DWI: Pre-Conviction License Suspensions and Hardship Hearings
Legal and Practical Analysis
© 1996 Karl Chip Seman
For the general practitioner who dabbles in driving while intoxicated defense the challenges of immediate license suspensions and the accompany possibility of a Hardship hearing has proven to be a daunting task. This article will explore the legal and practical ramifications involved in the newly enacted mandatory license suspensions pending prosecutions of VTL § 1192.2, driving while intoxicated by .10 or more per cent of alcohol in blood. This article will review the applicability of immediate license suspension at arraignment, defenses thereto, the Hardship hearing and finally some practical analysis.
Immediate License/Privilege Suspension Pending Prosecution:
Background
Prior to November 1, 1994, the most prevalent pre-conviction instance of a license/privilege to drive suspension was a refusal to take a blood alcohol chemical test. Upon arraignment the accused's license/privilege is immediately suspended; VTL § 1194. Within fifteen days, a scheduled "Refusal" hearing is held by the Department of Motor Vehicles and presided over by a hearing officer. The purpose of the hearing is to determine if the accused was provided sufficient notice and warning of the consequences of refusing to submit to the test.
Another but less prevalent instance of pre-conviction license suspension involves defendants charged with a violation of any misdemeanor driving while intoxicated/impaired by drugs offense, VTL §1192.2,3, 4 coupled with a felony charge of either Vehicular Assault or Homicide arising from the intoxicated operation. See VTL § 1193(e) and PL Articles 120 and 125 et seq.
Additionally, a court suspends, pre-conviction, license/privileges of those repeat offenders charged with any drinking and driving offense. Prior convictions of either driving while intoxicated or impaired by drugs or even impaired by alcohol as a traffic infraction within five years of being charged with a subsequent offense of a misdemeanor or felony of driving while intoxicated or impaired by drugs will result in court ordered suspension pending prosecution. VTL § 1193(e).
These mandated court suspensions are imposed within twenty days of the defendant's first court appearance. The court is required to conduct an inquiry to determine if the accusatory instrument(s) are proper in form and content and contain non-hearsay factual evidentiary allegations which allege each and ever element of the offense, and there exists sufficient reasonable cause to believe the defendant committed the offense charged and either had a prior conviction within five years or committed a vehicular related assault or felony.
There are provisions in the Vehicle and Traffic Law which permits but do not require the judicial officer upon arraignment to suspend a motorist's license and/or privilege to drive. See VTL § 510 (3) Permissive Suspensions, and VTL § 510(3)a.
Specifically, CPL § 100.40 requires that the accusatory instrument be jurisdictionally sufficient in that it provides proper due process notice of the charge(s) pursuant to CPL § 100.15 and contains sufficient non-hearsay factual and evidentiary allegations on its face or by any accompanying supporting deposition which provide reasonable cause to believe the offense charged was committed by the defendant. In essence the charging documents or accusatory instrument must allege an offense or offenses with sufficient particularity and be supported by non-hearsay allegations proving each and every element of the offense.
In practical terms this often equates to a simplified traffic information, CPL §100.25, i.e. a ticket coupled with a supporting deposition of the arresting police official. The modern trend is for the supporting depositions to be "idiot proof" in that one is simply required to check-off pre-printed allegations and scribble a few time-tested phrases.
This often provides the court with little to do but take notice of the accusatory instrument, assuming it is sufficient on its face. No searching inquiry is routinely conducted. Thereafter, if the defendant requests a hearing, the defendant is afforded an opportunity to rebut the court's findings by presentation of some evidence. In reality, seldom is a hearing held absent some compelling facial defect which renders the accusatory instruments jurisdictionally defective. For example, no supporting deposition, or if there is one it is unsworn or not based on first-hand knowledge. Occasionally a urine or blood test is administered rather than the breath test and in that instance often the lab results are not completed by the time of arraignment. This may prevent a finding of non-hearsay factual allegations and hence deny a finding of legal sufficiency and the concomitant mandatory suspension pending prosecution.
The practice in this County is that most often the accusatory instruments are facially valid and the result of a breath alcohol test and police officer observations.
Automatic suspension pending prosecutions: Effective 11/1/94
The newly enacted provisions of VTL § 1193(2)(e)(7)(a) reveals a "get tough" attitude toward even first time DWI offenders and The DA of this County has publicly endorsed the new legislation. Upon its enactment then Governor Mario Cuomo stated, " prompt suspension is one of the most effective weapons in the war against drunk drivers. Prompt suspension not only serves as a general deterrent by mandating swift and certain penalties, but also keeps the potentially dangerous driver off the road during adjudication of the criminal charge." Ch. 312, L. 1994, July 20, 1994, Executive Memoranda at pg. 2972.
