The opinion of the court was delivered by: David Stadtmauer, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendant is charged under Vehicle and Traffic Law §1192 with Driving While Intoxicated and related offenses. At a Mapp(Breathalyzer)/Dunaway hearing conducted by this court on February 9, 2009, one witness testified - Police Officer Modesto Alamo, for the People. The court finds Officer Alamo to have been a truthful and reliable witness, and his testimony is credited accordingly.
PROBABLE CAUSE FOR THE ARREST
On November 17, 2007, at approximately 4:30 a.m., Police Officer Alamo and his partner, Police Officer Flores, were on routine patrol in their marked police vehicle in the vicinity of 2600 Briggs Avenue, Bronx County. There, they encountered a traffic jam because a double-parked van (with its engine running and all of its lights on) had been blocking vehicular traffic on a one-way street heading northbound. In addition, a number of backed-up drivers were honking their car horns, and some were attempting to go into reverse gear in order to extricate themselves from the situation.
After clearing out the backed-up vehicles, the officers drove up behind the van and turned on their siren and turret lights in order to get the driver's attention. There was no response and the van did not move.
Police Officer Alamo looked inside and saw defendant asleep in the driver's seat, with his foot on the brake and the gearshift in "drive." Alamo opened the door, removed the defendant's foot from the brake and placed his own foot upon it, and then he shifted the gear into "park."
After finally rousing the defendant from his slumber, Officer Alamo observed that the defendant's eyes were blood-shot, his speech was slurred, and there was a strong odor of alcohol emanating from his breath. In addition, after defendant exited the van, the officer observed that the defendant was "very unsteady on his feet" and that he "couldn't really stand up straight."
Police Officer Alamo concluded that the defendant was operating a motor vehicle while intoxicated. The defendant was placed under arrest, handcuffed, and brought to the 52nd Precinct to begin the formal processing of paperwork.
In view of all the circumstances as previously set forth, the court finds that the police acted properly and reasonably in approaching defendant's van, as well as in each of their subsequent actions (which were based upon legitimate concerns for public and personal safety), and that there was probable cause for the arrest.
After the initial processing at the 52nd Precinct, the defendant was taken by Officer Alamo to the 45th Precinct, where the Police Department maintained facilities and machines for intoxication testing. There, with Officer Alamo also being present, the defendant was asked by Police Officer Robles if he would take a Breathalyzer test and the defendant verbally and voluntarily consented.
It is unclear as to exactly what time the defendant's consent was obtained by the police; however, it was agreed by the parties that this consent was requested and obtained more than two hours after the arrest. It was also agreed that the Breathalyzer test was administered by Police Officer Robles at 7:38 a.m., approximately three hours after the arrest, and that after the test, the breath machine registered slightly in excess of the statutory per se intoxication threshold of ".08 of ...