The defendant is charged with Driving While Intoxicated Per Se in violation of VTL 1192(2), Driving While Intoxicated in violation of VTL 1192(3) and Leaving the Scene of an Incident Without Reporting in violation of VTL 600(1). A Huntley, Dunaway and Mapp hearing was held on March 28, 2007 and continued on March 30, 2007, to determine the admissibility at trial of evidence obtained against the defendant. The parties were given the opportunity to submit written closing statements, which have since been received in chambers.

The sole witness at the hearing was Police Officer Douglas Nassisi, a police officer with the Suffolk County Police Department, who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

Officer Nassisi, Shield No. 4824, Command 410, has been a police officer with the Suffolk County Police Department for 13 years, and has made approximately 500 DWI arrests. He is presently assigned to the patrol division, overnight squad. On April 2, 2006, Officer Nassisi was on patrol in a marked patrol car, working a 9:00 p.m. to 7:00 a.m. tour of duty. At approximately 3:16 a.m. on that date, the officer was on Jericho Turnpike in Smithtown, Town of Smithtown, Suffolk County, when he received a radio call that a car had struck a building at Edgewood and Route 25 in Smithtown. One to two minutes later, while responding to the call, the officer received a second radio [*2]call that a vehicle had struck a parked car in front of the Myst Bar on Main Street in Smithtown and had left the scene.

The officer arrived at the scene of the first radio call and observed that a black car had struck a building located at a gas station on Edgewood and Route 25, also known as Main Street. Two marked patrol cars had also responded to the call. After speaking briefly with the police officers already at the scene, Officer Nassisi proceeded to the location reported in the second radio call. When the officer arrived at the Myst Bar, located about one mile away, he observed that a parked Nissan Sentra had been hit and had sustained body damage. Officer Nassisi canvassed the area in front of the bar for witnesses and located two witnesses to the accident who stated that a black car, identified by one of the witnesses as an Infiniti, had struck the parked vehicle and left the scene at approximately 3:15 a.m.

Officer Nassisi returned to the location reported in the first radio call, observing that the car that had struck the gas station building was a black 2001 Infiniti. The officer approached three people who were standing directly behind the Infiniti and asked who had been driving the vehicle. The defendant came forward and said he was the driver. The officer asked the defendant for his driver's license and the vehicle registration, which were produced. The officer then asked the defendant to come to his patrol car to fill out a report of what had happened at both accident scenes. The officer took the defendant to the trunk area at the back of the officer's patrol car, where the defendant gave a written statement on the motor vehicle accident supplemental report (People's exhibit 2 in evidence). The statement, which is comprised of a single sentence, reads "I was traveling (illegible) a car hit (illegible) side swiped."

While speaking with the defendant, Officer Nassisi noticed the odor of alcohol on the defendant's breath and asked him if he'd been drinking. The defendant answered that he'd had a couple of drinks and that he was drunk. The defendant agreed to take field sobriety tests. The officer administered the horizontal gaze nystagmus (HGN) test to the defendant, which he failed. The defendant refused to perform the walk and turn and the one-legged stand tests, stating that he was too drunk and did not want to take them. The defendant submitted to an SD-2 alco-sensor field breath test, which he failed with a .24% reading.

At approximately 4:16 a.m., Officer Nassisi placed the defendant under arrest for Driving While Intoxicated and [*3]transported him to the Fourth Precinct in Hauppauge, New York. Following their arrival, Officer Nassisi read the "chemical test request" portion of the Alcohol/Drug Influence Report (AIR) to the defendant at approximately 4:28 a.m. (People's exhibit 2 in evidence). The defendant initialed the portion of the form containing the printed warnings of the consequences of refusing, wrote the word "consent" in the space provided, and signed his name beneath it. A technician arrived at the precinct and administered an Intoxilyzer 5000 breath test to the defendant at 5:14 a.m., which registered an insufficient sample. A second test was administered at 5:31 a.m., which resulted in a blood alcohol content reading of .20%.