The provision mandates that all persons charged with the misdemeanor or felony offenses of driving while intoxicated with .10 or more blood alcohol shall have their license to drive suspended pending prosecution of the offense. This pre-conviction penalty is a radical departure from the previous pre-conviction suspensions in which only a few situations would require suspension pending prosecution.
Now virtually ever DWI defendant who takes a blood alcohol test with a reading of .10 or greater shall immediately have their license/privilege suspended The exception has become the rule.
Although the provision has been in force in excess of a year it has been my experience and those of several of my consulted colleagues that the only predictability in this area, has been its unpredictability. The implementation of the mandatory suspension varies county by county, court by court and judge by judge. The procedures among Nassau and Suffolk and the New York City counties is at wide variance; as is each judge's implementation within the individual jurisdictions.
Review of statute:
The statute provides for mandatory license suspension pending prosecutions for all persons charged with a VTL violation of subdivision 2 or 3 of 1192 and when .10 per cent or more blood alcohol content is alleged. Curiously, the statute also cites to §1192.3 which is known as common law intoxication and applies to those situations where no reading or other specific blood alcohol percentage is available. I suspect this was a drafting error because the mandatory suspension pending prosecution is only applicable for § 1192.2 prosecution- .10 or greater blood alcohol percentage when measured or shown by chemical analysis of blood, breath, urine or saliva. Therefore, a chemical analysis and reading is required for suspension and prosecution and § 1192.3 will not involve a specifically alleged blood alcohol percentage reading.
Nevertheless before a court ordered suspension is imposed, a defendant must first be charged with the misdemeanor or felony of driving while intoxicated, VTL §1192.2, and not simply the traffic infraction of driving while impaired, VTL §1192.1, alcohol reading of less than .10%. One charged with the misdemeanor of driving while impaired by drugs, not alcohol, also does not subject one to the mandatory license suspension pending prosecution. VTL §1192.4.
Therefore, the defendant must be alleged to have in excess of .10 percentage of alcohol in his blood, and it must be further alleged to have been scientifically measured or tested by a chemical analysis of blood, breath urine or saliva. Consequently, those defendants who refuse to submit to a chemical analysis of their blood, breath urine or saliva, will not have had the requisite chemical analysis and reading in excess of .10 percentage. Therefore, they can not be subjected to this mandatory license suspension pending prosecution. They will however, still be subjected to another temporary suspension pending the scheduling and outcome of a Department of Motor Vehicles Refusal hearing conducted by a hearing officer. That temporary suspension can ripen to a full revocation upon a finding of valid refusal and be imposed regardless of the disposition of the criminal prosecution, even if it is a complete acquittal.
Those with out of state licenses or no licenses at all may escape the wrath of this legislation. The statute does not address instances where the defendant does not have a New York State Driver's license. This absence would seem to suggest that only New York State licensed drivers are subject to this mandatory suspension
Contrastly, a refusal to submit to a chemical analysis subjects both New York State License holders and out of state license holders and presumably those with simply no license to a temporary suspension and subsequent revocation for refusing to submit to the test.
Courts have taken differing approaches to this anomaly. Some have found as the statues suggest, that pre-conviction suspension is only available to licensed New York State drivers. People v. Nuchow, 164 Misc2d 24, 623 NYS2d 1006 (Rockland Co, 1995); as reported in Gerstenzang, Handling the DWI Case in New York, 1995-96 Ed, West Pub. Co. at Pg.786.
Conversely one court has ruled that the absence of suspension of privileges does not control in light of the Statute's intent. All drivers whether New York State licensed or not, shall have their privilege suspended, pre-conviction. People v. MacDougall, NYLJ 7/14/95 p. 32 col. 2 ( Monroe Co.), reported in Gerstenzang Id. Interestingly, this position does not address the ineligibility for a conditional license for out of state or unlicensed drivers, nor the fact that the Statute repeatedly expressly refers to "licensees" .
Thus far, what is clear is that a defendant alleged to have a chemical reading of .10 or greater of blood alcohol and who possesses a New York State Driver's license faces pre-conviction license suspension pending prosecution of the case.
