mclaughlin investigated the incident by speaking with an eyewitness who was the 911 caller. PO McLaughlin's investigation of the incident was proper and did not exceed the scope of legal bounds. Further, the combination of PO McLaughlin's observations of defendant's physical condition indicating indicia of intoxication and defendant's admission that he had consumed alcohol could have led a reasonable officer in Officer McLaughlin's position to conclude that Defendant had operated a motor vehicle while under the influence of alcohol. Thus, PO McLaughlin had the requisite probable cause to arrest defendant for the crime of Driving While Intoxicated (see People v Johnson, 140 AD3d 978 [2d Dept 2016]; People v Tieman, 132 AD3d 703 [2d Dept 2015]; People v Kowalski, 291 AD2d 669 [3d Dept 2002]). Based upon the foregoing, defendant's motion to suppress all evidence obtained as a result of an unlawful arrest is denied (see Wong Sun v United States, 371 US 471 [1963]).

When a defendant is the subject of a custodial interrogation by the police, it is beyond well-settled that the police must administer Miranda warnings to the defendant (People v Paulman, 5 NY3d 122 [2005]; Miranda v Arizona, 384 US 436 [1966]). However, Miranda warnings are not required unless both the elements of "police custody" and "interrogation" are present (People v Nikac, 201 AD3d 955, 956 [2d Dept 2022]).

Whether a defendant is in police custody is "a question of fact that does not turn on the subjective intent of the police" (id.) or the "subjective beliefs of the defendant" (People v Yukl, 25 NY2d 585, 589 [1969]). Rather, the court should consider the "totality of the circumstances" in determining "whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" (People v Brown, 295 AD2d 442, 443 [2d Dept 2002]; Nikac, at 956). Factors to be weighed include: the amount of time which the defendant spent with the police, the manner, if any, in which his or her freedom was restricted, the location and atmosphere of his or her questioning, the degree of cooperation which he or she exhibited, whether he or she was apprised of his or her constitutional rights, and whether the questioning was investigatory or accusatory in nature (Id).

With respect to "interrogation" a person is subject to it when he is confronted with "express questioning or its functional equivalent," (People v Ferro, 63 NY2d 316 [1984]). "Interrogation" includes "any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect" (People v Reardon, 124 AD3d 681, 683 [2d Dept 2015]; People v Hylton, 198 AD2d 301, 301 [2d Dept 1993]). Thus, police conduct that "could not reasonably have been anticipated to evoke a declaration from the defendant" does not constitute custodial interrogation (People v Anderson, 94 AD3d 1010, 1012 [2d Dept 2012]; see also People v Lynes, 49 NY2d 286, 295 [1980]; People v Hylton, 198 AD2d 301, 301 [2d Dept 1993]). Statements made by a suspect at a preliminary stage of an investigation in response to a law enforcement agency's general inquiry do not rise to the level of custodial interrogation. (see Johnson, supra; People v Chestnut, 51 NY2d 14 [1980]; People v Gough, 203 AD3d 747 [2d Dept 2022; People v Ortega, 256 AD2d 360, 360-61 [2d Dept 1998]; ]; People v Bongiorno, 243 AD2d 719, 719-20 [2d Dept 1997]; People v Stackhouse, 160 AD2d 822, 823 [2d Dept 1990]).

Here, the statements made by defendant at the scene of the accident are admissible and not the subject of custodial interrogation. To the extent that Officer McLoughlin asked the defendant if he was ok and if he had been drinking, such questions were preliminary investigative inquiries "elicited in the course of an accident investigation" (see Berkemer v McCarty, 104 S Ct 3138 [1984]; People v Bennett, 70 NY2d 891 [1987]; Johnson, supra; Chestnut, supra; People v Huffman, 41 NY2d 29 [1976]). Therefore, inasmuch as defendant's statement that he had been drinking was not the product of "custodial interrogation" and officers were not obligated to administer Miranda warnings to him. Accordingly, defendant's motion to suppress his statement made at the scene is denied.

