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Portable Breath Test Device (PBT) Results Should Not Have Been Admitted, Driving While Intoxicated Conviction Reversed

The Second Department reversed defendant’s driving while intoxicated (DWI) conviction because the results of the portable breath test device (PBT) were allowed in evidence in the People’s direct case:

Generally, the result of a PBT, such as an Alco-sensor, “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Contrary to the trial court’s determination, isolated remarks during defense counsel’s opening statement did not open the door for the People to introduce incriminating testimony about the PBT result as part of their case-in-chief, particularly in the absence of appropriate limiting instructions … . We note that the opening remarks at issue, regarding the officer discarding the PBT “cap,” were at least partly offered in support of the defense theory that the defendant was not aware that he was the subject of a lawful arrest on the night in question, which theory was offered to undermine the charges of assault in the second degree and resisting arrest. Further, we find that the People adequately responded to this remark by eliciting the officer’s testimony that he disposed of the plastic cap because it was unsanitary, and this was standard procedure. Nonetheless, the People elicited testimony that, according to the PBT, the defendant’s BAC was .128%, significantly higher than the legal limit of .08%, before defense counsel had an opportunity to raise this issue during cross-examination … . Under these circumstances, it cannot be said that the defendant opened the door for the People to adduce evidence of an insufficiently reliable PBT result in order to prove the defendant’s intoxication … .

Thereafter, the trial court did not provide the jury with any limiting instructions regarding the PBT result …, but instead directed the jury to consider the PBT result as direct proof of the defendant’s intoxication. The court told the jury that the PBT was a “generally accepted instrument in determining blood alcohol content,” and that no scientific expert was necessary. This was error … . Under the circumstances, including the lack of evidence of admissible field sobriety tests, we find that this error was not harmless beyond a reasonable doubt. People v Krut, 2015 NY Slip Op 08439, 2nd Dept 11-18-15

 

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Non-Constitutional Appellate Issues Re: Refusal to Submit to a Chemical Test (DWI) Do Not Survive a Guilty Plea

The Second Department, in a full-fledged opinion by Justice Leventhal, determined defendant, by pleading guilty, had forfeited his right to appellate review of (non-constitutional) rulings about the admissibility of his refusal to submit to a chemical test (DWI) after his involvement in a car accident. The court explained why some appellate issues survive a guilty plea and some don’t:

The Court of Appeals has repeatedly observed that “a plea of guilty generally marks the end of a criminal case, not a gateway to further litigation'” … . A guilty plea signals the defendant’s intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” … . A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew many arguments made before the plea” … . “This is so because a defendant’s conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial'” … . The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice … , the statutory right to a speedy trial … , the exercise of alleged discriminatory peremptory challenges … , and adverse rulings on Sandoval and Ventimiglia/Molineux applications … .

However, not every claim is forfeited by a guilty plea. The issues that survive a valid guilty plea generally relate either to jurisdictional matters, such as an insufficient accusatory instrument, or to rights of a constitutional dimension that go to the heart of the criminal justice process … . “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” … . Examples of rights of constitutional dimension which are not forfeited by a guilty plea include the constitutional right to a speedy trial, the protection against double jeopardy, and the competency of the defendant to stand trial … .

Among the limited group of issues that survive a valid guilty plea and may be raised on a subsequent appeal are those relating to the denial of a motion to suppress evidence under CPL 710.20 … . The Legislature has preserved such claims for appellate review through the enactment of CPL 710.70(2) … . CPL 710.70(2) expressly grants a defendant a statutory right to appellate review of an order denying a motion to suppress evidence “notwithstanding the fact” that the judgment of conviction “is entered upon a plea of guilty.” However, the statutory right to appellate review created by CPL 710.70(2) applies to orders which deny a motion to suppress evidence on the grounds enumerated by CPL 710.20 … .  Athough CPL 710.20(5)  authorizes a defendant to move to suppress evidence of “a chemical test of the defendant’s blood administered in violation of the provisions” of Vehicle and Traffic Law § 1194(3) or “any other applicable law,” that provision is not implicated here. In this case, the defendant did not move to suppress the results of a chemical test of his blood. Indeed, the police did not perform a chemical test upon the defendant. Rather, he moved to preclude the People from admitting testimony of his refusal to submit to a chemical test. Such a motion cannot be characterized as one seeking suppression under CPL 710.20(5). Accordingly, the defendant does not have a statutory right to appellate review of the County Court’s ruling permitting the introduction of evidence of his refusal to submit to a chemical test.