The statute mandates that the suspension shall take place at arraignment if the chemical test results are available and alleged. If not, the suspension can take place as soon as practical after the test results become available and are alleged. Should a defendant's case be completely disposed of, i.e. plea of guilty to the offense(s) charged or some lesser charge(s) and sentenced at the arraignment, there will be no temporary suspension pending prosecution. The prosecution would have been completed. There will be, however, other suspension/revocations as a result of the conviction and sentence.
As with the previously mandated court imposed suspensions pending prosecution, the Court is required to conduct an inquiry to determine if the accusatory instrument is jurisdictionally sufficient, CPL §100.40, and there exists reasonable cause to believe the defendant committed the offense. The accusatory instrument must be facially sufficient and contain or be accompanied by supporting depositions which factually allege all the elements of the offense in non-hearsay evidentiary form. Likewise the defendant is afforded an opportunity to present evidence and to rebut the court's findings. This procedure is identical to those discussed earlier involving pre-November 1, 1994 temporary suspensions. In the great majority of cases, a finding and concomitant temporary suspension will be issued by the court. Absence a jurisdictional defect or the unavailability of a chemical analysis alleging a specific blood alcohol reading, and an informed defense counsel prepared to challenge the finding, the license will be suspended pending prosecution.
The suspension shall be for the duration of the prosecution. After thirty days the DMV may issue the Defendant a conditional license. This conditional license is much different than the conditional license issued post-conviction pursuant to a mandated suspension/revocation. A pre-conviction conditional license does not require attendance at the drinking and driving program, nor alcohol dependence evaluation or therapy. See VTL § 1196 Alcohol and Drug Rehabilitation Program.
The eligibility for the pre-conviction conditional license, however, is the same as for the post-conviction conditional license. See VTL § 1196 (4) eligibility and 15(a) of NYCRR § 134. One's eligibility for a conditional license is not an academic exercise, but has significant ramifications. If not eligible one will be denied a chance to demonstrate "hardship" and hence be denied a conditional license for the first thirty days of the prosecution and thereafter for the pendency of the prosecution.
The most frequent hurdle to overcome in being eligible for the pre-conviction conditional license is not having participated in the Alcohol and Drug Rehabilitation Program, referred to as the DDP- drinking and driving program, within five years of the instant offense. Even if one has not participated within the five years, one is still ineligible if one has had a prior conviction for driving while impaired or intoxicated within the preceding five years. This prevents defendants from "banking" or attempting to defer their eligibility and hence seek a conditional license for a subsequent and ostensibly more serious violation. If one has been convicted of the traffic infraction of driving while impaired and subjected to a 90 day suspension and does not take advantage of the conditional license and DDP program, they will not be eligible again within five years from the date of that conviction to the date of the new subsequent offense.
If one has previously taken the DDP program and received a conditional license, the eligibility time frame is not from date of conviction to date of the subsequent offense, but rather date of completion of the DDP to date of subsequent offense. The time period of ineligibility is extended to the date of successful completion and hence often in excess of the five year ineligibility period.
The sentencing court can also recommend that the defendant should not be issued a conditional license. This will serve as a bar to a pre-conviction conditional license, as well. A sentence of probation with a special condition of being ineligible for a conditional license will also bar issuance.
There are some other less frequent cause for ineligibility and the practitioner would be well advised to review all of them before giving counsel to one facing pre-conviction suspension. Some of these include a vehicular assault or homicide arising from the operation of a vehicle, involvement in a fatal accident, the applicant does not possess a valid New York State license, or, previous conviction within three years for reckless driving, The Commissioner of Motor Vehicles may also in its discretion deny eligibility due to a poor driving record.
A defendant does not have to wait the thirty days before attempting to obtain a pre-conviction conditional license. One is afforded a chance to demonstrate a hardship exemption or exception for an immediate conditional license.
If eligible for a conditional license the court may find that temporary suspension for even thirty days prior to being eligible for a conditional license is an "extreme hardship." In that event the court is authorized to grant a hardship privilege; or a judicial temporary conditional license. An extreme hardship finding does not relieve the defendant of the temporary suspension, it serves only to alleviate the 30 days suspension before one is then eligible to apply for a conditional license. The hardship privilege license is not as broad as a post-conviction conditional license issued concomitantly with enrollment in the DDP.
The DDP conditional license, post conviction, allows for travel to and from employment, and if the employment requires use of a vehicle then it is also authorized, travel to and from mandated program, to and from school, probation appearances, motor vehicle office and for a three hours consecutive daytime period unrelated to the above. Medical transportation for the applicant or a member of the household and transportation of one's children for school is also authorized.