At the refusal hearing, the People bear the burden of establishing, by a preponderance of the evidence, that a defendant refused to submit to a chemical test after clear and proper refusal warnings were given to defendant and a persistent refusal then followed (see VTL § 1194[2][f]; People v Smith, 18 NY3d 544 [2012]; People v Morel-Gomez, 33 Misc 3d 1220(A) [S Ct, Bronx Cty 2011]; People v Camagos, 160 Misc 2d 880 [Crim Ct, Queens Cty 1993]).

Vehicle and Traffic Law § 1194(2)(f) states, in relevant 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 upon 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 [*4]unequivocal language, of the effect of such refusal and that the person persisted in the refusal."

A refusal is considered "persistent" if defendant was "... offered at least two opportunities to submit to a chemical test, at least one of which [took] place after being advised of the sanctions for refusal," (People v Thomas, 46 NY2d 100 [1978]; People v Pagan, 165 Misc 2d 255 [Crim Ct, Quens Cty 1995]). "A refusal to submit to a chemical test may be evidenced by words or conduct," (People v Massong, 105 AD2d 1154 [4th Dept 1984]; Smith, supra). In evaluating whether the defendant's words or conduct amounted to a refusal, the court must evaluate and assess the totality of the circumstances (Smith, supra). The refusal must be "intentional or willful" and "an unintentional failure to complete the test does not evidence consciousness of guilt ...,"(People v Davis, 8 Misc 3d 158 [Bronx Cty 2005]; People v Anyakora, 162 Misc 2d 47 [1993]).

Here, the IDTU video recording and testimony at the hearing sufficiently demonstrates that Officer Rivera issued sufficient refusal warnings through a Spanish language video in a manner that was clear and unequivocal. Further, it is apparent that defendant understood them and that he consented to taking the test (see VTL § 1194(4)(f); People v Cragg, 71 NY2d 926 [1988]; People v Cousar, 226 AD2d 740 [2d Dept 2015]).

Following these warnings, the Defendant then repeatedly attempted to blow into the breathalyzer machine, but the machine did not register a result. Officer Rivera attempted to explain and physically demonstrate to the Defendant the correct manner to blow into the machine. His explanation however, unlike the refusal warnings, were given in English. The Defendant again appeared to attempt to blow into the machine. The Defendant's failed attempts were deemed a refusal by Officer Rivera, however this Court cannot reasonably draw an inference that the machine's failure to register a result was due to the intentional and willful actions of the Defendant or "that the failure [of the machine] to register a [breath] sample was the result of defendant's action and not of the machine's inability to register the sample." First, the Defendant was given instructions on how to blow into the breathalyzer machine in English, when it was clear that the Defendant only spoke and understood Spanish, with limited knowledge of the English language. Rather than also providing any instructions on how to take the test also in Spanish, Officer Rivera simply proceeded as usual in English and then rushed to the conclusion that the Defendant's behavior was a refusal rather than a lack of understanding.

Further, the People failed to present any evidence at the hearing that the breathalyzer machine used in this case was in proper working order at the time it was used to test defendant's breath sample. Thus, it is plausible that the machine's failure to register a sample could be due to a machine error and not a result of Defendant's actions.

Accordingly, after assessing the totality of the circumstances and the credible evidence presented at the hearing, the People have failed to prove by a preponderance of the evidence that defendant deliberately and persistently refused by his conduct to submit to the breath test. The motion to suppress evidence relating to the Defendant's refusal to submit to the breathalyzer test is granted.

Based upon the above, the Defendant's motion to suppress the statement made by the Defendant at the scene that he had been drinking, and all tangible, non-tangible and testimonial evidence as the fruits of an unlawful arrest is denied.

Defendant's motion to preclude evidence of his purported refusal is granted.

The foregoing constitutes the opinion, decision, and order of the Court.