New York City Police Officer’s refusal to provide Defendant an opportunity to call counsel results in Suppression of Refusal in Driving While Intoxicated (DWI) case

Demand an attorney – in New York, one has the indelible right to counsel once the demand is made. This has tremendous importance. The right to counsel, the invocation of that right in New York, can lead to the suppression of evidence. This can occur even in Driving While Intoxicated (DWI) cases. Here, this New York City Criminal Defendant demanded his attorney before providing a breath sample, a breath test, that was later suppressed because he asserted this right.

The Defendant here was charged with Reckless driving (Vehicle and Traffic Law §1212), operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §1192 [3]); overtaking a Vehicle on the left (Vehicle and Traffic Law §1163-c) and an equipment violation. As the case often starts, the motorist is stopped and the officer approaches the car. “The defendant was the only person in the vehicle. The officer asked the defendant for his license and registration and through the open window smelled alcohol on the defendant’s breath. Additionally, that the defendant had bloodshot, blurry eyes and his speech was slurred….The defendant was given a portable breath test. The device used had not been calibrated in months. Nevertheless, the defendant registered over a 0.1 blood alcohol content (BAC).” The motorist was arrested and taken to the police station for test to determine his BAC.  At the station, the following colloquy ensued:

The entire exchange took place in about two minutes: the officer announced the start time as 5:43 am and the ending time as 5:45am. When the defendant was asked if he was consenting to a breath test, the defendant shook his head side-to-side and stated: “Until I speak to my lawyer, not —.” The officer interrupted and asked the defendant if he was consenting: “yes or no.” The defendant replied: “I am saying no because I don’t have a lawyer —.” The officer interrupted again and then quickly read a lengthy warning pertaining to the consequences of refusing to take a breath test. The officer again asked the defendant: “I will ask you again, will you take this breath test?” The defendant replied: “I will say no because I don’t have a lawyer and I don’t know what to do —.” Again the defendant was cut off. The officer then asked the defendant if he would take a physical coordination test. The defendant shook his head and said: “I am not taking anything until I get a lawyer.” The defendant was administered the Miranda warnings by another officer. When asked if he understood his right to remain silent and that the statement could be used in court, the defendant replied to each question: “Yes sir.” When it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.” When finally asked if he wanted to waive these rights and answer questions, the defendant stated: “Not unless I have a lawyer.” The video then ends.

The fourth amendment prohibits “unreasonable searches,” and case law establish that the administration of a breath test is a search (Birchfield v. North Dakota, — US &mdash, 2016 WL 3434398 [2016]; Missouri v. McNeely, 569 US &mdash, 133 S Ct 1552, 1558 [2013]; Skinner v. Railway Labor Executives’ Ass’n, 489 US 602, 61617 [1989]; Schmerber v. California, 384 US 757, 767 [1966]; People v. Kates, 53 NY2d 591, 594-95 [1981]). Here the Defendant was administered a breath test pursuant to a stop supported by probable cause – he was swerving over the double yellow lines. Again, as is often the case, the court notes what the officer observed to support probable cause of an arrest for the motorist’s driving under the influence of alcohol:

After lawfully stopping the vehicle, Officer Droge observed that the defendant had a strong odor of alcohol on his breath, bloodshot and blurry eyes. Additionally, the defendant failed a field sobriety test and was unsteady on his feet. Based upon these facts, the officer had probable cause to arrest the defendant for driving while intoxicated (see People v. Vargas, 123 AD3d 1149 [2d Dept 2014] [defendant’s appearance combined with the smell of alcohol emanating from him and his failure of a field sobriety test gave officer probable cause to arrest for driving while intoxicated]; People v. Tieman, 112 AD3d 975 [2d Dept 2013] [glassy eyes combined with odor of alcohol emanating from defendant’s breath combined with erratic driving gave the police probable cause to arrest the defendant for violating Vehicle and Traffic Law §1192]).

In regards to the refusal to take a breath test, The Court of Appeals has recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. See People v. Washington, 23 NY3d 228 [2014]; People v. Smith, 18 NY3d 544 [2012]; People v. Gursey, 22 NY2d 224 [1968]). Indeed, “[i]f the defendant requests counsel, he is to be afforded the opportunity to contact counsel …However, this opportunity cannot unduly delay the administration of the chemical test…The denial of this opportunity will result in the suppression of the refusal.” (citations omitted).

The court finds that the defendant specifically and unequivocally requested counsel prior to refusing to take the chemical test…Here, the officer ignored what the defendant was saying or attempting to say pertaining to counsel (see People v. Mora-Hernandez, 77 AD3d 531 [1st Dept 2010]). Therefore, the officer never took any steps to enable the suspect to attempt to promptly reach an attorney….The defendant’s multiple requests were sufficiently specific to indicate that the defendant wanted to consult with an attorney prior to making his decision to refuse or consent to chemical testing (see People v. Sanciu, 49 Misc 3d 430 [Crim Ct, Kings County 2015]). The testing officer did not afford the defendant the opportunity to contact his lawyer (see People v. Keener, 138 AD3d 1162 [3d Dept 2016]).

The case is The People v. Nieves, 2016QN009031, NYLJ 1202763336095, at *1 (Crim., QU, Decided July 8, 2016). Should you be accused or facing Driving While Intoxicated Charges, you have the right to an attorney – Call The Law Offices of Cory H. Morris – 631-450-2515.

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