An acting City Court judge has denied a motion by City Councilwoman Roxanne M. Burns to suppress evidence obtained against her at her residence the evening she was charged with aggravated driving while intoxicated and leaving the scene of a property-damage accident.

Mrs. Burns was charged with the offenses Dec. 8 after leaving a retirement party for City Judge James C. Harberson at Ives Hill Country Club on Flower Avenue West. It is alleged that after her vehicle struck a railing in front of the club, she drove to her Mullin Street home, where she later was questioned by police who believed she had been drinking. Her blood alcohol content subsequently was alleged to be 0.20 percent. Under state law, a BAC of 0.08 percent is the threshold for intoxication. Aggravated DWI is charged when the BAC is 0.18 percent or more.

In February, Mrs. Burns filed an omnibus motion asking that all evidence obtained at her residence be suppressed, claiming it stemmed from a warrantless entry into her home by officers, as she never gave officers explicit permission to enter her house. She asked that the charges be dismissed, contending her arrest was made without probable cause.

In an order filed last week with City Court, Fulton City Judge Spencer J. Ludington denied the motion, stating that the officers had probable cause to question her because it was undisputed that she had been involved in an accident and a report needed to be made of it. Judge Ludington said Mrs. Burns’s arguments in the motion mistakenly pertained to warrantless search and seizures cases, rather than the warrantless entry issue she was proffering.

The judge said that officers had been told there was an accident involving Mrs. Burns at Ives Hill and observed “fresh” damage to her vehicle in her driveway, making it “eminently reasonable” for them to try to complete an accident report. Upon seeing her inside the residence, officers knocked on the door and were allowed into her kitchen. Judge Ludington wrote in his decision that even though Mrs. Burns did not specifically invite the officers into her kitchen, her consent to their entry was “readily inferred from her words, deeds and gestures.”

According to court documents, Mrs. Burns also contended that she and officers went outside her residence at one point to gather documentation from her vehicle. She maintained that officers then followed her back into the home, again without her consent. Judge Ludington ruled that the return inside was “merely a continuation of the initial consensual entry.”

Mrs. Burns also contended that the officers’ entry was unlawful because she had told them she did not want to speak with them at the time, but would be willing to do so the following morning. Judge Ludington ruled that at that point, in addition to the accident reports, officers had probable cause to question her further because she allegedly was emitting an odor of alcohol and had glassy eyes and unsteady movements after admitting she had driven from Ives Hill.

“As much as Mrs. Burns may have wished to wait until morning to speak to police, she had no right to do so,” Judge Ludington said.

He said even if Mrs. Burns was unaware of any damage to the railing at Ives Hill, she had an obligation to complete an accident report once she was advised of the damage. However, because she allegedly had left the scene, the investigation into the accident could not take place at the scene or at the police station and, therefore, the investigation into the accident and a possible DWI charge had to take place at her home.

Judge Ludington said Mrs. Burns had no more right to revoke her consent to the investigation “than a person stopped for a traffic violation along the highway does,” in which officers are allowed to conduct a “reasonable interrogation” into the circumstances.

Mrs. Burns’s next court appearance is scheduled for Monday. Watertown attorney Matthew A. Goettel is acting as special prosecutor in the matter.

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