2015 New York State Magistrates Association Conference Niagara

DWI

JUDICIAL PROBLEMS AND PITFALLS

2015 New York State Magistrates Association Conference

Niagara Falls, New York

PETER GERSTENZANG, ESQ.

Introduction

Peter Gerstenzang is the senior partner in the Albany firm of Gerstenzang,

O'Hern, Sills & Gerstenzang where he focuses on Criminal Defense with an emphasis on DWI

cases and Vehicular Crimes. He commenced his legal career as a prosecutor for the United

States Army in the Republic of Vietnam. From 1972 to 1975, he was an Assistant District

Attorney for the County of Albany. Certified as a breath test operator, he taught at the New

York State Police Academy in their Breath Test Training Program for 12 years.

Mr. Gerstenzang is Board Certified by the National College for DUI Defense

(ANCDD@), and is a former Dean of that college. The NCDD is the only organization accredited

by the American Bar Association to certify attorneys as specialists in DUI law.* His book,

Handling the DWI Case in New York, published by West Group, is considered a standard

reference in the field of Driving While Intoxicated cases.

Peter Gerstenzang is a regular lecturer for the New York State Association of

Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the New

York State Magistrates Association, the New York State Bar Association, and the New York

State Defenders Association. In addition, he lectures for numerous County Bar and Magistrates

Associations, public defense organizations and the New York State Court Clerks Association.

* The NCDD is not affiliated with any governmental authority. See Rules of Prof. Con., Rule

7.4(c)(1); Hayes v. New York Attorney Grievance Comm. of the 8th Jud. Dist., 672 F.3d 158 (2d Cir.

2012).

NEW YORK STATE MAGISTRATES ASSOCIATION

JUDICIAL PROBLEMS AND PITFALLS

September 28, 2015

Materials Prepared by

PETER GERSTENZANG, ESQ.

GERSTENZANG, O’HERN, SILLS & GERSTENZANG

210 Great Oaks Boulevard

Albany, New York 12203

Portions Excerpted from

Handling the DWI Case in New York by

Peter Gerstenzang, Esq. and Eric H. Sills, Esq.

Reprinted with permission of West Publishing Company

TABLE OF CONTENTS

Page

ARRAIGNMENT ISSUES. . . . . . . . . . . . . . . . . . . . . . . 1

A. Arraignment Without Counsel.. . . . . . . . . . . . . . . . 1

B. Defendant Declines Assigned Counsel.. . . . . . . . . . . . 2

C. Defendant Wishes to Proceed Pro Se. . . . . . . . . . . . . 3

D. CPL § 170.10(4)(a). . . . . . . . . . . . . . . . . . . . . 3

CHAPTER 45: SUSPENSION PENDING PROSECUTION.. . . . . . . . . 5

§ 45:1 In general. . . . . . . . . . . . . . . . . . . . . . 5

§ 45:2 VTL § 1193(2)(e)(7) -- The prompt suspension law. . . 6

§ 45:3 ___ Suspension procedure. . . . . . . . . . . . . . . 7

§ 45:4 ___ Applicability to certain underage drivers.. . . 11

§ 45:5 ___ What if defendant appears for arraignment

without counsel?. . . . . . . . . . . . . . . . . . 13

§ 45:6 ___ Applying Pringle. . . . . . . . . . . . . . . . 18

§ 45:7 ___ What role do the People play at a Pringle

hearing?. . . . . . . . . . . . . . . . . . . . . . 18

§ 45:8 ___ Applicability to chemical test result of

exactly .08%. . . . . . . . . . . . . . . . . . . . 19

§ 45:9 ___ Applicability to out-of-state licensees.. . . . 20

§ 45:10 ___ Hardship privilege. . . . . . . . . . . . . . . 21

§ 45:10A ___ Hardship privilege cannot be used to operate

commercial motor vehicle. . . . . . . . . . . . . . 22

§ 45:11 ___ Pre-conviction conditional license. . . . . . . 22

§ 45:12 ___ Applicability of pre-conviction conditional

license to commercial and taxicab drivers.. . . . . 24

§ 45:13 ___ Violation of pre-conviction conditional

license is a traffic infraction; violation of

hardship privilege constitutes AUO. . . . . . . . . 24

§ 45:14 ___ Prompt suspension law does not preclude Court

from suspending defendant's driver's license

under other laws. . . . . . . . . . . . . . . . . . 24

§ 45:15 VTL § 1193(2)(e)(1) -- Suspension pending

prosecution based upon prior conviction or

vehicular crime.. . . . . . . . . . . . . . . . . . 25

§ 45:16 ___ Suspension procedure. . . . . . . . . . . . . . 26

§ 45:17 ___ Effect of failure to comply with statute. . . . 27

§ 45:18 VTL §§ 1193(2)(e)(1) & (7) -- Suspension time

frame.. . . . . . . . . . . . . . . . . . . . . . . 28

§ 45:19 ___ Length of suspension. . . . . . . . . . . . . . 29

§ 45:20 ___ Constitutionality.. . . . . . . . . . . . . . . 29

§ 45:21 ___ Double Jeopardy and Equal Protection. . . . . . 31

§ 45:22 VTL § 1194(2)(b)(3) -- Temporary suspension of

license at arraignment in chemical test refusal

cases.. . . . . . . . . . . . . . . . . . . . . . . 31

§ 45:23 VTL § 510(3-a) -- Discretionary suspensions.. . . . 32

TABLE OF CONTENTS

(Cont'd)

Page

CHAPTER 41: TEST REFUSALS (Select sections from).. . . . . 35

§ 41:35 Procedure upon arrest -- Report of Refusal. . . . . 35

§ 41:36 Report of Refusal -- Verification.. . . . . . . . . 36

§ 41:37 Report of Refusal -- Contents.. . . . . . . . . . . 36

§ 41:38 Report of Refusal -- To whom is it submitted?.. . . 36

§ 41:39 Procedure upon arraignment -- Temporary suspension

of license. . . . . . . . . . . . . . . . . . . . . 37

§ 41:40 Procedure upon arraignment -- Court must provide

defendant with waiver form and notice of DMV

refusal hearing date. . . . . . . . . . . . . . . . 37

§ 41:41 Effect of failure of Court to schedule DMV

refusal hearing.. . . . . . . . . . . . . . . . . . 38

§ 41:42 Effect of delay by Court in forwarding Report of

Refusal to DMV. . . . . . . . . . . . . . . . . . . 38

§ 41:44 Report of Refusal must be forwarded to DMV

within 48 hours of arraignment. . . . . . . . . . . 39

§ 41:45 Forwarding requirement cannot be waived -- even

with consent of all parties.. . . . . . . . . . . . 39

§ 41:28 Chemical test refusal must be "persistent". . . . . 39

§ 41:29 What constitutes a "persistent" refusal?. . . . . . 40

§ 41:88 Admissibility of chemical test refusal evidence

in actions arising under Penal Law. . . . . . . . . 41

CHAPTER 13: (One section from)

