On April 5 and April 17, 2024, this court held a Dunaway/Johnson/Wade/Huntley hearing. The following constitutes the court's findings of fact and conclusions of law.

At the hearing, the prosecution called two witnesses, NYPD officers Brian Bang and Christian Martinez. They also admitted video footage from the NYPD's Intoxicated Driver Testing Unit ("IDTU") and Officer Martinez's body-worn camera video footage. The court makes the following findings of fact.

Brian Bang has been a police officer with the NYPD's 111th Precinct for about 19 years. He was trained to be a police officer at the NYPD Police Academy. As a police officer, he has experience with intoxicated people. He has been to many scenes of intoxicated drivers, including those involving accidents, and he has encountered intoxicated people when responding to altercations at bars and family disputes. As a police officer, he has made about 140 arrests. Around ten were related to drunk driving. When determining whether someone might be intoxicated, he looks to see whether they smell like alcohol; have watery eyes, flushed skin, or slurred speech; or whether they are able to stand up properly.

On May 27, 2023, Officer Bang was working with his partner, Steven Giresi. Both officers were in uniform and in a marked police car. They were assigned to respond to 911 calls. At around 8:53 p.m., Officer Bang and his partner responded to a car accident on 216th Street in Queens. That is a residential one-way street that heads northbound. Upon arriving at the scene, Officer Bang was approached by a person named Samuel Ko. Officer Bang was the first police officer to arrive. Mr. Ko told Officer Bang that he saw a vehicle swerving while driving eastbound, so he thought something was up and followed the vehicle. Mr. Ko said he saw the vehicle make a turn to head southbound on 216th Street, which is the wrong way, sideswipe a couple parked vehicles, and then pull over. Mr. Ko pointed out the driver of the vehicle he was following, who was still on scene. That driver was Ms. Silone.

Officer Bang approached Ms. Silone and asked her what happened. She said, "I shouldn't have been driving, I didn't hit anything." He asked her whether "that was her vehicle," and she [*2]said yes. During this questioning, Officer Bang noticed that Ms. Silone smelled like alcohol, that her eyes were watery, and that her speech was slightly slurred. She was also standing up against a wall as though she could not stand straight on her own. Based on these observations and Mr. Ko's statements, Officer Bang arrested Ms. Silone for driving while intoxicated.

Christian Martinez has been a police officer with the NYPD's 111th Precinct in Queens for about two years. Before that, he was a police officer with the NYPD's 61st Precinct in Brooklyn for four years. He was trained to be a police officer at the NYPD Police Academy. There, he learned to recognize basic signs of intoxication, like bloodshot, watery eyes; improper balance; slurred speech; and odors of alcohol. As a police officer, he has encountered intoxicated people while on the job. He has made 75 arrests before, three of which were related to drunk driving.

On May 27, 2023, Officer Martinez was working with his partner, Officer Rollins. They were in a marked patrol car and in uniform. A patrol supervisor directed them to respond to 216th Street and 46th Avenue regarding a DWI arrest. At around 10:00 p.m., Officer Martinez and his partner arrived. Upon arriving, Officer Martinez noticed that there were three damaged vehicles on a one-way street and a couple of pedestrians on the sidewalk. His lieutenant and two other officers were already present. Officer Martinez spoke to Officer Bang, who told him about the DWI arrest. Officer Martinez observed an individual, Ms. Silone, in the back of one of the patrol cars. She was already in handcuffs and in a seatbelt.

Officer Martinez transported Ms. Silone to the 112th Precinct, which houses an IDTU. While en route, Ms. Silone asked several questions about the arrest process. Officer Martinez observed her words to be a bit incoherent. After asking these questions, Ms. Silone said, "This is what happens when I drink too much."

At the IDTU, at 11:46 p.m., the police asked Ms. Silone to submit to a chemical test of her breath. At first, she nodded, and the IDTU officer took her nod as a "yes." Then, while the officer was providing instructions on how to use the machine, Ms. Silone asked, "Can I not do this? Can I say 'No, I don't want to do this?' How does that work?" The IDTU officer then read Ms. Silone a series of warnings, which stated: If you refuse to submit to a test or any portion thereof, it will result in the immediate suspension and subsequent revocation of your driver's license or operating privilege for a minimum period of one year whether or not you are found guilty of the charges for which you have been arrested. In addition, your refusal to submit to a test or portion thereof can be introduced as evidence against you in any trial, proceeding, or hearing resulting from the arrest. I ask you again, will you take the breath test, yes or no?" Ms. Silone responded, "Well, I'm damned if I do and damned if I don't, so I guess I will." The officer finished the instructions and Ms. Silone blew into the instrument, which registered a 0.211. The police then asked Ms. Silone to perform a variety of physical coordination tests, which she did.

