Patricia M. Filiberto, J.
Upon the consent of both parties, the Court granted defendant's motion to the extent of a hearing to determine reasonable suspicion for the initial stop of defendant's vehicle, probable cause to arrest, and voluntariness of defendant's statements. A combined suppression hearing was held before this Court. The Court now makes the following findings of fact and conclusions of law relevant to the issues raised.
Based upon all the credible evidence adduced at the hearing, the Court finds that on April 9, 2009 at 3:08 a.m., Officer Wassmer was on patrol, alone, in a marked car driving south on County Road 83, near North Ocean Avenue and Pine Road, in Coram, Brookhaven, Suffolk County, NY County Road 83 has two southbound lanes of traffic. Officer Wassmer was in the right southbound lane which is bounded on the right side by a single solid line, known as a "fog line". About 300 feet in front of him he observed a driver-the only other driver on the road- cross the fog line one time and then return to the lane of travel. The driver was not speeding nor operating the car erratically. The officer activated his emergency lights and the driver stopped appropriately on the shoulder of the road. Officer Wassmer stopped about 15 feet behind the car. He approached the driver's side of the car and asked the woman for her license, registration and insurance. She provided her license to the officer. The officer noticed that the woman had bloodshot, glassy eyes, slurred speech, and the smell of alcohol emanating from the car. He asked the woman from where she had been coming and if she had been drinking. The woman responded that she was coming from "Nappers and had one beer." The officer said he understood everything the woman said.
Officer Wassmer asked the woman to exit her car and walk to the back of it to perform standard field sobriety tests. The area was paved in asphalt, dimly lit, and the weather was cloudy and dry. Officer Wassmer said the woman did not stumble or fall down as she made her way to the rear of her car. The area was illuminated by the rear strobe light of the police car and the officer's mag light.
The suspect was asked to perform the HGN test, the walk and turn test, the one leg stand, and to take a prescreen breath test. The suspect did not indicate prior to any test that she had a medical condition that would prevent her from performing the tests or that she was taking medication. The suspect exhibited indications of intoxication in the performance of each test. Officer Wassmer formed the opinion that the suspect was intoxicated. He did a check of her driving privileges and found that her privileges were suspended.
Officer Wassmer arrested the defendant for Driving While Intoxicated in violation of Vehicle and Traffic Law section 1192(3), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree in violation of Vehicle and Traffic Law section 511(1) and Failing to Maintain Lane in violation of Vehicle and Traffic Law section 1128(a) - specifically that the defendant crossed the solid right side traffic marking.
Defendant was transported to the Sixth Precinct where Officer Wassmer read to her the Request to Take a Chemical Test and Warnings of Refusal. Defendant consented to take the chemical test at 3:56 a.m., initialed the document in the appropriate space, wrote the word "consent" and signed her name. The breath test results were.14 BAC.
Officer Wassmer read to the defendant the Miranda Warnings. She did not indicate that she did not understand and she did not ask the officer to repeat the warnings or read them more slowly. The defendant agreed to answer questions without a lawyer present. She wrote her signature at the bottom of the form containing her answers.
Conclusions of Law
The primary issue before this Court is whether the defendant violated Vehicle and Traffic Law section 1128(a), failing to maintain lane and unsafe lane change, by crossing - one time - the solid white right side traffic marking, known as "the fog line". The defendant is not charged with a violation of Vehicle and Traffic Law, section 1128(d), which prohibits crossing the solid white right road marking that separates the lane of travel from the shoulder of the road, nor is she charged with a violation of Vehicle and Traffic Law section 1131, which prohibits driving over, across, along or within the shoulder of the road unless authorized. There is no indication adduced from the hearing that Officer Wassmer had a reasonable suspicion that the driver of the vehicle had committed, was committing, or was about to commit a crime. The defense asserts that the stop is pretextual in that it was the only stop made that night by the officer and it occurred less than one hour before he completed his tour of duty.
In People v. Robinson, 97 N.Y.2d 341, 349 (2001), the Court of Appeals stated, "We hold that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article 1 and 12 of the New York State Constitution. In making the determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." The Court in Robinson went on to state, "...that police stops of automobiles in this State are legal only pursuant to routine nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime'..." (id., at 351). See, People v. Fisher, 20 Misc.3d 1136(A)(2008).
The People claim that Officer Wassmer made a valid stop because the defendant crossed the fog line one to three times. However, the Court's review of the transcript indicates that Officer Wassmer's testimony was that the defendant crossed the solid white line one time. The People rely on the decision in People v. Parris, 26 A.D.3d 393 (2006), app. den., 6 N.Y.3d 851. In Parris, the defendant crossed onto the shoulder of the highway twice over a short distance. The Court found that defendant's act established a violation of both (emphasis added) Vehicle and Traffic Law section 1128(a) and Vehicle and Traffic Law section 1131, which is not charged here.
Vehicle and Traffic Law section 1128(a) states:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others ...