The defendant is charged with Driving While Intoxicated in violation of VTL 1192(3), Speeding in violation of VTL 1180(d), and Failing to Maintain Lane in violation of VTL 1128(a). On September 28, 2007, a Dunaway, Huntley and refusal hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including evidence of statements allegedly made by the defendant and evidence of the defendant's refusal to submit to a breath test. The parties were given the opportunity to submit written closing statements, which have now been received.

The sole witness at the hearing was Police Officer Michael D. Messina, 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 Messina has been a police officer with the

Suffolk County Police Department for two years, and is assigned to the Sixth Precinct. At the time of the alleged incident, he had made approximately twelve DWI arrests. On December 29, 2006, Officer Messina was on patrol in a marked patrol car, working a 9:00 p.m. to 7:00 a.m. tour of duty. At approximately 3:00 a.m. on December 29, 2006, the officer was driving eastbound on Route 25 in North Babylon, Town of Babylon, County of Suffolk, when he observed a purple Dodge Suburban traveling ahead of him in the same direction. The vehicle made an extremely wide left turn onto Coram-Mt. Sinai Road in North Babylon, crossed over the white line marking the shoulder of the roadway and just missed striking the curb. After making the turn, the vehicle accelerated to an estimated 62 miles per hour in a 30 mile per hour zone. Officer Messina followed the vehicle for approximately one minute, remaining approximately 50 to 100 feet behind it, and observed [*2]that the vehicle failed to maintain its lane, swerved onto the right shoulder and just missed the grass.

Officer Messina put on his emergency lights and pulled the vehicle over. The officer approached the vehicle and asked the driver, whom he identified as the defendant, for her license and registration. As the defendant produced the requested documents, the officer observed that her eyes were bloodshot and watery. Although her speech was not slurred, the officer smelled the odor of an alcoholic beverage on the defendant's breath. The officer asked the defendant if she'd been drinking, and she said no. He then asked the defendant to exit her vehicle and to stand in back of the vehicle, observing as she did so that the defendant was unsteady on her feet and had to brace herself against her vehicle twice.

Officer Messina administered field sobriety tests to the defendant, observing that she exhibited mild horizontal gaze nystagmus (HGN) on one of the three sets of HGN tests, and that she stepped off the imaginary line once when performing the walk and turn test. The officer also administered the SD-2 alco-sensor field breath test to the defendant, which resulted in a reading of .12. Having concluded at this point that the defendant was intoxicated, Officer Messina decided to place her under arrest and testified that all that remained to be done was to place the cuffs on her. Before doing so, Officer Messina asked the defendant if she was sure she hadn't been drinking. The defendant replied that she'd had two drinks, and also stated "To be honest with you, they were Long Island iced teas," and "My last drink was a half hour ago."

Officer Messina placed the defendant under arrest for Driving While Intoxicated and transported her to the Sixth Precinct. At approximated 3:48 a.m., after processing the defendant, Officer Messina read the portion of the Alcohol/Drug Influence Report (AIR) containing the chemical test request and refusal warnings to the defendant (People's Exhibit 1). He then handed her the form to read. The defendant initialed the portion of the AIR form containing the printed warnings of the consequences of refusing, wrote the word "refuse" and signed the form. The officer did not repeat the request or warnings, but testified that the defendant was "adamant" in her refusal. There was no testimony, however, that she made any verbal statement or gesture to express her refusal.

Officer Messina 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 1). The defendant indicated that she understood each of the rights explained by the officer. When asked if she wished to contact a lawyer, she stated "not right now, no." When asked if she wished to talk to the officer without a lawyer, she answered yes. Officer Messina then asked the defendant the questions printed on the bottom portion of the AIR form, again recording the defendant's answers on the form. In response to the questions "Where were you going," and "Where did you start from," the defendant answered "home" [*3]and "O'Briens," respectively, which the officer testified was a reference to O'Brien's Pub.

Officer Messina's observations that the defendant's vehicle was speeding and failed to maintain its lane, in violation of the Vehicle and Traffic Law, provided the officer with a lawful basis for stopping the vehicle. People v. Robinson, 97 NY2d 341 (2001); People v. Irizarry, 282 AD2d 483 (2d Dept. 2001), lv. den. 97 NY2d 729 (2002); VTL 1128(a), 1180(d). The manner in which the defendant drove her vehicle and her physical condition were sufficient to provide the officer with reasonable grounds to believe the defendant had been driving in violation of VTL 1192, and together with her performance of the field tests and admission that she had consumed an alcoholic beverage, provided probable cause for the arrest for Driving While Intoxicated. See, People v. Kowalski, 291 AD2d 669 (3rd Dept. 2002); People v. Lamb, 235 AD2d 829, 830-831 (3rd Dept. 1997); People v. Kalwiss, 6 Misc 3d 129A, 2005 NY Slip Op 50057U (App. Term, 9th & 10th Jud. Dists. 2005); People v. McClaney, 135 AD2d 901 (3rd Dept. 1987); CPL 140.10(1). The Court accordingly finds that the defendant's stop and arrest were based on probable cause, and the evidence obtained as a result thereof is not subject to suppression on that ground.

