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People v. Burnet

March 3, 2009

THE PEOPLE OF THE STATE OF NEW YORK,
v.
LEVI BURNET, DEFENDANT.



The opinion of the court was delivered by: Richard L. Price, 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.

The defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law 1192 [3] and [1]) and unlicensed operation of a motor vehicle (Vehicle and Traffic Law 509 [1]) and moves to suppress any evidence or testimony concerning his alleged refusal to submit to a chemical breath analysis at trial, claiming: 1) that he was not provided with a clear and unequivocal warning of the consequences of refusing; 2) there no mechanism to determine whether he understood the warnings that were given; 3) that any refusal was not persistent as required by Vehicle and Traffic Law 1194 (2) (f); and 4) the New York City Police Department's failure to provide the defendant with an interpreter during the chemical breath testing process violated his rights under the Equal Protection (US Const, 14th Amend, § 1) and Due Process Clauses (US Const, 14th Amend, § 1; NY Const, art 1, § 6) because it resulted in a disparate practice of affording both chemical breath and physical coordination tests to English-speaking defendants but only a chemical breath analysis to non-English speaking defendants.

The District Attorney contends that evidence and testimony concerning the defendant's alleged refusal is admissible because there is no constitutional right to refuse, the warnings administered to him of the consequences of refusing were clear and unequivocal, that he understood them, and that his refusal was persistent in both words and conduct in accordance with Vehicle and Traffic Law 1194 (2) (f).

On February 18, 2009, this court conducted a hearing on the issue of whether the People should be permitted to introduce evidence and elicit testimony concerning the defendant's alleged refusal to submit to a blood alcohol content (BAC) or Intoxilyzer test at trial, as well as whether the arresting officer's stop of the defendant's vehicle was justified and whether his demand that the defendant submit to a portable breath test (PBT) was proper. Upon hearing oral argument from both the defendant and the People concluding on February 24, 2009, and after reviewing their respective papers submitted in support thereof and documents on file with the court and viewing the video, defendant's motion is denied in its entirety.

Findings of Fact

At the hearing, the People called one witness, Police Officer Christopher Baumann, who stated that he has made approximately six hundred arrests during his thirteen and one-half years as a New York City police officer, approximately seventy of which involved driving while intoxicated (H: 4-5). The Defendant called no witnesses. This court finds Officer Baumann's testimony credible to the extent indicated herein.

On June 1, 2008, at about 3:50 a.m., Police Officer Baumann of the 48th Precinct, working alone (H: 5), observed a Chevrolet Impala traveling on Webster Avenue from 180th Street in Bronx County proceed "through three steady red lights up to 187th Street" (H: 6). Officer Baumann, dressed in uniform and driving a marked police vehicle (H: 5), stopped the Chevrolet Impala, exited his vehicle and approached the driver's side of the Impala (H: 6-7). Relative to the subsequent events, Officer Baumann testified on direct examination as follows:

Q: Did you approach the vehicle?

A: Yes. I approached the driver's side of the vehicle. I asked the driver to produce a valid New York State license and paperwork to the vehicle.

Q: Was the defendant able to produce a New York State license?

A: No, he did not. (H: 7).

***

Q: In what language did you ask the defendant to produce such license?

A: English.

Q: Did the defendant indicate that he understood what you ...


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