People v. Torres

• Decision Date: 18 June 1984
• Citation: 478 N.Y.S.2d 771,125 Misc.2d 78
• Parties: The PEOPLE of the State of New York v. Rigoberto TORRES, Defendant.
• Court: New York City Court

Page 771

478 N.Y.S.2d 771

125 Misc.2d 78

The PEOPLE of the State of New York v. Rigoberto TORRES, Defendant.

Criminal Court of the City of New York New York County.

June 18, 1984.

Robert M. Morgenthau, Dist. Atty., New York County (Victoria Stewart, Asst. Dist. Atty., of counsel), for the People.

Legal Aid Society (John Yong, New York City, of counsel), for defendant.

ALBERT D. KOCH, Judge.

The defendant, Rigoberto Torres, was arrested on September 15, 1983, and charged with violating sections 1192.2 (Operating a Vehicle with Blood Alcohol Content of .10 or More), and 1192.3 (Operating a Vehicle While Under the Influence of Alcohol) of the Vehicle and Traffic Law. The arrest took place at a DWI Safety Check Roadblock set up by the N.Y.C. police at the westbound lanes of the 181st Street Bridge, which connects the Bronx to Manhattan.

The defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution (N.Y. Const., art. I, § 12; U.S. Const., Fourth Amdt.). A hearing on this motion was held on March 8, 1984 and continued on March 12, 1984.

The facts are not in dispute. Special units of the New York Police Department, acting under administrative guidelines, routinely set up limited roadblocks on public highways for the purpose of apprehending intoxicated or impaired drivers. Uniformed police officers funnel all vehicles in one or more lanes of traffic to a compulsory stop point by the use of road markers and directions. These drivers are stopped without any previous indication of criminality or conduct violative of the Vehicle and Traffic Law.

After the initial stop, a police officer, without requesting the production of a driver's license or valid registration, announces to each driver that a DWI Safety Check is being conducted. He then inquires as to how the driver feels. During this process, the officer monitors the appearance, responses and general condition of the driver. At this point in time most drivers are allowed to proceed on their way. Only those exhibiting any indicia of intoxication or impairment--i.e. bloodshot or watery eyes, slurred speech, the odor of alcohol on the breath--are directed to drive their cars to a "safety zone" a few feet away.

Once in the "safety zone" the drivers are told to exit their vehicles and asked additional questions. They are then requested to submit to various field sobriety tests in an effort to allow the police officer to better ascertain the driver's physical dexterity.

These drivers are not given any warnings concerning their right to refuse to take the dexterity tests, or the legal consequences of submitting to or refusing to take the tests. Nor are these drivers advised that any conclusions reached pursuant to the police officer's observation of the tests may provide or supplement the basis for a determination by that officer that probable cause to arrest exists. Finally, there is a failure to inform the drivers that testimony as to these observations may, and in all probability will, be offered against them at a later date in a court of law.

The "formal" arrest, if necessary, takes place after the completion of the field sobriety test. This action finds its probable cause in the totality of circumstances observed by the officer with respect to the driver at both the initial stop and safety zone area. Miranda warnings are given at this time.

The driver/defendant is then taken to a highway unit precinct. He is advised of the procedures and ramifications involved in submitting to a breathalyzer test and offered the opportunity to voluntarily comply. If his consent is obtained, he is given a breathalyzer test as well as another more complete series of dexterity coordination tests. This process, with the exception of the actual taking of the breathalyzer test, is videotaped.

The court makes the following specific findings of fact pertaining to the defendant:

On September 15, 1983, a DWI roadblock, indicated by signs, was set up by a uniformed police unit at the westbound 181st Street Bridge. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt.

The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. Police Officer Hauschild, while asking the defendant how he felt, made several observations. He noticed that the defendant's eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath.

The defendant was then directed to drive his vehicle to the safety zone a few feet away. Police Officer Hauschild ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant's performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct Police Officer Hauschild gave the defendant his Miranda warnings.

Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol.

The defendant now stands charged with violating VTL 1192(2) and 1192(3). He thus makes the instant motion.

The first issue to be decided is whether the constitutional rights of motor vehicle drivers are violated by police stops at "Driving While Intoxicated Safety Check" roadblocks.

The initial stop of the defendant's car sufficiently restrained his freedom to result in a seizure subject to constitutional limitations. (See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 At that time the police officers lacked any indication that a crime was committed or that any criminal activity was under way. Accordingly, the seizure cannot find its justification under either common law principles or the Criminal Procedure Law. (See People v. Cantor, 36 N.Y.2d 106, 112, 365 N.Y.S.2d 509, 324 N.E.2d 872 CPL 140.30.) Unless the initial stop was reasonable, the subsequent acquisition of observations and test results from the defendant would be suppressible as the derivative results of an illegal seizure. (Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963].)

Reasonableness in this context requires the proper balancing between the privacy interests of the individual and the public interests of the state. The action of the police must be justified at its inception and be a reasonable response to the problem which it addresses. (Terry v. Ohio, supra, 392 U.S. at p. 19, 88 S.Ct. at p. 1878; Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 People v. Kuhn, 33 N.Y.2d 203, 351 N.Y.S.2d 649, 306 N.E.2d 777 [1973].)

The state's compelling interest in highway safety permits distinctions between the privacy rights of citizens based upon whether or not they are occupants of motor vehicles. (United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 [1976].)

No New York appellate authority has directly passed upon the constitutionality of Driving While Intoxicated (DWI) roadblock stops but ample Federal and State court authority exists regulating various types of motor vehicle stoppages.

Brief stops of motorists at permanent checkpoints to enable Federal officers to look for illegal aliens was upheld because it balanced a limited stop at a permanent checkpoint with extensive prior warnings against the exigency of a massive influx of illegal non-citizens. (United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 [1976].)

Random stops, arbitrary in nature, to check a driver's license and registration have been held unconstitutional. (Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 That same case, however, allowed fixed checkpoints for this purpose. Justice White stated there that:

"For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. 'At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' " (Emphasis added.)

(Id. at 657, 99 S.Ct. at 1398.)

Under the right circumstances, the roadblock need not be permanent or have lights or warnings but may occur in isolated areas and be a roving roadblock. (People v. John BB., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864 Routine "traffic checks" by police officers to determine whether or not a vehicle is being operated in compliance with the Vehicle and Traffic Law is permissible when conducted in a nonarbitrary, nondiscriminatory uniform manner. (People v. Ingle, 36 N.Y.2d 413, 415, 369 N.Y.S.2d 67, 330 N.E.2d 39 People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218 People v. Mestey, 61 A.D.2d 447, 450, 402 N.Y.S.2d 577 [1978].)

Thus, police officers, on whim or caprice and without an articulable suspicion or probable cause, may not stop the driver of a single motor vehicle. They may properly stop one or more lanes of traffic temporarily, at a roadblock in a nonarbitrary manner when a discernible need is established.

A routine stop to establish compliance with VTL regulations pertaining to licensing and registration has been sanctioned as a proper...