A defendant who has been temporarily detained pursuant to a routine traffic stop is not considered to be in custody for Miranda purposes. See, People v. Myers, 1 AD3d 382, 383 (2d Dept. 2003), lv. den. 1 NY3d 631 (2004); People v. Parris, 26 AD3d 393 (2d Dept. 2006), lv. den. 6 NY3d 851 (2006); People v. Hasenflue, 252 AD2d 829 (3rd Dept. 1998), lv. den. 92 NY2d 982 (1998); see also, 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). A police officer conducting a reasonable initial interrogation during such a stop is not required to administer Miranda warnings where the investigation has not yet reached the custodial stage. See, People v. Aia, 105 AD2d 592 (3rd Dept. 1984); People v. Atwood, 2 AD3d 1331 (4th Dept. 2003), lv. den. 3 NY3d 636 (2004). The defendant's first statement, in which she denied that she had been drinking, was made in the context of a permissible initial roadside investigation and thus is admissible into evidence at trial.

After administering the field sobriety and alco-sensor tests to the defendant, Officer Messina reached the conclusion that the defendant was intoxicated. The defendant was no longer free to leave and, according to the officer's testimony, all that remained was to place the cuffs on her. At this point, the investigation had progressed beyond the type of brief inquiry that may be conducted without Miranda warnings. See, e.g., People v. Steffens, 2005 NY Slip Op 52167U, 10 Misc 3d 1065A (District Ct., Nassau Co. 2005). A reasonable person, innocent of any crime, would not have thought he was free to leave, had he found himself in the defendant's position. See, People v. Yukl, 25 NY2d 585, 589 (1969), cert. den. 400 U.S. 851; [*4]People v. Ellerbe, 265 AD2d 569 (2d Dept. 1999), lv. den. 94 NY2d 903 (2000); People v. Foy, 26 AD3d 344 (2d Dept. 2006).

When the officer asked the defendant if she was sure she hadn't been drinking, his question was not designed to clarify the situation but to obtain an inculpatory admission. See, People v. Hardy, 5 AD3d 792, 793 (2d Dept. 2004), lv. den. 3 NY3d 641 (2004), lv. den. on reconsideration 3 NY3d 675 (2004); People v. Long, 27 AD3d 1053 (4th Dept. 2006). The Court accordingly finds that the defendant was in custody when the statements were elicited from her that she'd had two drinks, that they were Long Island iced teas, and that her last drink was a half hour ago. Because the Miranda warnings had not yet been administered to the defendant, these statements shall not be admitted into evidence at trial. See, People v. Steffens, supra.

As indicated at the hearing, it is this Court's practice not to admit a defendant's SD-2 field breath test results or HGN test results into evidence at trial, although such evidence is admissible at a suppression hearing for the purpose of establishing probable cause for an arrest.

With respect to the refusal issue, in order for evidence of a defendant's refusal to submit to a chemical test to be admissible at trial, the People must show that the request was made within two hours of the defendant's arrest (see, VTL 1194[2][a]; People v. Brol, 81 AD2d 739 [4th Dept. 1981]), and that he "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that [he] persisted in the refusal." VTL 1194(2)(f); see also, People v. Thomas, 46 NY2d 100, 108 (1978).

The timeliness of Officer Messina's request that the defendant submit to a chemical test is not at issue, as the request was made well within the requisite two hour period, and the refusal warnings administered to the defendant from the AIR form complied with statutory requirements. The evidence offered at the hearing was not sufficient, however, to establish that the defendant persisted in her refusal. In response to a single request that she submit to a chemical test, the defendant initialed the section of the AIR form containing the printed warnings of the consequences of refusing, wrote the word "refuse" and signed the form. The officer made no further requests for a chemical test, and his testimony that the defendant was "adamant" in her refusal was conclusory. No testimony was elicited to show in what way the defendant continued to refuse to submit to a chemical test, either through her words or conduct. The People thus have failed to meet their burden of demonstrating that the defendant persisted in her refusal, and evidence of the refusal shall not be admissible at trial. See, VTL 1194(2)(f).

Finally the defendant's responses to the questions printed on the AIR, including her response that she was going home and had started from O'Brien's, shall be admissible into evidence at trial, as these responses were made after the Miranda warnings had been read to the defendant, there is no evidence of coercion, and the defendant had [*5]voluntarily waived her constitutional rights.

This constitutes the decision and order of the Court.

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

J.D.C.

Thomas J. Spota, III, Esq.

Suffolk County District Attorney

For The People

400 Carleton Avenue

Central Islip, NY 11722

BY: Scott Gross, Esq.

Assistant District Attorney

Castro & Trodden, LLC

Attorneys for Defendant

1158 Jericho Turnpike

Suite 2

Commack, NY 11725

BY: Brian A. Trodden