§ 13:37 Violation of conditional license as AUO.. . . . . . 42

CHAPTER 49: THE 20-DAY ORDER.. . . . . . . . . . . . . . . 44

§ 49:1 In general. . . . . . . . . . . . . . . . . . . . . 44

§ 49:2 What is a 20-Day Order?.. . . . . . . . . . . . . . 44

§ 49:3 Purpose of a 20-Day Order.. . . . . . . . . . . . . 45

§ 49:4 Scope of a 20-Day Order.. . . . . . . . . . . . . . 45

§ 49:5 Eligibility for a 20-Day Order. . . . . . . . . . . 46

§ 49:6 Chemical test refusals and 20-Day Orders. . . . . . 47

§ 49:7 Court's obligations upon conviction.. . . . . . . . 47

§ 49:8 Advice to defendant regarding 20-Day Order. . . . . 48

§ 49:9 20-Day Orders in certain drug-related cases.. . . . 49

TABLE OF CONTENTS

(Cont'd)

Page

CHAPTER 48: IGNITION INTERLOCK DEVICE PROGRAM. . . . . . . 50

§ 48:1 In general. . . . . . . . . . . . . . . . . . . . . 51

§ 48:2 What is an ignition interlock device?.. . . . . . . 51

§ 48:3 Rules and regulations regarding IIDs. . . . . . . . 51

§ 48:4 Definitions.. . . . . . . . . . . . . . . . . . . . 52

§ 48:5 Scope of IID program. . . . . . . . . . . . . . . . 56

§ 48:6 Who must be required to install and maintain

an IID?.. . . . . . . . . . . . . . . . . . . . . . 56

§ 48:7 Who may not be required to install and maintain

an IID?.. . . . . . . . . . . . . . . . . . . . . . 61

§ 48:8 Cost, installation and maintenance of IID.. . . . . 62

§ 48:9 IID installer must provide defendant with fee

schedule. . . . . . . . . . . . . . . . . . . . . . 63

§ 48:10 What if defendant is unable to afford cost of IID?. 63

§ 48:11 Notification of IID requirement.. . . . . . . . . . 64

§ 48:12 Defendant must install IID within 10 business

days of sentencing. . . . . . . . . . . . . . . . . 65

§ 48:13 Defendant must provide proof of compliance

with IID requirement within 3 business days of

installation. . . . . . . . . . . . . . . . . . . . 65

§ 48:14 DMV will note IID condition on defendant's

driving record. . . . . . . . . . . . . . . . . . . 66

§ 48:15 How often does defendant have to blow into IID?.. . 66

§ 48:16 Lockout mode. . . . . . . . . . . . . . . . . . . . 67

§ 48:17 Circumvention of IID. . . . . . . . . . . . . . . . 67

§ 48:18 Duty of IID monitor to report defendant to Court

and District Attorney.. . . . . . . . . . . . . . . 67

§ 48:19 Use of leased, rented or loaned vehicles. . . . . . 69

§ 48:20 Use of employer-owned vehicles. . . . . . . . . . . 69

§ 48:21 Pre-installation requirements.. . . . . . . . . . . 70

§ 48:22 Mandatory service visit intervals.. . . . . . . . . 71

§ 48:23 Accessibility of IID providers. . . . . . . . . . . 71

§ 48:24 Frequency of reporting by IID providers.. . . . . . 72

§ 48:25 Defendant entitled to report of his/her IID

usage history.. . . . . . . . . . . . . . . . . . . 73

§ 48:26 IID providers must safeguard personal information.. 73

§ 48:27 Post-revocation conditional license.. . . . . . . . 74

§ 48:28 Intrastate transfer of probation/conditional

discharge involving IID requirement.. . . . . . . . 78

§ 48:29 Interstate transfer of probation/conditional

discharge involving IID requirement.. . . . . . . . 79

iii

TABLE OF CONTENTS

(Cont'd)

Page

CHAPTER 48: IGNITION INTERLOCK DEVICE PROGRAM (Cont'd)

§ 48:30 VTL § 1198 does not preclude Court from imposing

any other permissible conditions of probation.. . . 80

§ 48:31 Imposition of IID requirement does not alter

length of underlying license revocation.. . . . . . 81

§ 48:32 IID requirement runs consecutively to jail

sentence. . . . . . . . . . . . . . . . . . . . . . 81

§ 48:33 Applicability of IID requirement to parolees. . . . 84

§ 48:34 IID cannot be removed without "certificate of

completion" or "letter of de-installation". . . . . 85

§ 48:35 Constitutionality of VTL § 1198.. . . . . . . . . . 85

§ 48:36 Necessity of a Frye hearing.. . . . . . . . . . . . 85

MISTAKE OF LAW STOPS. . . . . . . . . . . . . . . . . . . . . 86

VEHICLE STOP DETENTION. . . . . . . . . . . . . . . . . . . . 87

TABLE OF APPENDICES

Page

App.