The officer next read the Miranda warnings portion of the form to the defendant and the questions printed in that portion of the form, recording the defendant's responses in the spaces provided (People's Exhibit 3 in evidence). The defendant answered "yes" when asked if he understood each of the rights explained by the officer, and "no" when asked if he wished to contact a lawyer. In response to the question "Having these rights in mind, do you wish to talk to me now, without a lawyer?," the defendant answered "no," which the officer recorded on the AIR form. Soon thereafter, the defendant stated that he was willing to talk to the officer without a lawyer, but the officer did not record the defendant's change of mind or the time on the AIR form. Officer Nassisi then asked the defendant the questions printed on the bottom portion of the AIR form, again recording the defendant's answers on the form. The defendant's responses to the questions on the form indicate that the defendant had been on his way home from the Myst Bar, where he'd been drinking alcoholic beverages and had three to four Bud beers (People's Exhibit 3 in evidence).

Officer Nassisi, in the course of his investigation of the hit and run accident at the Myst Bar, had an articulable, objective basis to approach the defendant and the two other persons at the scene of the gas station accident and request information, as the vehicle involved in that accident matched the description of the vehicle reportedly involved in the hit and run accident which had taken place only minutes earlier and a mile away. See, People v. Hollman, 79 NY2d 181, 184 (1992); People v. De Bour, 40 NY2d 210, 223 (1976); see also, People v. Asher, 2007 NY Slip Op 27248 (App. Term, 9th & 10th Jud. Dists. 2007). The defendant's admissions that he had operated the vehicle and that he was drunk, together with the officer's observations of the odor of alcohol on the defendant's breath and his failure of the [*4]HGN and SD-2 field tests, were sufficient to provide the officer with reasonable grounds to believe the defendant had been driving in violation of VTL 1192, and provided probable cause for the arrest for Driving While Intoxicated. See, People v. Kowalski, 291 AD2d 669 (3rd Dept. 2002); People v. Asher, supra ; People v. Cullison, 8 Misc 3d 128A, 2005 NY Slip Op 50967U (App. Term, 9th & 10th Jud. Dists. 2005); CPL 140.10(1). The Court therefore finds that the evidence obtained as a result of the defendant's arrest is not subject to suppression for lack of probable cause.

A police officer conducting an investigation at the scene of a traffic accident is not required to administer Miranda warnings where the investigation has not yet reached the custodial stage. See, People v. Dougal, 266 AD2d 574 (3rd Dept. 1999), lv. den. 94 NY2d 879 (2000); People v. Aia, 105 AD2d 592 (3rd Dept. 1984); People v. Atwood, 2 AD3d 1331 (4th Dept. 2003), lv. den. 3 NY3d 636 (2004). Temporary detentions for the investigation of traffic-related matters are generally non-custodial in nature and do not require the administration of Miranda warnings. See, People v. Mackenzie, 9 Misc 3d 129A, 2005 NY Slip Op 51535U (App. Term, 9th & 10th Jud. Dists. 2005), lv. den. 5 NY3d 807 (2005); People v. Myers, 1 AD3d 382, 383 (2d Dept. 2003), lv. den. 1 NY3d 631 (2004); see also People v. Bennett, 70 NY2d 891 (1987). The applicable standard for determining whether an interrogation is or is not custodial is whether a reasonable person, innocent of any crime, would have believed he was free to leave had he been in the defendant's position. See, People v. Yukl, 25 NY2d 585, 589 (1969), cert. den. 400 U.S. 851; People v. Fenti, 175 AD2d 598 (4th Dept. 1999). The issue of custody is not determined by the subjective beliefs of the individual defendant or of the police officer, except to the extent that his or her belief is communicated to the defendant. See, People v. Joy, 114 AD2d 517 (2d Dept. 1985); People v. Fenti, supra .