The court authorized granting of a hardship exemption is significantly narrower. It allows for travel only to and from employment or for medical care for defendant or one of his household members, or for travel for school if necessary for the licensee to complete an education degree.
Interestingly, before one is convicted of a drinking and driving offense the allowable conditional travel is more restrictive than for one actually convicted of the offense. The Constitutionality of the statute and its denial of due process before conviction will not be addressed herein, but are noted to be considerations. The Constitutional challenge may not readily be raised because, if eligible, a conditional license can be issued after thirty days.
What exactly qualifies as an "Extreme Hardship" is difficult to define.
Based on my experience in conducting several hardship hearings and what I have learned from colleagues, there are no set standards for demonstrating a hardship exception. It is not surprising that there are no reported appellate court decisions providing guidance. The defendant denied a hardship privilege only has to wait 30 days before becoming able to apply for a conditional license. Consequently, this is not an area readily subject to appellate review, but I anticipate that eventually this issue will work its may up into the appellate courts.
The Statute defines "extreme hardship" as an inability to obtain alternative means of travel to or from employment, medical treatment for the accused or a member of the household, or travel to and from an accredited school if necessary for the defendant's completion of an educational degree or certificate.
It should be noted that a hardship exemption does not allow for one to drive from various points of employment, unless one successfully argues that place of "employment" varies and includes different point to point locations. This would include a repair technician who travels throughout the day from job to job. This position has meet with some success but my experience is that many judges do not accept the premise and allow only travel from home to one place of employment.
The first point of analysis must start with "Inability" and this is fulcrum of controversy. What one judge determines is inability may simply mean an inconvenience of some additional travel time caused by mass transit connections and schedules. Likewise, the other extreme could also render the hardship exemption moot by determining there simply is never a situation where one can not hire and hence not obtain some form of alternative transportation. I have observed both extremes. Similarly, requisite medical treatment can be provided by ambulance or other hired transports which would then render the exemption impotent.
Depending on how "inability" is construed, court's could grant hardship exemptions to those financially unable to hire alternative transportation including mass transit. Alternatively, should a proven indigent licensee be denied the exemption, it may yield a cogent Equal Protection constitutional challenge. Again this analysis is beyond the scope of this article and left for others to contemplate.
The burden of demonstrating this hardship exception falls entirely on the accused. "A finding of extreme hardship may not be based solely upon the testimony of the licensee." At first glance this would appear to require testimony from the licensee and some other relevant evidence. In practical terms the accused virtually always testifies, but I question whether it is mandated and would pass a constitutional challenge.
Court's have ruled that not only must the licensee testify but a second testimonial witness is required. I do not believe additional testimonial evidence is required. The statute simply requires some other evidence, not solely the testimony of the licensee. This evidence could be non-testimonial, and equally competent. Employment, school and/or medical records duly authenticated could also satisfy. The licensee's testimony coupled with the documentary evidence could demonstrate the applicability of the hardship exception. A finding of hardship would not be based solely upon the licensee testimony but would have been corroborated by competent documentary evidence. Hence, two testimonial witnesses should not be required.
Nevertheless, my argument has not been well received with the Bench and the practitioner would be well advised to produce a second live witness with relevant knowledge.
The statute provides that the arraignment shall not be adjourned for more than three business days for the accused to demonstrate hardship. This should not mean that the hardship hearing must be conducted within three days, it simply means that the license suspension/arraignment pending prosecution can not be delayed at the defendant's request for more than three days. I have seen court's deny hardship hearings if not conducted within three days. This clearly is erroneous. The arraignment and concomitant suspension can be adjourned for up to three days, and then a timely suspension imposed, and thereafter a hardship hearing can be conducted.
As noted, the definition of "inability" has proven to be nebulous, but the following are some suggestions for attempting to demonstrate the hardship exception.
Elements to be demonstrated for the hardship:
1. Establishment of employment/enrollment/medical needs:
Beyond the obvious testimony of the licensee or another with knowledge it is advisable to also introduce corroborating documentary evidence. Payroll records, pay stubs, tax returns, school matriculation records, class schedules and/or medical records with diagnosis and required treatments.
A. Establish type of employment, work hours, duties and if special tools and equipment are required to be transported with the accused to place of travel. Should the accused need to bring equipment which is not suitable on mass transit, this may qualify as an inability and hence hardship. Likewise, if the work hours are erratic and not suitable for scheduled mass transit it may also qualify for a hardship exemption. Similarly, demonstrate the school and/or medical special needs.