1 Copy of Hurrell-Harring v. State of New York,

15 N.Y.3d 8 (2010). . . . . . . . . . . . . . . . . 88

2 Advisory Committee on Judicial Ethics'

Opinion 14-01 dated January 30, 2014. . . . . . . . 105

3 New York State Department of Health Rules and

Regulations for Chemical Tests (Breath, Blood,

Urine and Saliva).. . . . . . . . . . . . . . . . . 106

55 20-Day Order and Order of Suspension and

Revocation. . . . . . . . . . . . . . . . . . . . . 124

61 Letter from Department of Motor Vehicles Regarding

Suspension Pending Prosecution. . . . . . . . . . . 125

62 Letter from Department of Motor Vehicles Regarding

Hardship Privilege. . . . . . . . . . . . . . . . . 127

64 DPCA Financial Disclosure Report. . . . . . . . . . 128

65 Order of Suspension Pending Prosecution Hardship

Privilege and Order of Suspension.. . . . . . . . . 133

67 Letters from Department of Motor Vehicles Revising

Opinion Regarding Hardship Privilege. . . . . . . . 134

68 Copy of People v. Guthrie, 25 N.Y.3d 130 (2015).. . 137

69 Copy of Heien v. North Carolina, 135 S.Ct. 530

(2014). . . . . . . . . . . . . . . . . . . . . . . 150

70 Copy of Rodriguez v. United States, 135 S.Ct. 1609

(2015). . . . . . . . . . . . . . . . . . . . . . . 167

71 Copy of People v. Banks, 85 N.Y.2d 558,

626 N.Y.S.2d 986 (1995).. . . . . . . . . . . . . . 184

ARRAIGNMENT ISSUES

A. Arraignment Without Counsel

In Hurrell-Harring v. State of New York, 15 N.Y.3d 8 (2010),

a copy of which is attached at Appendix 1, the New York State

Court of Appeals stated a defendant charged with a crime had a

right to counsel at arraignment. While arraignments in New York

have always included advising the defendant of their right to

counsel, the Court of Appeals went further and stated that

implementation of that right required the presence of counsel at

arraignment:

Contrary to defendants' suggestion and that

of the dissent, nothing in the statute may be

read to justify the conclusion that the

presence of defense counsel at arraignment is

ever dispensable, except at a defendant's

informed option, when matters affecting the

defendant's pretrial liberty or ability

subsequently to defend against the charges

are to be decided.

Id. at 21.

The Court focuses on the fact that an arraignment includes,

among other things, the issuance of a securing order. In that

regard, the Court states: "There is no question that 'a bail

hearing is a critical stage of the State's criminal process'"

(citations omitted). Id. at 20.

The issue of bail takes center stage in the Court's

discussion of the necessity of counsel's presence at arraignment.

While it has been argued that defendants who were released in

their own recognizance with their rights reserved suffered no

detriment in the absence of counsel, that argument cannot be made

where bail is set and the defendant is remanded. Even where an

unrepresented defendant is able to "make" bail, a determination

has been made by the Court that impacts their financial

circumstances at a time when they were not represented by

counsel.

CPL § 510.30 sets forth criteria controlling the

determination on the issue of recognizance or bail. Those

criteria include matters in which the assistance of counsel could

be critical. For example, CPL § 510.30(2)(a):

(i) The principal's character,

reputation, habits and mental

condition;

(ii) His employment and financial

resources; and

(iii) His family ties and the length of his

residence if any in the community; and . . .

(vi) His previous record if any in

responding to court appearances when required

or with respect to flight to avoid criminal

prosecution; and . . .

(viii) If he is a defendant, the weight of

the evidence against him in the pending

criminal action and any other factor

indicating probability or improbability of

conviction.

In light of the Court's determination that the arraignment

is a critical stage of the proceeding, it appears that the Court

is saying that the arraignment of a defendant may not proceed

without counsel, absent an informed waiver of that right by the

defendant.

Recognizing the crucial importance of

arraignment and the extent to which a

defendant's basic liberty and due process *21

interests may then be affected, CPL 180.10

(3) expressly provides for the “right to the

aid of counsel at the arraignment and at

every subsequent stage of the action” and

forbids a court from going forward with the

proceeding without counsel for the defendant,

unless the defendant has knowingly agreed to

proceed in counsel's absence CPL 180.10 [5]).

Id. at 20-21.

Ethically, the only opinion that is directly on point is

Opinion 14-01 dated January 30, 2014, attached as Appendix 2.

Here, the Committee concludes their opinion stating: "Whether a

judge may preside over an arraignment, in which a defendant is

not represented by counsel, raises primarily legal questions;

however, if a judge acts in conformity with governing law the

judge will not violate the Rules Governing Judicial Conduct."

See Opinion 11-87 (emphasis added). Accordingly, if a Judge

determines that the presence of an attorney is required to

conduct an arraignment, absent defendant's waiver, then the Judge

would appear to be ethically bound to have counsel present at

arraignment.

B. Defendant Declines Assigned Counsel

While the mandate to have counsel present at the arraignment

of an indigent accused seems clear, it gets more complicated

where the defendant has the capability to retain private counsel.

What happens when that defendant is brought before the Court at

4:00 AM and wants to retain private counsel? Can the Court

assign a public defender to represent that defendant for purposes

of arraignment?

Clearly, a court that forces a defendant to accept the

services of assigned counsel is in as much violation of the

defendant's Sixth Amendment right to counsel as a court that

proceeds to determine the defendant's interests without counsel.

In addition, does a court have authority to assign counsel to

someone who does not qualify? Is such an assignment a

misappropriation of public funds?

Declining the services of assigned counsel does not

constitute a waiver of a defendant's right to counsel.

Accordingly, this situation presents an even greater challenge

than obtaining counsel for an indigent defendant who either

accepts those services, or proceeds pro se.

C. Defendant Wishes to Proceed Pro Se

It is important to note that while the law requires the

presence of an attorney at arraignment, it also recognizes

defendant's right to proceed without counsel. This is

particularly significant since there are a number of courts that

routinely advise a defendant that they will be held in custody

until the defendant either accepts the assignment of a Legal Aid

lawyer or Public Defender; or retained counsel arrives to

represent the defendant at arraignment. In these courts, the

right to counsel becomes a mandate that forces defendants to

choose between being released on a securing order, or held in

custody pending the arrival of their attorney. They are given

the alternative of accepting an assigned lawyer whom they would

otherwise not choose to represent them, and do so only under the

coercion of continued incarceration.

D. CPL § 170.10(4)(a)

Statutorily, courts are mandated to not only advise the

defendant of their rights, but to take affirmative action to

implement those rights. CPL 170.10(3) states:

The defendant has the right to the aid of

counsel at the arraignment and at every

subsequent stage of the action. If he

appears on such arraignment without counsel,

he has the following rights:

(a) to an adjournment for the purpose of

obtaining counsel.

