People v. Fenger
| Decision Date | 24 December 2009 |
| Docket Number | 101670 |
| Citation | 2009 NY Slip Op 9552,68 A.D.3d 1441,892 N.Y.S.2d 591 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ISAIAH FENGER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered January 5, 2009, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
In July 2007, a road patrol officer with the Chenango County Sheriff's Department was dispatched on a "welfare complaint" to investigate a vehicle on the side of a roadway. The officer testified that when she arrived on the scene, she saw a parked car with defendant inside. She spoke with two firefighters already on the scene, who told her that when they first arrived, the vehicle was still running and defendant was unconscious in the driver's seat. They further reported that the vehicle had moved forward when they tried to awaken defendant.
When the officer approached the vehicle, defendant was sitting sideways in the driver's seat, leaning partially out of the driver's door. The officer testified that she noticed a strong odor of alcohol and observed that defendant had slurred speech, was hard to understand, and had very glassy eyes. In response to the officer's questions, defendant stated that he had not been drinking and that there was no alcohol in the vehicle. The officer made a brief search of the vehicle, with defendant's consent, and found no alcohol.
The officer then asked defendant to get out of the vehicle to perform field sobriety tests. She testified that when he first attempted to comply, he fell back into the vehicle, grabbing the door frame. On the second attempt, he successfully exited the vehicle, and the officer administered four field sobriety tests. Defendant failed the first test—the horizontal gaze nystagmus test—but passed the other three. With defendant's permission, the officer then administered a portable breathalyzer test, commonly known as the Alco-Sensor test, and obtained a positive result. She read defendant his Miranda rights, placed him in custody, and read him a driving while intoxicated warning. While being transported to the police station, defendant made several incriminating statements.
Defendant was subsequently indicted on three motor vehicle offenses. Following a combined hearing to address probable cause and other preliminary matters, County Court ruled, among other things, that defendant's arrest was supported by probable cause. In January 2008, defendant pleaded guilty to a felony driving while intoxicated charge, based on a prior misdemeanor conviction for driving while intoxicated. He was sentenced to five years of probation and a fine of $1,500. In May 2008, he moved to vacate the felony conviction on the ground that the predicate misdemeanor conviction had been vacated. The court granted the motion and reduced defendant's conviction to misdemeanor driving while intoxicated and his sentence to three years of probation and a $1,000 fine. Defendant now appeals.
Defendant's sole contention is that his arrest was not supported by probable cause. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985] [citations omitted]). An arrest for driving while intoxicated is based on probable cause "if the arresting officer can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192" (People v Kowalski, 291 AD2d 669, 670 [2002]).
Defendant contends that, because he passed three out of the four field sobriety tests, the officer had no reasonable justification to believe that he was intoxicated and should have terminated the encounter before administering the Alco-Sensor test. We disagree. A probable...
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