2. Location and spatial proximity to and from home and point of travel:
It is helpful for the witness to use and have introduced a fair and accurate map establishing points and distances of travel.
3. Location and spatial proximity to and from home and mass transit hubs:
The Witness must be able to testify as to the closest bus and/or train stop, terminal and station and the distance from and to home and point of travel. The witness should again introduce documentary evidence including published mass transit routes. The witness should also testify regarding the inability to commute not only form home/work/medical to point of travel but also the inability to get from home/work/medical to the required mass transit terminal.
A. The time(s) and locations of requisite mass transit connections.
The witness should be familiar with how long and the actual scheduled time it would take for the contemplated mass transit travel. Again, supporting corroboration is advisable. One should demonstrate the difficulties, and hence hardship in making numerous connections, scheduled and time delays.
4. It should be demonstrated that no co-worker or household member can provide substitute transport.
5. Financial status and inability to hire private alternative means.
As discussed, it could be argued one is never without alternative transpiration because one could simply hire a driver and car for twenty-four hour daily service. This argument should fail because inability should include financial inability, i.e., inability to afford a driver and vehicle.
Practical Considerations:
The pre-conviction suspension requires a time-frame analysis in evaluating the best needs of the accused. Prior to pre-conviction suspension, time was usually on the side of the accused because adverse license sanctions were imposed at conviction, not pending prosecution. As a result, many practitioners delayed resolution of the matter to allow the accused to plan for eventual loss of license/privileges to drive. Luxury of time is no longer a possibility and the practitioner must now act quickly to minimize the pre-conviction suspension.
Any suspension pending prosecution is not credited toward any subsequent suspension/revocation imposed as a result of a conviction for a drinking and driving offense. Therefore, a suspension for a minimum of thirty days and for many a suspension imposed for the entire dependency of the case does not count to reduce any subsequently imposed license sanction. The pre-conviction lose of license is in addition to any license sanction imposed post-conviction.
In some instances a disposition at the time of arraignment may be the best approach. If sentence is simultaneously imposed it will completely avoid any pre-conviction suspension. Similarly, a relatively quick resolution of the matter will serve to mitigate the period of pre-conviction license suspension, and consequently the total period of loss of driving privileges.
In fact, it is possible to handle the matter in such a way as to avoid even a brief loss of all driving privileges; albeit if only as to maintain conditional and limited driving privileges. This is not to advocate for an automatic plea and sentence without the benefit of a complete factual and legal analysis and review of the matter. Rather it is now one additional factor which must be recognized and analyzed before one can attempt to render competent and professional counsel.
If one is convicted and sentenced at arraignment and persuades the court to grant a twenty day stay, the defendant will not lose any driving privileges for twenty days, and thereafter if granted a DMV conditional license still be able to have limited driving privileges. A twenty day stay is available if the sentencing court is convinced the defendant requires a license for travel for work, school or medical necessity and is eligible for a conditional license. It allows for full driving privileges for the next twenty days. In the interim the motorist apples for and should be granted a conditional license which will prevent complete lose of driving privileges. A twenty day stay is not available where the defendant has been convicted of a drinking and driving offense including driving while impaired within the last five years, or has been charged with some vehicular assault or homicide in connection with the instant DWI offense. VTL § 1193(2)(D)2. Nor is a twenty-day stay applicable when the defendant's privileges have been administratively revoked for refusal to take the blood alcohol test because the ability to lawfully drive has been previously revoked.
With this in mind, whether one should consent to take the blood alcohol test and face pre-conviction suspension or refuse to submit to a test and face an administrative revocation, are new burdens which the competent practitioner must now balance. This is in addition to understanding the prosecutorial and evidentiary ramifications of a refusal versus a blood alcohol chemical reading.
Likewise the advisability of attempting to complete the prosecution at arraignment or soon thereafter and hence avoiding or minimizing the pre-conviction license suspension must also be balanced against the always present need for a complete, competent factual and legal defense analysis of the evidence and the existence of defenses to defeat the prosecution.
Whether the pre-conviction license suspension statute is Constitutional and if it imposes penal sanctions, pre-conviction, in hopes of deterring drinking and driving remain open questions. What is clear, however, is that the pre-conviction license suspension statute has served to make a complex legal field more taxing and confusing to the uninitiated sporadic practitioner whom does not concentrate in driving while intoxicated criminal defense.
KARL CHIP SEMAN, a member of Grunwald & Seman, PC is a former Nassau County Assistant District Attorney and whose practice concentrates in criminal and driving while intoxicated defense.