CPL 170.10(4)(a) states:

Except as provided in subdivision five, the

court must inform the defendant:

(a) Of his rights as prescribed in

subdivision three; and the Court must not

only accord him opportunity to exercise such

rights but must itself take such affirmative

action as is necessary to effectuate them.

West Group

PART XII

PENALTIES AND CONSEQUENCES

CHAPTER 45

SUSPENSION PENDING PROSECUTION

§ 45:1 In general

§ 45:2 VTL § 1193(2)(e)(7) -- The prompt suspension law

§ 45:3 ___ Suspension procedure

§ 45:4 ___ Applicability to certain underage drivers

§ 45:5 ___ What if defendant appears for arraignment without

counsel?

§ 45:6 ___ Applying Pringle

§ 45:7 ___ What role do the People play at a Pringle hearing?

§ 45:8 ___ Applicability to chemical test result of exactly .08%

§ 45:9 ___ Applicability to out-of-state licensees

§ 45:10 ___ Hardship privilege

§ 45:10A ___ Hardship privilege cannot be used to operate

commercial motor vehicle

§ 45:11 ___ Pre-conviction conditional license

§ 45:12 ___ Applicability of pre-conviction conditional license

to commercial and taxicab drivers

§ 45:13 ___ Violation of pre-conviction conditional license is a

traffic infraction; violation of hardship privilege

constitutes AUO

§ 45:14 ___ Prompt suspension law does not preclude Court from

suspending defendant's driver's license under other laws

§ 45:15 VTL § 1193(2)(e)(1) -- Suspension pending prosecution

based upon prior conviction or vehicular crime

§ 45:16 ___ Suspension procedure

§ 45:17 ___ Effect of failure to comply with statute

§ 45:18 VTL §§ 1193(2)(e)(1) & (7) -- Suspension time frame

§ 45:19 ___ Length of suspension

§ 45:20 ___ Constitutionality

§ 45:21 ___ Double Jeopardy and Equal Protection

§ 45:22 VTL § 1194(2)(b)(3) -- Temporary suspension of license at

arraignment in chemical test refusal cases

§ 45:23 VTL § 510(3-a) -- Discretionary suspensions

-----

§ 45:1 In general

A defendant charged with DWI must be aware of several statutes

which, if applicable, call for the mandatory and/or permissive

suspension of his or her driver's license pending prosecution. The

first statute is VTL § 1193(2)(e)(7) -- the so-called "prompt

suspension law" -- which is generally applicable to a defendant who

is charged with DWI and who is alleged to have had a BAC of .08% or

more at the time of his or her arrest. The second statute, VTL §

1193(2)(e)(1), is applicable to a defendant who is charged with

DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence and who

either (a) has been convicted of any violation of VTL § 1192 within

the preceding 5 years, or (b) is charged with Vehicular Assault or

Vehicular Homicide in connection with the current incident. A

third statute, VTL § 1194(2)(b)(3), is applicable to a defendant

who is charged with a violation of VTL § 1192 and who is alleged to

have refused to submit to a chemical test.

Prior to the enactment of the prompt suspension law, VTL §

510(3-a) had occasionally been used to suspend DWI defendants'

driver's licenses pending prosecution. However, in light of VTL §§

1193(2)(e)(1) and (7), as well as the Court of Appeals' decision in

Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82 (1996), continued

reliance upon VTL § 510(3-a) in this regard would appear to be

unwarranted. See Matter of King v. Kay, 39 Misc. 3d 995, 963

N.Y.S.2d 537 (Suffolk Co. Sup. Ct. 2013).

§ 45:2 VTL § 1193(2)(e)(7) -- The prompt suspension law

A defendant who is charged with DWI, Aggravated DWI or DWAI

Combined Influence and who is alleged to have had a BAC of .08% or

more at the time of his or her arrest is subject to the prompt

suspension law. This law provides, in pertinent part:

(7) Suspension pending prosecution; excessive

blood alcohol content. a. Except as provided

in clause a-1 of this subparagraph, a court

shall suspend a driver's license, pending

prosecution, of any person charged with a

violation of [VTL § 1192(2), (2-a), (3) or (4-

a)] who, at the time of arrest, is alleged to

have had .08 of one percent or more by weight

of alcohol in such driver's blood as shown by

chemical analysis of blood, breath, urine or

saliva, made pursuant to [VTL § 1194(2) or

(3)].

VTL § 1193(2)(e)(7)(a).

Notably, the prompt suspension law, by its express terms, only

applies under certain circumstances. For example, the prompt

suspension law only applies where the defendant is charged with VTL

§ 1192(2), (2-a), (3) or (4-a); it does not apply where the

defendant is charged with VTL § 1192(1) (i.e., DWAI) or (4) (i.e.,

DWAI Drugs). In addition, the prompt suspension law only applies

where a chemical test result is obtained; it does not apply where

the defendant is alleged to have refused to submit to a chemical

test. See Appendix 61.

Furthermore, the prompt suspension law only applies where the

defendant's BAC is .08% or more; it does not apply where the

defendant's BAC is below .08%, even if he or she is charged with

VTL § 1192(3). Moreover, the prompt suspension law only applies

where a prosecution is pending. Accordingly, a defendant who

enters a plea of guilty and is sentenced at arraignment is not

subject to the prompt suspension law. On the other hand, a

defendant who enters a plea of guilty at arraignment, but whose

sentencing is adjourned, is subject to the prompt suspension law

(because the prosecution does not terminate until the imposition of

sentence).

§ 45:3 VTL § 1193(2)(e)(7) -- Suspension procedure

Pursuant to the express language of the prompt suspension law,

in order to impose a suspension thereunder the Court must make two

findings. First, the Court "must find that the accusatory

instrument conforms to the requirements of [CPL §] 100.40." VTL §

1193(2)(e)(7)(b). CPL § 100.40 sets forth the facial sufficiency

requirements for local criminal court accusatory instruments.

Second, the Court must find that "there exists reasonable cause to

believe . . . that . . . the holder operated a motor vehicle while

such holder had .08 of one percent or more by weight of alcohol in

his or her blood as was shown by chemical analysis of such person's

blood, breath, urine or saliva, made pursuant to the provisions of

[VTL § 1194]." VTL § 1193(2)(e)(7)(b).

