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Sobriety test is put aside in DWI case

One day, a DWI roadblock, indicated by signs, was set up by a uniformed police unit. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt. The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. The police officer in unit, while asking the defendant how he felt, made several observations. He noticed that the defendant’s eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath. A Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. Thereafter, the police officer ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant’s performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct the defendant was given his Miranda warnings.

Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol. The defendant was charged with violating VTL 1192(2) and 1192(3). A DWI Defense Attorney said that the defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution.

The issues to be resolved in this case are as follows: 1) whether the constitutional rights of motor vehicle drivers are violated by police stops at “Driving While Intoxicated Safety Check” roadblocks; 2) the effect of the field sobriety test taken by the defendant in the safety zone; and, 3) the suppression of the breathalyzer test.

The initial stop of the defendant’s car sufficiently restrained his freedom to result in a seizure subject to constitutional limitations. At that time the police officers lacked any indication that a crime was committed or that any criminal activity was under way. Accordingly, the seizure cannot find its justification under either common law principles or the Criminal Procedure Law. Unless the initial stop was reasonable, the subsequent acquisition of observations and test results from the defendant would be suppressible as the derivative results of an illegal seizure.

Reasonableness in this context requires the proper balancing between the privacy interests of the individual and the public interests of the state. The action of the police must be justified at its inception and be a reasonable response to the problem which it addresses.

The state’s compelling interest in highway safety permits distinctions between the privacy rights of citizens based upon whether or not they are occupants of motor vehicles. No New York appellate authority has directly passed upon the constitutionality of Driving While Intoxicated (DWI) roadblock stops but ample Federal and State court authority exists regulating various types of motor vehicle stoppages. Brief stops of motorists at permanent checkpoints to enable Federal officers to look for illegal aliens was upheld because it balanced a limited stop at a permanent checkpoint with extensive prior warnings against the exigency of a massive influx of illegal non-citizens.

Under the right circumstances, the roadblock need not be permanent or have lights or warnings but may occur in isolated areas and be a roving roadblock. Routine “traffic checks” by police officers to determine whether or not a vehicle is being operated in compliance with the Vehicle and Traffic Law is permissible when conducted in a nonarbitrary, nondiscriminatory uniform manner.

Thus, police officers, on whim or caprice and without an articulable suspicion or probable cause, may not stop the driver of a single motor vehicle. They may properly stop one or more lanes of traffic temporarily, at a roadblock in a nonarbitrary manner when a discernible need is established.

A routine stop to establish compliance with VTL regulations pertaining to licensing and registration has been sanctioned as a proper exercise of police power. The same authorized minimal intrusion to establish compliance with VTL regulations as to licensing and registration occurs when a DWI stop takes place. In the latter situation the danger to be prevented and the lifesaving aspects to the drivers and other citizenry leave no question as to the needs outweighing the inconvenience and render the intrusion totally reasonable.

Here the state is not following an “end justifying the means” theory but rather a proper exercise of its inherent power to limit in a very minor way the mobility of some of its citizens to save the lives and property of these same citizens and others.

Accordingly, the initial stop of the defendant was constitutional and the motion by defendant to dismiss the information on those grounds is denied.

On the second issue, the police officer had gone beyond the minimum threshold of routine questioning. He had instructed the defendant to position his vehicle in an area under police authority. Under all the attendant circumstances, the defendant could reasonably infer that he was in custody and had indeed been seized within the meaning of the Fourth Amendment.

Placing the driver/defendant in custody triggered certain constitutional requirements. The Miranda case and its progeny are concerned solely with verbal statements made by a defendant in custody. The warnings necessary in the case of a field sobriety test are of a slightly different nature. The field sobriety test presents a hybrid situation. The defendant is in custody and his taking of the test is the result of an interrogation. The results of the test are as damning as a verbal admission. The defendant must be warned that anything he says or does may formulate the basis for his arrest or be used against him in a court of law. While the results of the various dexterity tests are, for the most part, conduct and not speech, it is conduct that speaks louder than words.

The officers must also inform the driver/defendant that he may legitimately refuse to submit to the test, and that his refusal will not be admissible against him in a court of law. It follows that where consent was obtained, the People have the heavy burden to prove that it was a voluntary and knowing consent. The police officer, faced with a driver who refuses to take the field sobriety test, must base his determination as to the existence of probable cause to formally arrest the driver upon observations made up to that point.

Accordingly, the results of the field sobriety test are to be suppressed, and the motion made by the defendant to that end is granted.

As to the results of the dexterity tests performed at the precinct after the breathalyzer test, these are not suppressed. Any defect arising out of errors at the safety zone is attenuated. There was a clear break in any form of interrogation. Sufficient time had passed and sufficient warnings were given to justify the belief that the defendant had been returned to the status of one who was acting voluntarily after sufficient warning and was not under the undue influence of the police officer’s directions.

The final issue before the court is that part of the defendant’s motion dealing with suppression of the results of the breathalyzer test.

A breathalyzer machine determines the content of a person’s blood alcohol by analyzing the breath of the subject’s lower lungs. In simplistic terms, the individual’s breath is gathered in the machine and caused to pass through a solution which changes color in proportion to the amount of alcohol passing through it. From the degree of change in color the amount of alcohol which passed through the solution can be calculated, and the results recorded.

There is no question that the breathalyzer test is a wholly constitutional method of determining whether there is alcohol in a defendant’s system, subsequent to an arrest for driving under the influence of alcohol. In most cases involving the prosecution of a defendant for driving while intoxicated or impaired, the only tangible evidence offered against him is the result of the breathalyzer test. It has been held that the purpose of this duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence, rather, it is also to make the trial a search for the truth informed by all relevant material, much of which, because of an imbalance in investigative resources, will be exclusively in the hands of the Government.

In contrast, various courts have determined that although retesting of the original ampoule has not attained wide acceptance in the scientific community, a second sample must be taken at the same time as the original and preserved for the defendant’s independent testing While the process of preserving a second sample is within the means of the police department, and permits preservation of the sample for at least twelve months, their failure to do so goes more to the weight of the test evidence being offered than to its admissibility and provides no constitutional impediment. In one case, the Supreme Court of the United States put to rest any residual doubts as the necessity of the People to either preserve the original ampoule or breath sample or to produce and preserve a second ampoule or breath sample for the defense.

Accordingly, in the opinion of this court, the results of the breathalyzer test are not suppressed.

Police checkpoints are measures of the government to protect public safety. However, these checkpoints sometimes are abusive in nature. Here in Stephen Bilkis and Associates, our New York DWI Lawyers will help you once your rights during checkpoints were violated. Contact our New York Criminal Attorneys now for an advice.

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