DEFENDANT REQUESTED COUNSEL BEFORE REFUSING CHEMICAL TEST; REFUSAL SUPRESSION GRANTED

Nieves was charged with, among other things, driving while under the influence of alcohol. He was pulled over after an officer observed that Nieves' vehicle did not have any lights lit anywhere, and was overtaking other, slower cars from the left side. The officer noticed Nieves had bloodshot, blurry eyes and slurred speech. A portable breath test indicated a 0.1 BAC. When Nieves was asked at the precinct if he would consent to a breath test, he indicated not until he spoke to a lawyer. The court found the stop of the vehicle was justified for Nieves' violation of not having car lights on after dark, and the officer had probable cause, based on observations, to arrest Nieves for DWI. The court opined if suppression of the refusal to take a blood alcohol test was warranted if Nieves was denied his right to counsel. It ruled Nieves was never afforded the opportunity to provide the officer with complete sentences, as the officer consistently cut-off Nieves nearly after every question posed. The court found Nieves specifically and unequivocally requested counsel before refusing to the chemical test, finding the officer never took steps to enable Nieves to attempt to promptly reach an attorney. Thus, suppression of the refusal was granted.

The full story can be found here: http://www.newyorklawjournal.com/id=1202763336095