If such tentative findings are made, the statute provides that

"the holder shall be entitled to an opportunity to make a statement

regarding these two issues and to present evidence tending to rebut

the court's findings." VTL § 1193(2)(e)(7)(b).

The Court of Appeals' decision in Pringle v. Wolfe, 88 N.Y.2d

426, 646 N.Y.S.2d 82 (1996), added in several prerequisites to

suspension under the prompt suspension law that do not appear in

the statute itself. For example, Pringle adds numerous procedural

due process requirements into the prompt suspension law which must

be complied with before a suspension pending prosecution thereunder

can be imposed; and adds the threshold requirements that a "court

may not order suspension of the license unless it has in its

possession the results of the chemical test, and, as the

Commissioner concedes, these results must be presented to the court

in certified, documented form (see, CPLR 4518[c])." Id. at 432,

646 N.Y.S.2d at 85-86 (emphasis added). See also People v.

DeRojas, 180 Misc. 2d 690, ___, 693 N.Y.S.2d 404, 405 (App. Term,

2d Dep't 1999).

In addition, Pringle created, and granted the defendant an

absolute right to, a so-called "Pringle hearing." In this regard,

the Pringle Court held that "[u]nder the prompt suspension law, the

court must hold a suspension hearing before the conclusion of the

proceedings required for arraignment and before the driver's

license may be suspended." 88 N.Y.2d at 432, 646 N.Y.S.2d at 85

(emphasis added). At this hearing, "the court must first determine

whether the accusatory instrument is sufficient on its face and

next whether there exists reasonable cause to believe that the

driver operated a motor vehicle while having a blood alcohol level

in excess of [.08] of 1% as shown by a chemical test." Id. at 432,

646 N.Y.S.2d at 85. See also People v. Roach, 226 A.D.2d 55, ___,

649 N.Y.S.2d 607, 608-09 (4th Dep't 1996).

With regard to the opportunity to rebut, the Pringle Court

held that it would be "meaningless" to allow the defendant "to

'rebut the court's findings' after the suspension is ordered." 88

N.Y.2d at 432, 646 N.Y.S.2d at 86. Accordingly, the Court

interpreted the prompt suspension law to require both (a) that the

defendant be "entitled to present evidence to rebut the court's

tentative findings before the court may order the license

suspension," id. at 432, 646 N.Y.S.2d at 86 (emphasis added), and

(b) that it is "incumbent on the court to grant a driver's

reasonable request for a short adjournment if necessary to marshal

evidence to rebut the prima facie showing of 'reasonable cause.'"

Id. at 433, 646 N.Y.S.2d at 86.

In People v. Roach, 226 A.D.2d 55, 649 N.Y.S.2d 607 (4th Dep't

1996), the Appellate Division, Fourth Department, both (a) stated

that to invoke the prompt suspension law the Court must find, inter

alia, that "there is reasonable cause to believe that the driver

failed a properly administered and reliable chemical sobriety

test," id. at ___, 649 N.Y.S.2d at 609 (emphasis added), and (b)

made clear that the defendant's driver's license should not be

suspended pending prosecution if the driver rebuts the prima facie

showing. Id. at ___, 649 N.Y.S.2d at 609. See also People v.

Boulton, 164 Misc. 2d 604, ___, 625 N.Y.S.2d 428, 430 (Troy City

Ct. 1995) ("Vehicle and Traffic Law § 1193(2)(e)(7)(b) appears to

mandate the return of the license to the defendant whenever

evidence is presented tending to rebut the Court's findings. On

close analysis this burden is neither onerous nor cumbersome").

Despite the fact that a lawful VTL § 1192 arrest is a

prerequisite to a valid request to submit to a chemical test, see,

e.g., Matter of Gagliardi v. Department of Motor Vehicles, 144

A.D.2d 882, ___, 535 N.Y.S.2d 203, 204 (3d Dep't 1988) ("In order

for the testing strictures of Vehicle and Traffic Law § 1194 to

come into play, there must have been a lawful arrest for driving

while intoxicated"), and despite the fact that VTL § 1193(2)(e)(7)

requires that the driver fail a chemical test administered pursuant

to VTL § 1194, neither VTL § 1193(2)(e)(7) nor Pringle appear to

contemplate that the driver can challenge the lawfulness of his or

her arrest at a Pringle hearing.

Regardless, the United States Court of Appeals for the Second

Circuit recently held, in a similar DWI-related civil forfeiture

case, that:

[W]e find that the Due Process Clause requires

that claimants be given an early opportunity

to test the probable validity of further

deprivation, including probable cause for the

initial seizure. * * *

As a remedy, we order that claimants be given

a prompt post-seizure retention hearing, with

adequate notice, for motor vehicles seized as

instrumentalities of crime pursuant to

N.Y.C.Code § 14-140(b). * * *

Although we decline to dictate a specific form

for the prompt retention hearing, we hold

that, at a minimum, the hearing must enable

claimants to test the probable validity of

continued deprivation of their vehicles,

including the City's probable cause for the

initial warrantless seizure. In the absence

of either probable cause for the seizure or

post-seizure evidence supporting the probable

validity of continued deprivation, an owner's

vehicle would have to be released during the

pendency of the criminal and civil

proceedings. * * *

In conclusion, we hold that promptly after

their vehicles are seized under N.Y.C.Code §

14-140 as alleged instrumentalities of crime,

plaintiffs must be given an opportunity to

test the probable validity of the City's

deprivation of their vehicles pendente lite,

including probable cause for the initial

warrantless seizure.

Krimstock v. Kelly, 306 F.3d 40, 68, 68-69, 69, 70 (2d Cir. 2002)

(footnote omitted). See also County of Nassau v. Canavan, 1 N.Y.3d

134, 144-45, 770 N.Y.S.2d 277, 286 (2003) (same).