Nor is the defendant’s claim that the County Court erred in ruling that the People would be permitted to introduce evidence at trial of his refusal to submit to a chemical test a claim of constitutional dimension, or one that bears upon the integrity of the judicial process. Rather, the court’s determination relates to an evidentiary or technical matter. People v Sirico, 2015 NY Slip Op 07862, 2nd Dept 10-28-15

 

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The Prejudicial Effect of the Result of the Portable Breath Test (PBT) Outweighed Its Probative Value—New Trial Ordered

The Second Department determined defendant’s DWI conviction must be reversed because evidence of the result of the portable breath test (PBT), which is generally inadmissible as unreliable, was allowed in evidence. The defendant had subsequently agreed to the chemical breath test, which can be admissible evidence at trial, but his breaths were so shallow during repeated attempts to administer the test that no results were obtained. The result of the PBT (which showed the presence of alcohol) was deemed admissible, not as proof of intoxication, but as evidence of defendant’s state of mind when the chemical breath test was administered (the People’s position was that defendant deliberately sabotaged the chemical test with shallow breaths).  Although the PBT was ostensibly not admitted as proof of intoxication, the Second Department determined the jury would have taken it as such and, therefore, the probative value of the test result was outweighed by its prejudicial effect:

On appeal, the defendant contends that he was deprived of his right to a fair trial based on the County Court’s admission of the PBT results into evidence. We agree. Under the circumstances of this case, the probative value of the PBT evidence was outweighed by its prejudicial effect and, accordingly, should have been excluded … .

Generally, the result of a PBT “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Here, although the PBT evidence was not introduced for the purpose of proving intoxication, since the jurors were permitted to hear that the PBT detected the presence of alcohol, the County Court created an unacceptable risk that the jurors would improperly consider the PBT evidence for this impermissible purpose. This risk was enhanced both by the County Court’s determination to take judicial notice that the PBT was on the Commissioner’s conforming list and the State Trooper’s trial testimony that he was trained in the operation of the PBT device. The trooper’s testimony in this regard, which was directed towards the issue of whether the PBT was reliable for its intended purpose—the assessment of the defendant’s level of intoxication—was irrelevant to the defendant’s state of mind at the time he submitted to the chemical breath test at the State Police barracks. Thus, this testimony increased the risk that the jury would be unable to avoid considering the PBT evidence as proof of the defendant’s intoxication. People v Palencia, 2015 NY Slip Op 06373, 2nd Dept 7-29-15

 

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Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Defendant’s Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff’s Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff’s Department on Her Behalf

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined defendant's breathalyzer test results were properly suppressed.  After her arrest for Driving While Intoxicated, the defendant did not ask to speak with an attorney and consented to the test.  However, her family communicated with an attorney who called before the breathalyzer test was administered and told the sheriff's department not to test or question the defendant.  The Court of Appeals determined the sheriff's department was obligated to inform the defendant about the attorney's communication before administering the test:

In People v Gursey (22 NY2d 224 [1968])… we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b), “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police 'may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication'” … . Violation of this right to legal consultation generally requires suppression of the scientific evidence …. Because time is of the essence in obtaining accurate chemical test evidence …, we further observed in Gursey that a suspect's communication with a lawyer regarding “the exercise of legal rights should not [] extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses” … .

It is therefore well established that “there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing” … . In other words, conferring with counsel is permissible only if “'such access does not interfere unduly'” with timely administration of the test … . * * *

In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that “law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly” with the administration of alcohol test … . The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle & Traffic Law §§ 1194 [2] [b], 1194-a [3] [c]). The police therefore must advise the accused that a lawyer has made contact on the accused's behalf … . Once so informed, the accused may choose to consult with counsel or forego that option and proceed with the chemical test. People v Washington, 2014 NY Slip Op 04190, CtApp 5-6-14

 

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Defendant Properly Precluded from Introducing Medical Records Without Accompanying Medical Testimony

The Third Department determined defendant was properly precluded from placing his hospital records into evidence in the absence of any accompanying medical testimony.  The defendant in this DWI case wanted to use the hospital records to demonstrate his failure of the sobriety tests was due to his medical condition, not intoxication.  The trial court correctly ruled that, without accompanying medical testimony, the jury would have to speculate about the meaning of the hospital records:

In support of his theory that his failure of the field sobriety tests was caused by his medical ailments as opposed to intoxication, defendant sought the admission of his hospital records — unaccompanied by any testimony from a medical professional. County Court denied the relief, concluding that defendant’s hospital records, while generally admissible pursuant to CPLR 4518, would lead the jury to speculate as to defendant’s medical condition unless a medical professional offered an explanation. The court did permit defendant to testify regarding his physical condition and hospital treatment, and to introduce photographs of his injuries at trial … . Inasmuch as the hospital records, without explanatory testimony, would have required the jury to speculate as to whether defendant’s injuries caused him to fail the sobriety tests, we find that the court properly excluded them … . People v Collins, 2015 NY Slip Op 105558, 3rd Dept 3-12-15

 

