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DWI/DUI: Pre-Conviction License Suspensions and Hardship Hearings:

Legal and Practical Analysis

For the general practitioner who dabbles in driving while intoxicated defense the challenges of immediate license suspensions and the possibility of a Hardship hearing has proven to be a daunting task.

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. Other pre-conviction suspensions involve instances of repeat offenders and alcohol related injuries and/or fatalities. VTL § 1193(e) and PL Articles 120 and 125.

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/DUI offenders. See, 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-penalty is a radical departure from the previous pre-suspensions in which only a few situations would require suspension pending prosecution.

Now virtually ever DWI/DUI 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.

My experience has been that the only predictability in this area is its unpredictability. The implementation of the mandatory suspension varies county by county, court by court and judge by judge.

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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.

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. See, People v. Nuchow, 164 Misc2d 24, 623 NYS2d 1006 (Rockland Co, 1995); as reported in Gerstenzang, Handling the DWI/DUI Case in New York, 1995-96 Ed, West Pub. Co. at Pg.786, contra, People v. MacDougall, NYLJ 7/14/95 p. 32 col. 2 (Monroe Co.), reported in Gerstenzang Id..

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.

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. 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.

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 Department of Motor Vehicles, Drinking and Driving Program.

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 the 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.

What exactly qualifies as an “Extreme Hardship” is difficult to define, and there are no set standards or any 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 met 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 a 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, courts 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.

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.

Courts 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 courts 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.

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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 from 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 transportation 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.

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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 pendency of the case does not count to reduce any subsequently imposed license sanction. The pre-conviction loss 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.

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 loss 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/DUI 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.

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 who does not concentrate in driving while intoxicated criminal defense.

Karl Seman, a member of Grunwald & Seman, P.C., is a former Nassau County Assistant District Attorney whose practice concentrates in criminal and DWI defense.

As published and appeared in DWI/DUI:-Pre-conviction License Suspensions and Hardship Hearings: Legal and Practical Analysis; the Attorney of Nassau County, Vol 4, No.: 1 (September 1996);© 1996, Karl Chip Seman

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