The retention of a motor vehicle driven by an alleged drunken

driver pendente lite pursuant to N.Y.C.Code § 14-140 is analogous

to the suspension of the driver's license of an alleged drunken

driver pendente lite pursuant to VTL § 1193(2)(e)(7). As such,

since the Krimstock Court expressly rejected the New York State

Courts' assessment of the Constitutional due process requirements

associated with the retention of a motor vehicle pendente lite

pursuant to N.Y.C.Code § 14-140 -- Krimstock expressly rejected,

and was critical of, the conclusions of Grinberg v. Safir, 181

Misc. 2d 444, 694 N.Y.S.2d 316 (N.Y. Co. Sup. Ct.), aff'd, 266

A.D.2d 43, 698 N.Y.S.2d 218 (1st Dep't 1999), see Krimstock, 306

F.3d at 53 -- it is reasonable to assume that the Second Circuit

would also disagree with the Pringle Court's apparent conclusion

that the driver need not be given an opportunity to test the

lawfulness of his or her warrantless arrest in connection with a

suspension pendente lite pursuant to VTL § 1193(2)(e)(7).

Nonetheless, in Matter of Vanderminden v. Tarantino, 60 A.D.3d

55, ___-___, 871 N.Y.S.2d 760, 763-64 (3d Dep't 2009), the

Appellate Division, Third Department, without addressing Krimstock

(or other Due Process cases), had the following to say about the

scope of a Pringle hearing:

As relevant to petitioner's remaining

arguments, which pertain to the scope and

conduct of his Pringle hearing, we begin by

noting that the prompt suspension law provides

that, in order for the court to issue a

suspension order, it must find that (1) the

accusatory instrument conforms with CPL

100.40, and (2) reasonable cause exists to

believe that the driver operated a motor

vehicle with ".08 of one percent or more by

weight of alcohol in his or her blood as was

shown by chemical analysis of such person's

blood, breath, urine or saliva" (Vehicle and

Traffic Law § 1193[2] [e][7][b]). Where such

an initial determination is made, Vehicle and

Traffic Law § 1193(2)(e)(7) further provides

that the driver "shall be entitled to an

opportunity to make a statement regarding

these two issues and to present evidence

tending to rebut the court's findings"

(Vehicle and Traffic Law § 1193[2][e][7][b]).

In this case, respondent determined that the

simplified information complied with CPL

100.40 and that, based upon the certified

breath test results, as well as the arresting

officer's supporting deposition, there was

reasonable cause to believe that petitioner

had a BAC of .08% or more while operating a

motor vehicle. Therefore, respondent made the

necessary preliminary findings to issue a

suspension order.

In rebuttal, petitioner called three police

witnesses and attempted to question them

regarding the calibration of the breath test

device, the administration of the test, and

matters relating to probable cause for

petitioner's arrest. Respondent precluded any

questioning relating to the calibration and

maintenance of the breath device as well as to

probable cause for the arrest, concluding that

such matters were outside the scope of a

Pringle hearing.

We are not persuaded by petitioner's

contention that his due process rights were

violated by respondent's rulings. While

issues pertaining to the lawfulness of the

police stop, probable cause for arrest, and

whether the breath test device was working

properly at the time of the test are relevant

to the admissibility of breath test results at

a criminal trial, and may ultimately bear on

the determination of criminal culpability,

they are beyond the scope of a Pringle

hearing. Significantly, a Pringle hearing is

a civil administrative proceeding which runs

parallel to the criminal proceedings. It is

not a plenary hearing requiring the same level

of due process protection as a criminal trial,

nor is it "an opportunity for free-wheeling

discovery regarding the criminal matter."

Indeed, as the Court of Appeals has observed,

to "convert the license suspension proceeding

into a trial on the merits of the underlying

criminal charge . . . would be prohibitively

expensive and cumbersome, and would subvert

the State's compelling interest in promoting

highway safety." For these reasons, we agree

with Supreme Court that respondent

appropriately limited petitioner's inquiry.

(Citations omitted).

Courts will have to reconcile Vanderminden with the Court of

Appeals' holding in Pringle that "the minimal risk of an erroneous

suspension is further diminished by the driver's right to a

meaningful presuspension opportunity to rebut the chemical test

results." Pringle v. Wolfe, 88 N.Y.2d 426, 434, 646 N.Y.S.2d 82,

87 (1996) (emphasis added).

§ 45:4 VTL § 1193(2)(e)(7) -- Applicability to certain underage

drivers

VTL § 1193(2)(e)(7)(a-1) applies to drivers under 18 years of

age who do not yet possess a full class D or class M driver's

license. A class D license is a regular, non-commercial driver's

license. A class M license is a motorcycle driver's license. VTL

§ 1193(2)(e)(7)(a-1) provides:

a-1. A court shall suspend a class DJ or MJ

learner's permit or a class DJ or MJ driver's

license, pending prosecution, of any person

who has been charged with a violation of [VTL

§ 1192(1), (2), (2-a) and/or (3)].

The "J" designation pertains to a junior learner's permit or junior

driver's license. A person between 16 and 18 years of age can

apply for a junior permit/license. A class DJ or MJ driver's

license can be converted to a class D or M driver's license if the

holder is at least 17 years of age and has, among other things,

successfully completed an approved high school or college driver

education course. See 15 NYCRR § 2.5. At age 18, a valid class DJ

or MJ driver's license automatically converts to a class D or M

driver's license.

Notably, unlike the prompt suspension law for class D or M

driver's license holders, VTL § 1193(2)(e)(7)(a-1) applies not only

where the defendant is charged with VTL § 1192(2), (2-a) and/or

(3), but also where he or she is charged with VTL § 1192(1) (i.e.,

DWAI). In addition, unlike the prompt suspension law for class D

or M driver's license holders, no chemical test result is required.

Thus, VTL § 1193(2)(e)(7)(a-1) can be applied to chemical test

refusal cases, and to cases where the chemical test results are not

yet available.

VTL § 1193(2)(e)(7)(b) provides that "the suspension occurring

under clause a-1 of this subparagraph shall occur immediately after

the holder's first appearance before the court on the charge which

shall, whenever possible, be the next regularly scheduled session

of the court after the arrest or at the conclusion of all

proceedings required for the arraignment."

