Defendant was never seen driving

The defendant was arrested and charged with Common Law Driving While Intoxicated and Failure to Produce License, on October 30, 2005 at 8:43 A.M. Later that morning he was arraigned and judge suspended the defendant’s driver’s license for failure to submit to the breathalyzer test. Finally, the court set bail in the amount of $2,500.00 cash or bond. The matter was eventually set down for a Probable Cause hearing on January 27, 2006.

The People called the arresting Webster Police Officer as the their only witness for said hearing. The officer testified that on October 30, 2005, at approximately 8:43 A.M. while he was on routine patrol, he received a 911 call to respond to a man slumped over the wheel of his car, which was located in the ESL parking lot on Ridge Road in the Town of Webster. Upon his arrival he observed a blue minivan, which was not in a designated parking spot.

The minivan was facing east and apparently in the middle of the parking lot. The defendant’s vehicle was surrounded by a number of individuals. Upon approaching the vehicle, the officer observed that the defendant, who appeared to be asleep was behind the wheel. As a result, the officer opened the driver’s door and vigorously shook the defendant. Officer Burns was able to detect that the defendant had a pulse and was breathing. The defendant then began to mumble something to the officer. The officer again shook the defendant and inquired as to whether the defendant had any relevant medical issues. This time the defendant stated that he was fine and was coming from a friend’s house. The officer asked him if he was diabetic or epileptic.

The defendant advised the officer that he did not suffer from any of those conditions. The officer ordered the defendant out of the vehicle at this time, whereupon the defendant was observed to stumble. The officer observed him lean back to get his balance. During that time the officer detected a strong odor of an alcoholic beverage on the defendant’s breath and observed that the defendant had red, blood shot eyes, and that the defendant’s speech was slurred.

The defendant could not produce a driver’s license, but did identify himself as JD.

At that time the defendant was asked to perform various roadside tests. The first test was the “Alphabet Test”. The defendant was asked to recite the alphabet from “C” to “V”. The defendant missed the letters G, H and I and recited “X, Y and Z”. As a result, the officer testified that the defendant failed the test. The defendant was then asked to perform the “Finger to Nose Test”. The officer testified that the defendant failed this test because he touched his lip with his right index finger and touched his left nostril with this left index finger. The officer then performed the Horizontal Gaze Test. The officer testified, that based on his observations of the defendant’s eyes, the defendant failed this test. Next the defendant was asked to perform the “Walk and Turn” Test. The officer testified that the defendant failed this test, because he stepped off the yellow line that was used for the test, and that the defendant raised his arms while he walked.

Based on his observations of the defendant, the officer formed the opinion that the defendant was not mentally and physically capable of driving his vehicle. He then arrested him for driving while intoxicated. While still in the ESL parking lot the arresting officer then advised the defendant of his Miranda rights. The defendant indicated that he understood his rights and agreed to speak to the officer.

The officer also testified that he took a written statement from a certain MR who was the woman who supposedly called 911. That statement was presented into evidence.

The written statement indicated among other things, that MR had turned off the engine of the defendant’s minivan, when she opened the door of the vehicle to examine the defendant.

The defense objected to said written statement being entered into evidence on three grounds.

First, the pre-trial hearings had previously been adjourned, so this was the second time that said witness was not produced by the people. Second, the written statement of the witness was hearsay. Third, because failure to produce said witness violated the defendant’s right of confrontation.

On cross-examination the officer indicated that he found an open bottle of Rum which was found in the front passenger side of the defendant’s vehicle. The 357 ml bottle of rum was entered into evidence by defense counsel. The officer testified that two-thirds of the rum was missing. However, the officer conceded he did not know who consumed the missing rum or when it was consumed. The officer testified that he never saw the defendant operate the vehicle, and that the car was not running when he arrived on the scene. In fact, he testified that he did not observe a key in the vehicle’s ignition. Officer Burns testified that he had been working the night shift and that he had previously passed by the location in question, without noticing the defendant’s van. As a result, he did not know when the defendant’s van arrived at the scene.

The police officer also testified to providing the defendant with his Miranda rights. The officer testified that the defendant both understood his rights and that the defendant agreed to speak with him. The officer further testified that no promises or threats were made to get the defendant to speak to him. The court finds the testimony of the officer to be credible.

Based on the evidence presented the Supreme Court is of the opinion that the burden relative to the voluntariness of the defendant’s statements have been met. As a result, the motion to suppress the defendant’s statements was denied.

As regards the issue of admissibility, defense counsel objects, based on hearsay grounds, without said witness being called to testify. Instead, the statement was offered into evidence after the officer testified that he took the statement from the witness.

While the Criminal Procedure Law contemplates suppression hearings in regard to such areas as confessions, searches, and identification, there is no mention of probable cause hearings. In any event, the only caveat is that a finding of probable cause cannot be based solely on hearsay evidence.

In this case there is independent evidence of the defendant’s intoxication. In particular there is the direct observations of the defendant by the arresting officer, who testified to seeing the defendant asleep behind the wheel of his minivan, to observing the defendant displaying physical indicia of intoxication and to the defendant’s failure of the various roadside tests.

As a result, the written statement of MR, who allegedly called 911 to report seeing the defendant slumped over the wheel of his vehicle, is admitted over the objection of the defendant.

Based on the above reasoning the Court found the remaining issues raised by the defendant in opposition to the entry into evidence of the written witness statement to be without merit.

On the issue of probable cause, neither the arresting officer nor the reporting witness ever saw the defendant operating a vehicle. However, it is clear that operation of a motor vehicle can be established by circumstantial evidence. Observation of the defendant actually driving a motor vehicle is not a necessary element of Driving While Intoxicated.

Despite the fact that the defendant was never observed driving the van in which he was found, the evidence produced at the probable cause hearing established that the defendant was observed at about 8:43 A.M. behind the wheel of a motor vehicle, whose engine was running; that there was an open bottle of rum found next to the defendant; that the defendant was observed to be asleep by the reporting witness and the arresting officer; that the defendant’s vehicle was located in a parking lot, but was not in a designated parking spot; that no one other than the defendant was in the vehicle; that the defendant exhibited various indicia of intoxication; that the defendant failed various road side sobriety tests; that the defendant admitted consuming beer; and that the defendant admitted to driving the vehicle “earlier”.

The evidence produced at the Probable Cause hearing appears reliable and sets out facts and circumstances which collectively were of such weight and persuasiveness that would convince a person of ordinary intelligence, judgment and experience that it is reasonably likely and more probably than not, that the offenses charged herein were committed and that the defendant committed them. Therefore defendant’s motion to suppress use of all tangible evidence because of a lack of probable cause to arrest the defendant was denied by the Court.

The written statement of the reporting witness was deemed admissible into evidence for purposes of the pre-trial suppression hearing. The defendant’s motions to suppress the statements of the defendant and to suppress any tangible evidence obtained by the People were denied.

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