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Right to Counsel Not Invoked by Defendant’s Telling Police He Wanted to Speak to his Attorney Before He Signed Anything; Spontaneous Statements Made After Right to Counsel Attached Not Suppressible; Non-Communicative Parts of Video Not Suppressible; Limited Right to Counsel Re: Deciding to Submit to Chemical Test Not Invoked

The Third Department, in reversing (in part) County Court’s suppression of videotaped statements made by the defendant after a DWI arrest, dealt in some depth with several issues:  (1) the court noted that, although a defendant seeking a suppression hearing must make sworn factual allegations supporting the motion, CPL [Criminal Procedure Law] 710.60 “does not mandate summary denial of defendant’s motion even if the factual allegations are deficient” and the hearing was properly granted in this case under “principles of judicial economy;” (2) the defendant did not invoke his right to counsel by telling the police he wanted to speak to his attorney before he signed anything; (3) the defendant did invoke his right to counsel when he subsequently asked that he be allowed to call his attorney; (3) defendant’s spontaneous statements, even those made after right to counsel attached, were not suppressible; (4) defendant’s responses to questions about the chemical test and where he last had a drink were suppressible; (5) the portions of the videotape that did not contain any communication were not suppressible; and (6) although a defendant has a limited right to counsel for the purpose of deciding whether to submit to a chemical test, the defendant did not exercise that right before refusing the test. With regard to spontaneous statements and the “non-communicative” portions of the video, the court wrote:

With a few exceptions, the video reveals that defendant’s statements in the period preceding the reading of his Miranda rights were made without any triggering words or conduct by the police. As the officers played no role in soliciting them, these statements constitute spontaneous declarations and should not have been subject to suppression … . However, at three points following defendant’s successful invocation of his right to counsel, officers asked him questions that should reasonably have been anticipated to elicit responses. The first such exchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant responded after an officer asked him what he thought would occur as a result of refusing a chemical test. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed his last drinking location in response to a question by one of the officers. The third occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer asked defendant several questions about chemical testing and the events of the evening. Defendant’s responses to these inquiries cannot be said to be spontaneous. Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed.

As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes “a communicative act that disclose[s] the contents of defendant’s mind” … . Generally, a defendant’s physical characteristics and appearance are not considered to be communicative in nature … . Here, portions of the video in which defendant is silent show only his physical condition and appearance and do not disclose any communicative statements made after he had invoked his right to counsel. Whether any of these video segments may ultimately be deemed admissible at trial depends on other considerations not presented here, but there is no basis for their suppression as communicative statements … . People v Higgins, 2014 NY Slip Op 00253, 3rd Dept 1-8-15

 

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In a DWI Case, Operation Proved by Circumstantial Evidence

The Third Department determined circumstantial evidence the defendant had been driving while intoxicated was sufficient.  The defendant went to a witness' home seeking assistance after his car ended up in a ditch.  [Although not summarized here, the decision, which affirmed the conviction, also has in depth discussions of errors in juror selection (failure to address bias expressed by a juror re: a DWI case where peremptory challenges eventually exhausted), the criteria for juror disqualification when a juror is related to a witness but does not realize it until the witness testified, and related ineffective assistance claims.]:

A defendant need not be driving to operate a vehicle for purposes of the Vehicle and Traffic Law; it is enough if the evidence shows that he or she is behind the wheel with the engine running … . The testimony was that when defendant arrived on [a witness'] doorstep to request assistance with getting the car out of the ditch, he was alone and smelled of alcohol. In addition to the testimony of [witnesses] describing his efforts, defendant acknowledged that he was behind the wheel of the car, and that the car was running with the wheels spinning as he attempted to drive the car out of the ditch. These factors are sufficient to establish that defendant was operating a motor vehicle on a public highway … . People v Colburn, 2014 NY Slip Op 08875, 3rd Dept 12-18-14

 

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Even Though Probable Cause for a DWI Arrest Existed, the Arresting Officer Testified He Was Not Going to Arrest the Defendant Until He Found a Switchblade Knife During a Pat-Down Search—Therefore the Search Could Not Be Justified As a Search Incident to Arrest and the Switchblade Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that a switch-blade found in a pat-down search of the defendant after a vehicle stop should have been suppressed. The way the defendant was driving and the officer’s observations of defendant after the stop provided probable cause for a DWI arrest.  However, at the suppression hearing, the arresting officer (Merino) testified that he was not going to arrest the defendant prior to the pat-down search and only arrested him because the knife was found.  The Court of Appeals held that the search, therefore, could not be a “search incident to arrest” and could not be otherwise justified:

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v Kentucky, 448 US 98, 111 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People Evans, 43 NY2d 160, 166 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”]). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v Alford, 543 US 146 [2004]). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not … . People v Reid, 2014 NY Slip Op 08759, CtApp 12-16-14

 

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