In terms of due process, in order to impose a suspension under

VTL § 1193(2)(e)(7)(1-a), the Court must make two findings. First,

the Court "must find that the accusatory instrument conforms to the

requirements of [CPL §] 100.40." VTL § 1193(2)(e)(7)(b). CPL §

100.40 sets forth the facial sufficiency requirements for local

criminal court accusatory instruments. Second, the Court must find

that:

[T]here exists reasonable cause to believe

either that (a) the holder operated a motor

vehicle while such holder had .08 of one

percent or more by weight of alcohol in his or

her blood as was shown by chemical analysis of

such person's blood, breath, urine or saliva,

made pursuant to the provisions of [VTL §

1194] or (b) the person was the holder of a

class DJ or MJ learner's permit or a class DJ

or MJ driver's license and operated a motor

vehicle while such holder was in violation of

[VTL § 1192(1), (2) and/or (3)].

VTL § 1193(2)(e)(7)(b) (emphasis added).

If such tentative findings are made, the statute provides that

"the holder shall be entitled to an opportunity to make a statement

regarding these two issues and to present evidence tending to rebut

the court's findings." VTL § 1193(2)(e)(7)(b). In addition, the

additional procedural due process requirements set forth in the

Court of Appeals' decision in Pringle v. Wolfe, 88 N.Y.2d 426, 646

N.Y.S.2d 82 (1996), apply. See § 45:3, supra.

§ 45:5 What if defendant appears for arraignment without

counsel?

Perhaps the most disturbing aspect of the prompt suspension

law is the way in which it is administered by many Courts where the

defendant appears for arraignment without counsel. In this regard,

many defendants who appear for arraignment without counsel in DWI

cases have their driver's licenses summarily suspended by the

Court. No findings are made; no Pringle hearing is held; no

opportunity to make a statement or present evidence is offered,

etc.

Simply stated, such Courts are both (a) flagrantly

disregarding the requirements of the statute, and (b) flagrantly

disobeying the Court of Appeals' decision in Pringle v. Wolfe, 88

N.Y.2d 426, 646 N.Y.S.2d 82 (1996). As such, they are flagrantly

disregarding defendants' Constitutional right to Due Process.

But that is not all. Such Courts are also violating one of

the most cherished Constitutional rights of all -- the right to

counsel -- which right has been zealously protected by the Court of

Appeals, and has been codified in CPL § 170.10. In this regard,

the Court of Appeals has made clear that:

The State constitutional right to counsel is a

"cherished principle" worthy of the "highest

degree of [judicial] vigilance." Our

decisional law has advanced this principle by

holding that the State constitutional right to

counsel attaches indelibly in two situations.

First, it arises when formal judicial

proceedings begin, whether or not the

defendant has actually retained or requested a

lawyer. . . . Although these principles are

similar to those developed under the Fifth and

Sixth Amendments to the Federal Constitution,

New York's constitutional right to counsel

jurisprudence developed "independent of its

Federal counterpart" and offers broader

protections.

People v. Ramos, 99 N.Y.2d 27, 32-33, 750 N.Y.S.2d 821, 824 (2002)

(citations and footnote omitted). See also People v. West, 81

N.Y.2d 370, 373, 599 N.Y.S.2d 484, 486 (1993); People v. Ross, 67

N.Y.2d 321, 502 N.Y.S.2d 693 (1986); People v. Cunningham, 49

N.Y.2d 203, 207-08, 424 N.Y.S.2d 421, 423-24 (1980).

This "indelible" right to counsel . . .

attaches upon defendant's request for an

attorney, at arraignment or upon the filing of

an accusatory instrument. Underlying the rule

is the concept that a criminal defendant

confronted by the awesome prosecutorial

machinery of the State is entitled, at a bare

minimum, to the advice of counsel when he is

considering surrender of his valuable legal

rights.

People v. Grimaldi, 52 N.Y.2d 611, 616, 439 N.Y.S.2d 833, 835

(1981) (emphases added) (citations omitted).

In addition, CPL § 170.10(3) provides:

3. The defendant has the right to the aid of

counsel at the arraignment and at every

subsequent stage of the action. If he appears

upon such arraignment without counsel, he has

the following rights:

(a) To an adjournment for the purpose of

obtaining counsel; and

(b) To communicate, free of charge, by letter

or by telephone, for the purposes of

obtaining counsel and informing a

relative or friend that he has been

charged with an offense; and

he is financially unable to obtain the

same; except that this paragraph does not

apply where the accusatory instrument

charges a traffic infraction or

infractions only.

(Emphases added).

Furthermore, CPL § 170.10(4) mandates that the Court "must

inform the defendant":

(a) Of his rights as prescribed in

subdivision three; and the court must not

only accord him opportunity to exercise

such rights but must itself take such

affirmative action as is necessary to

effectuate them.

(Emphasis added).

Numerous Court of Appeals decisions clearly establish that,

for a waiver of the fundamental Constitutional right to counsel to

be valid, the Court must conduct a "searching inquiry," on the

record, into whether the waiver is knowing, voluntary, intelligent

and unequivocal. In People v. Smith, 92 N.Y.2d 516, 683 N.Y.S.2d

164 (1998), the Court of Appeals reiterated that:

This Court has recognized that defendants may

insist on foregoing the benefits associated

with the right to counsel and proceeding on a

pro se basis. We have consistently also

cautioned, however, that the waiver of this

fundamental right to counsel requires that a

trial court must be satisfied that a

defendant's waiver is unequivocal, voluntary

and intelligent; otherwise the waiver will not

be recognized as effective.

To ascertain whether a waiver meets these

appropriately rigorous requirements, the trial

courts "should undertake a sufficiently

'searching inquiry'" in order to be

"reasonably certain" that a defendant

appreciates the "'dangers and disadvantages'

of giving up the fundamental right to

counsel." Governing principles demand that

appropriate record exploration between the

trial court and defendant be conducted, both

to test an accused's understanding of the

waiver and to provide a reliable basis for

appellate review.

When a record lacks the requisite "searching

inquiry" or fails to measure up to the

prescribed standards, a waiver of the right to

counsel will be deemed ineffective. To pass

muster, a "searching inquiry" must reflect

record evidence that defendant's know what

they are doing and that choices are exercised

"with eyes open."

This Court has also signified that these

record exchanges should affirmatively disclose

that a trial court has delved into a

defendant's age, education, occupation,

previous exposure to legal procedures and

other relevant factors bearing on a competent,

intelligent, voluntary waiver.

