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Officer is proven to be justified


The defendant, is charged with two counts of (DWI) Driving While Intoxicated in violation of VTL §1192 (2), (3), and Speeding in violation of VTL §1180(d). A pre-trial hearing was ordered to determine defendant’s motion to suppress. On March 23, 2006, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements. The sole witness at the hearing was the Trooper of the New York State Police 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.

A New York Defense Lawyer said that, the defendant was not given an Alco-Sensor or breathalyzer test screening test for the presence or absence of alcohol on his breath. After the four field sobriety tests were administered, the Trooper placed the defendant under arrest for Driving While Intoxicated. He believed defendant was intoxicated based upon his personal and professional experience. He has observed many persons, both professionally and socially, who have consumed alcohol and became intoxicated. He has also observed people who drank alcohol and did not become intoxicated. As a state trooper since May, 1999, the Trooper had personally made 75-100 arrests for Driving While Intoxicated, and had been present at the scene to observe and/or assist in nearly another 100 arrests for Driving While Intoxicated, for a total of 175-200 DWI arrests as an arresting officer or direct observer. He had successfully completed all courses at the State Police Academy for Detecting DWI Drivers, and the recognition of sobriety or intoxication in drivers. The courses amounted to between 40 and 80 hours of required course work.

A rep said that the Trooper arrested defendant for Driving While Intoxicated based upon his cumulative performance on all the field sobriety tests, not for his performance on any specific test. It was also based on the odor of alcohol on his breath, his glassy, watery, bloodshot eyes, and his admission of drinking “a few” or “two” beers as an underage drinker.

The issue in this case is whether the breathalyzer test was properly administered.

the Court said that, where physical evidence is sought to be suppressed, the general rule is that the People must go forward with evidence tending to demonstrate a lawful rationale for police conduct, but that the defendant has the ultimate burden of proving a lack of basis for the police action by a preponderance of the evidence. The People must prove the voluntariness of defendant’s statement beyond a reasonable doubt.

In a post-hearing memorandum, defendant argues that in a probable cause hearing, the People are under an obligation to prove probable cause beyond a reasonable doubt. It appears that the Third Department’s decision has never been criticized or overruled by any other court, nor has it directly been followed. A subsequent Third Department decision indirectly refutes the proposition.

Probable cause or reasonable cause to arrest is a common sense standard which has emerged from the case law and has been statutorily defined by CPL §70.10(2). The terms “reasonable” and “probable” are used interchangeably. “Reasonable cause to believe that a person has committed an offense” exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

A finding of probable cause does not require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather it needs merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator. Moreover, in determining whether a police officer has probable cause for an arrest, the emphasis should not be narrowly focused on any single factor, but on an evaluation of the totality of circumstances, which takes into account “the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents.” In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts. Moreover, a party may act with probable cause even though mistaken if the party acted reasonably under the circumstances in good faith.

The Court concludes probable cause was established to arrest defendant for Driving While Intoxicated following his lawful detention upon pulling into a parking space in the parking lot of the Toucan Bar & Grill. Probable cause was based upon the Trooper’s observation of the indicia of alcohol consumption such as the odor of alcohol on the breath, and watery, glassy eyes, defendant’s failure to pass three of the four field sobriety tests, and his admissions that he had consumed a few or two beers, and should not have been driving.

In sum, the Court finds that sufficient evidence existed in this case to provide the officer with reasonable grounds to believe that defendant had been driving in violation of VTL §1192, and thereby provided probable cause for the defendant’s arrest for Driving While Intoxicated. The evidence obtained as a result of the arrest was, therefore, lawfully obtained.

A defendant who has been temporarily detained pursuant to a routine traffic stop, including suspected driving while intoxicated offenses, is not considered to be in custody for Miranda purposes. Based upon the above findings of fact and conclusions of law, the defendant’s motion to suppress physical evidence and statements is denied in all respects.

If there is no probable cause in your arrest for DWI, there is a need for the assistance of a New York DWI Defense Attorney and New York Criminal Attorney at Stephen Bilkis and Associates to defend your case.

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