Afterwards, Officer Martinez read Ms. Silone her Miranda rights. At first, she seemed to waive those rights, but then upon being asked the first question about driving, she responded, "Shouldn't I wait to talk to an attorney for all of these questions?" The police responded, "You want to call — you have the phone number?" Ms. Silone said, "No, but I want to talk to an attorney before I answer any questions." She said that the attorney's phone number would be in her phone and asked where her phone was. The police responded that her phone was at their precinct. The IDTU footage then ends. However, Officer Martinez testified that the police then provided her a phone to call her attorney, she made "two or three attempts to call, but there was no answer." After these attempts, Officer Martinez claims that she "agreed to continue with the [*3]questioning." The police then resumed their questions. This is not captured by the IDTU footage.

The testimony establishes that there was no police-arranged identification procedure. Therefore, the Wade motion is denied. (See United States v. Wade, 388 U.S. 218 [1967]; see also People v. Dixon, 85 NY2d 218, 222 [1995] ["[T]he purpose of the Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness."]).

At a Dunaway/Johnson hearing, the prosecution has the burden of production. They must establish, at the outset, that the police's actions were lawful under constitutional search-and-seizure law. If they do so, the burden of proof then shifts to the defense to prove by a preponderance of the evidence that any police act was unlawful. (See, e.g., People v. Harris, 192 AD3d 151, 157-58 [2d Dep't 2020]). The court must therefore take each police act, analyze whether the prosecutor met their burden of production, and if so, analyze whether the defense met their burden of proof.

The prosecution establishes that the police lawfully approached and arrested Ms. Silone. The defense has not proven otherwise. An identified person informed Officer Bang that Ms. Silone had been swerving while driving, drove the wrong way down a one-way road, and sideswiped several parked cars. Officer Bang thus had an objective, credible reason to approach Ms. Silone and request information. Upon observing that Ms. Silone smelled like alcohol; that her eyes were watery; that her speech was slightly slurred; and that she had some trouble standing, he had probable cause to arrest her for violating V.T.L. § 1192. This, the motions challenging these police acts are denied.

However, the prosecution fails to establish that Ms. Silone voluntarily or otherwise lawfully consented to the chemical test at the IDTU. (See generally People v. Odum, 31 NY3d 344 [2018]). Accordingly, the motion to suppress the chemical test results is granted.

First, Ms. Silone's consent cannot be justified under the implied consent provisions of V.T.L. § 1194. Under that law, drivers in New York are deemed to have consented to chemical tests within two hours of their arrest. Here, however, the record fails to establish that the test was administered within these two hours.

Officer Bang testified that he arrived at the scene of the accident at around 8:53 p.m. By 10:00 p.m., the timestamp at the beginning of Officer Martinez's body-worn camera footage, Ms. Silone was already under arrest—she was already handcuffed and secured by a seatbelt in the back of a police car. Therefore, Ms. Silone was under arrest before 10:00 p.m. Indeed, she was likely under arrest well before 10:00 p.m. Officer Bang arrived at 8:53 p.m., and he did not describe a long series of events before he decided to arrest Ms. Silone. To the contrary, his testimony suggests that he arrested Ms. Silone soon after arriving: he spoke to one witness and then spoke to Ms. Silone, immediately observed indicia of intoxication, and based on those observations arrested her.

