People v. Rollins

• Decision Date: 06 March 1986
• Citation: 499 N.Y.S.2d 817,118 A.D.2d 949
• Parties: The PEOPLE of the State of New York, Respondent, v. Nick A. ROLLINS, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 817

499 N.Y.S.2d 817

118 A.D.2d 949

The PEOPLE of the State of New York, Respondent, v. Nick A. ROLLINS, Jr., Appellant.

Supreme Court, Appellate Division,

Third Department.

March 6, 1986.

Edmund J. Hoffman, Jr., Cortland, for appellant.

Benjamin J. Bucko, Dist. Atty. (R. James Miller, of counsel), Ithaca, for respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and HARVEY, JJ., concur.

CASEY, Justice.

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered March 15, 1985, upon a verdict convicting defendant of the crimes of vehicular assault (one count) and operating a motor vehicle while under the influence of alcohol (two counts).

At about 8:45 P.M. on December 23, 1983 on Route 96B in the Town of Ithaca, Tompkins County, defendant's car swerved into the southbound lane while traveling north and struck an oncoming car which was driven by Julia Lawrence and occupied by two passengers, Maria Piccirillo and Chuck Reynolds. A State trooper arrived as defendant was being carried to an ambulance by stretcher. This trooper later testified that he noticed that defendant's eyes were watery and that he detected a strong smell of alcohol on defendant's breath. Defendant appeared semiconscious or unconscious. At about 11:00 P.M. at the Tompkins County Hospital emergency room, defendant was arrested on a charge of driving while intoxicated. After proper warning, defendant refused to submit to a chemical test. The trooper then contacted the District Attorney in order to obtain a telephone order to take blood from defendant (see, Vehicle and Traffic Law § 1194-a[3][a] ). This order was obtained over the telephone from the County Judge and, thereafter, defendant was given two blood tests which measured his alcohol content at .1714% and .1678%, respectively. Subsequently, defendant was indicted for vehicular assault, operating a motor vehicle with a blood-alcohol level of at least .10% and driving while intoxicated. After a nonjury trial, defendant was convicted of all counts.

On this appeal, defendant argues that his arrest lacked probable cause, that the blood seizure order was illegally obtained and that the proof was insufficient to support his conviction of driving while intoxicated and vehicular assault.

Defendant claims that because the trooper was not permitted at trial to render an expert opinion as to defendant's intoxication, there was no probable cause for the trooper to arrest him. In such a situation, however, the inquiry is:

* * * whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor (People v. Farrell, 89 A.D.2d 987, 988, 454 N.Y.S.2d 306).

The arresting trooper here had 17 years of experience and had made about 170 arrests for driving while intoxicated. The trooper was entitled to draw upon that experience in his observation of defendant at the time of the arrest (see, People v. Corrado, 22 N.Y.2d 308, 313, 292 N.Y.S.2d 648, 239 N.E.2d 526). Given the manner in which the accident occurred, the strong odor of alcohol on defendant's breath and his watery eyes, the trooper had probable cause to arrest defendant despite the fact that he did not observe defendant walk and talk.

As to the blood seizure order, we find that it was properly given even though the trooper was not sworn prior to making the application. The transcript of the oral application for the order shows that the trooper began his request by stating "William L. Bean, being duly sworn". Therefore, it is clear that he thought he was sworn and, in fact, he did swear to the contents of the application retroactively. The totality of the circumstances sworn to by the...