Appeal from an order of the Justice Court of the Town of Hamptonburgh, Orange County (Richard B. Golden, J.), entered August 29, 2009. The order granted defendant's motion to suppress evidence and, upon suppression, dismissed the accusatory instruments.

ORDERED that the order is affirmed.

After a police officer encountered defendant in the Village of Walden courtroom exhibiting glassy, bloodshot eyes, the odor of an alcoholic beverage, and signs of fatigue, he and a fellow officer followed defendant from the building, and, when they observed her backing her vehicle from its parking space, they stopped defendant. They then observed what appeared to be a child under 16 years of age sitting in the rear passenger seat of defendant's vehicle. One of the officers interviewed defendant and proceeded to administer field sobriety tests. The other officer only viewed portions of the several tests being administered to defendant and recalled that defendant had lowered a foot during the one-legged stand test and failed properly to perform a turn on the walk and turn test. When defendant blew into a field breath test device, it indicated positive for the presence of alcohol. While as yet not in custody, defendant stated that she had worked the night shift and that she had consumed alcoholic beverages, the last at about 11:00 A.M. (six hours prior to the statements). She denied being under the influence of alcohol. The second officer, whose testimony was largely cumulative to that of the other witness, overheard a similar statement and characterized as "moderate" the odor of an alcoholic beverage on defendant's breath. A blood alcohol test was subsequently administered which measured defendant's blood alcohol content as .12 of one percentum by weight. The People charged defendant with two counts of driving while intoxicated, per se and common law (Vehicle and Traffic Law § 1192 [2], [3]), endangering the welfare of a child (Penal Law § 260.10 [1]), and operating a vehicle with a back seat passenger, under 16 years old, who was unrestrained by a seat belt (Vehicle and Traffic Law § 1229-c [1] [b]). After both Justices of the Justice Court of the Village of Walden recused themselves, the matter was transferred to the Justice Court of the Town of Hamptonburgh.

Defendant moved to suppress her statements and the results of the blood alcohol test. [*2]After a hearing, at which the officer who administered the field sobriety tests did not testify, the Justice Court granted the motion to suppress the evidence, finding that the People had failed to establish probable cause for defendant's arrest, at least for driving while impaired, and dismissed the accusatory instruments. On appeal, the People certify that absent the suppressed evidence they cannot prosecute any of the charges (see CPL 450.20 [8]; 450.50 [1]).

We affirm. The hearing proof failed to establish that defendant exhibited "actual impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 [1979]). The odor of an alcoholic beverage, an admission of the consumption of alcoholic beverages six hours earlier, glassy, bloodshot eyes and a fatigued demeanor are insufficient to establish probable cause for impairment. The witnesses agreed that defendant's speech had been normal aside from being "slow," that she had otherwise exhibited no signs of mental or motor impairment, and that she had passed one of the field sobriety tests. Neither of the witnesses observed a sufficient portion of the remaining field sobriety tests administered to allow them to form an opinion as to the state of defendant's impairment, if any. Moreover, one of the officers testified that the positive reading of the field breath test was as consistent with an alcohol content below the statutory level of impairment as with a blood alcohol content above that limit. Consequently, the Justice Court properly determined that the People's proof failed to establish that there was probable cause for defendant's arrest.

Accordingly, the order is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: April 01, 2011