Officer Martinez first testified that Ms. Silone was under arrest at 8:50 p.m. Upon refreshing the officer's recollection with a series of leading questions and "IDTU paperwork," the prosecution then elicited from him that the "arrest time" was "10:09 p.m." But in context, [*4]"10:09 p.m." appears only to have been an administrative designation by the police department —likely the time at which the arrest was handed off to Officer Martinez, who arrived only after Ms. Silone was, in fact, under arrest. This administrative "arrest time" does not dictate when Ms. Silone was under arrest as a matter of law. As a legal matter, an arrest occurs whenever "an intrusion is of such magnitude that [an] individual's liberty of movement is significantly interrupted by police restraint." (People v. Jones, 172 AD2d 265 [1st Dep't 1991]; see also People v. Roy R., 60 Misc 3d 624 [Crim. Ct., NY County 2018] [holding that when an "arrest" occurs is a matter of when police sufficiently intrude on a person's liberty, not whenever the police record an "official time of arrest"]). "[H]andcuffs are generally recognized as a hallmark" of an arrest. (United States v. Familetti, 878 F.3d 53 [2d Circ. 2017] [quoting United States v. Newton, 369 F.3d 659, 676 [2d Cir. 2004]]). And Ms. Silone was in the back of a police car, handcuffed, and secured with a seatbelt before Officer Martinez arrived at 10:00 p.m.

Thus, the record does not substantiate that Ms. Silone was arrested within two hours before the chemical test at 11:46 p.m. To do so, the record would need to establish that Ms. Silone was, in fact, handcuffed and arrested by Officer Bang only after 9:46 p.m. Given Officer Bang's testimony, that does not seem likely, let alone established prima facie. Thus, the prosecution fails to establish that Ms. Silone's consent was justified under the implied consent provisions of V.T.L. § 1194.

Second, Ms. Silone's consent cannot be justified as otherwise voluntary. To be sure, the implied consent window is not the end of every consent analysis relating to chemical tests. A person is free to consent to searches, including to a chemical search of their breath. (Odum, 31 NY3d at 346 [citing People v. Atkins, 85 NY2d 1007 [1995]]). However, the law demands that such consent be voluntary. Here, it was not. Before Ms. Silone provided her breath sample, she asked, "Can I not do this? Can I say 'No, I don't want to do this?'" The officer then "warned—inaccurately—that if [s]he refused to submit to the test or any portion thereof, it would be introduced as evidence against [her] in any trial proceeding resulting from the arrest." (See Odum, 31 NY3d at 346 [involving the same problem]). This warning was "inaccurate" because "more than two hours had passed since defendant's arrest," so, in fact, her refusal to submit to the test could not be introduced as evidence against her in any future trial proceeding. (See id. at 350-53). The record is clear that this inaccurate warning was the only reason Ms. Silone proceeded with the test. Upon hearing it, she responded, "Well, I'm damned if I do, and damned if I don't, so I guess I will." As Ms. Silone's consent was therefore involuntary, the prosecution fails to establish that the breath result was lawfully obtained under this theory, as well.

Accordingly, the results of the chemical test are suppressed.

The prosecution has filed C.P.L. § 710.30[1][a] notice for three groups of Ms. Silone's alleged statements: (1) statements made at the scene of the accident before the arrest; (2) statements made while in a police car; and (3) statements made post-Miranda warnings at the IDTU. The court denies suppression to the first two groups of statements, but grants suppression for the third.

First, Ms. Silone's alleged statements made at the scene of the accident before she was under arrest did not require Miranda warnings, as they were not made while she was in custody. [*5](See generally People v. Lopez, 81 Misc 3d 1233[A] [Crim. Ct., Queens County 2024] [discussing the law around this]). Nor does the record indicate any issues with these statements that would arise under traditional voluntariness doctrines.

Second, upon review of Officer Martinez's body-worn camera footage, Ms. Silone's alleged statements made in the police car were spontaneous. Therefore, they did not violate Miranda. (See generally People v. Corey, 209 AD3d 1306 [4th Dep't 2022]). The record does not indicate any issues with these statements that would arise under traditional voluntariness doctrines here, either.

Finally, however, the statements made after Ms. Silone told the police, "I want to talk to an attorney before I answer any questions," must be suppressed. By making this statement, Ms. Silone unequivocally invoked her indelible right to counsel. (See, e.g., People v. Harris, 93 AD3d 58 [2d Dep't 2012]). Under our State Constitution, "a suspect in custody who unequivocally requests the assistance of counsel may not be questioned further in the absence of an attorney." (Id. at 66). "A defendant's unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of State constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant." (Id.). Here, Officer Martinez blatantly violated Ms. Silone's indelible right to counsel by continuing to question her after she unequivocally invoked her indelible right while in custody at the police precinct's IDTU. All her statements flowing after her invocation are therefore suppressed.

The foregoing constitutes the order and decision of the court.