Officer Nassisi's questioning of the defendant at the scene of the gas station accident occurred in a non-custodial setting and was investigatory in nature. The evidence at the hearing did not suggest that the defendant's statements at the accident scene were obtained by means of coercion or unfairness. The officer thus was not required to administer Miranda warnings before conducting the initial investigation. See, People v. Mackenzie, supra ; People v. Parulski, 277 AD2d 907 (4th Dept. 2000). The defendant's admission of operation, his written statement on the motor vehicle accident supplemental report, and his statements that he'd had a couple of drinks and that he was drunk, were not obtained in violation of his Miranda rights and are not subject to suppression at trial. [*5]

Results of field sobriety tests are not deemed testimonial or communicative, and evidence of a defendant's performance of such tests is admissible, in the absence of Miranda warnings, as probative of the issue of intoxication. See, People v. Berg, 92 NY2d 701 (1999); People v. DiNonno, 171 Misc 2d 335 (App. Term, 9th & 10th Jud. Dists. 1997); People v. DeRojas, 196 Misc 2d 171 (App. Term, 9th & 10th Jud. Dists. 2003), lv. den. 100 NY2d 593 (2003). Evidence of a defendant's refusal to perform such tests is also admissible, as long as the refusal was not the product of custodial interrogation. See, People v. Berg, supra . The Court accordingly finds that evidence of the defendant's performance of the HGN test and his refusal to perform the walk and turn and one-legged stand tests is admissible at trial. See, People v. Berg, supra , 92 NY2d at 705. The defendant's statement that he was too drunk to perform the tests is also admissible, as it was not obtained as a result of custodial interrogation. See, People v. Berg, supra .

Alcohol screening tests are considered sufficiently reliable to indicate the presence of alcohol in a person's breath for the purpose of establishing probable cause for an arrest, but are not sufficiently reliable to determine the actual blood alcohol concentration. See, People v. Thomas, 121 AD2d 73, 76, 78-79 (4th Dept. 1986), affd. 70 NY2d 823 (1987). Unlike field coordination tests, alcohol screening tests are not probative of the issue of intoxication and the results are not admissible at trial (see, People v. Thomas, supra , 70 NY2d at 825; People v. Wright, 1 Misc 3d 133A, 781 NYS2d 627 [App. Term, 9th & 10th Jud. Dists. 2003]), unless probative of some other issue (see, People v. Thomas, supra , 70 NY2d at 825; People v. MacDonald, 227 AD2d 672 [3rd Dept. 1996], affd. 89 NY2d 908 [1996]; VTL 1194[2]). The defendant's SD-2 field breath test results therefore shall not be admitted into evidence at trial unless the relevance is otherwise demonstrated.

When the Miranda warnings were read to the defendant, he unequivocally indicated that he did not wish to talk to the officer without a lawyer (see, People's Exhibit 3), thereby invoking both his right to remain silent and his right to counsel. A suspect's right to remain silent, once invoked, must be "scrupulously honored," and "he may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime." People v. Ferro, 63 NY2d 316, 322 (1984), cert. den. 472 U.S. 1007 (1985), quoting Miranda v. Arizona, 384 U.S. 436 (1966). Although the officer had recorded the defendant's responses on the AIR form up to that point, he significantly failed to record the defendant's subsequent waiver of his Miranda rights or the time of the [*6]waiver. The evidence at the hearing did not establish that there had been a sufficiently pronounced break between the defendant's invocation of his Miranda rights and his purported waiver of those rights, nor that the defendant had again been advised of his Miranda rights before the officer proceeded with the questions at the bottom of the AIR form, which elicited incriminating responses from the defendant. See, People v. Ferro, supra ; see also, People v. Ferrara,158 Misc 2d 671 (Criminal Ct., Richmond Co. 1993).The evidence at the hearing thus was not sufficient to establish that the defendant knowingly and voluntarily waived his right to remain silent and his right to counsel, and his responses to the questions in the bottom portion of the AIR form shall be suppressed at trial.

This constitutes the decision and order of the Court.

The parties are directed to appear on the New Court Date indicated below.

New Court Date:

Dated:J.D.C.