Id. at 520, 683 N.Y.S.2d at 166-67 (emphases added) (citations

omitted). See also People v. Arroyo, 98 N.Y.2d 101, 103-04, 745

N.Y.S.2d 796, 798 (2002) (same); People v. Slaughter, 78 N.Y.2d

485, 491-92, 577 N.Y.S.2d 206, 210-11 (1991) (same); People v.

Sawyer, 57 N.Y.2d 12, 21, 453 N.Y.S.2d 418, 423 (1982) (same).

In this regard, the United States Supreme Court has made clear

that "[p]resuming waiver from a silent record is impermissible.

The record must show, or there must be an allegation and evidence

which show, that an accused was offered counsel but intelligently

and understandingly rejected the offer. Anything less is not a

waiver." Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890

(1963). See generally People v. Nixon, 21 N.Y.2d 338, 355, 287

N.Y.S.2d 659, 672 (1967) ("In cases involving defendants without

lawyers . . . particular pains must be taken. . . . In such cases

inquiry, well beyond the standards thus far propounded, is

indicated").

The requirement of a valid waiver of the right to counsel is

also codified in CPL § 170.10(6). CPL § 170.10(6) provides, in

pertinent part, that except where the only charges are traffic

infractions:

If a defendant . . . desires to proceed

without the aid of counsel, . . . the court

must permit the defendant to proceed without

the aid of counsel if it is satisfied that he

made such decision with knowledge of the

significance thereof, but if it is not so

satisfied it may not proceed until the

defendant is provided with counsel, either of

his own choosing or by assignment.

Finally, the official Practice Commentaries to CPL § 170.10

provide, in pertinent part, that:

The statutory procedure as outlined, however,

omits an essential first step that should be

the responsibility of the court whenever the

defendant appears without counsel and there

has been no warrant of arrest. This is

scrutiny of the accusatory instrument for

legal sufficiency. The reason for immediate

initial appraisal of that instrument is of

course that it is the basis of the court's

jurisdiction; and, accordingly, if the

instrument is not legally sufficient, the

court has no authority at all to proceed with

the arraignment. It must dismiss the

instrument and discharge the defendant.

If the court is satisfied that it has

jurisdiction, the next step is to advise the

defendant of his or her rights. In this

respect the statute reflects New York's long-

standing policy that every effort be made for

certainty that the defendant is aware, and has

reasonable opportunity to avail himself, of

the right to representation by counsel. Thus

the court, in addition to advising an

unrepresented defendant of the rights set

forth in subdivision three, must not only

accord the defendant an opportunity to

exercise those rights, "but must itself take

such affirmative action as is necessary to

effectuate them."

A defendant has the right to the aid of

counsel at arraignment and at all subsequent

stages of the proceedings, regardless of the

gravity of the charge. Under New York

statutory law this right is broader than the

requirements of the Federal Constitution.

. . .

Note too, the clear statutory direction that,

in cases other than a traffic infraction, the

court must not permit defendant to proceed

without the aid of counsel unless it is

satisfied that the defendant made the choice

to do so with knowledge of the value of

counsel and risks inherent in self-

representation. This requires a "searching

inquiry" as to defendant's appreciation of the

"dangers and disadvantages" of attempting to

cope with the legal proceedings -- e.g.,

various motions, jury selection, introduction

of evidence, objections to same, etc. -- as

distinguished from merely advising as to the

seriousness of the charge and of the fact that

the defendant could be sentenced to

imprisonment. People v. Kaltenbach, 1983, 60

N.Y.2d 797, 469 N.Y.S.2d 685, 457 N.E.2d 791.

Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book

11A, CPL § 170.10, at 12-13 (emphases added) (citations omitted).

Simply stated, an unfortunate byproduct of the prompt

suspension law is that it puts local criminal courts, who are often

under tremendous pressure from groups such as M.A.D.D., S.A.D.D.

and R.I.D., in a position where they are forced to balance the

fundamental need to impartially protect defendants' Constitutional

rights with the perceived need to confiscate the driver's licenses

of accused drunken drivers at any cost -- and, all too often, the

latter concern prevails.

In People v. Rios, 9 Misc. 3d 1, 801 N.Y.S.2d 113 (App. Term,

9th and 10th Jud. Dist. 2005), the defendant's convictions of

various traffic infractions were reversed for failure to properly

advise the defendant of his right to counsel.

§ 45:6 Applying Pringle

After years without any appellate guidance in the area, the

Appellate Division, Third Department, has recently issued several

decisions addressing Pringle and the prompt suspension law. The

leading case addressing the scope of a Pringle hearing is Matter of

Vanderminden v. Tarantino, 60 A.D.3d 55, 871 N.Y.S.2d 760 (3d Dep't

2009), which is discussed at length in § 45:3, supra. See also

Matter of Schermerhorn v. Becker, 64 A.D.3d 843, 883 N.Y.S.2d 325

(3d Dep't 2009); Matter of Schmitt v. Skovira, 53 A.D.3d 918, 862

N.Y.S.2d 167 (3d Dep't 2008).

One issue that is now well settled is that "a Pringle hearing

is a civil administrative proceeding separate and apart from the

underlying criminal prosecution, but which runs parallel thereto."

Schermerhorn, 64 A.D.3d at ___, 883 N.Y.S.2d at 328. See also

Vanderminden, 60 A.D.3d at ___, 871 N.Y.S.2d at 764; Schmitt, 53

A.D.3d at ___, 862 N.Y.S.2d at 170-71. As such, the results of a

Pringle hearing can be challenged via a CPLR Article 78 proceeding.

Schmitt, 53 A.D.3d at ___, 862 N.Y.S.2d at 172.

In addition, Schermerhorn addresses the People's role at a

Pringle hearing. This issue is addressed in § 45:7, infra.

Furthermore, Vanderminden addresses the applicability of the prompt

suspension law to out-of-state licensees. This issue is addressed

in § 45:9, infra.

§ 45:7 VTL § 1193(2)(e)(7) -- What role do the People play at a

Pringle hearing?

In Matter of Schermerhorn v. Becker, 64 A.D.3d 843, 883

N.Y.S.2d 325 (3d Dep't 2009), the Appellate Division, Third

Department, squarely addressed the issue of the People's role at a

Pringle hearing. The Court held that "a district attorney clearly

does not hold the status of a party in a Pringle hearing." Id. at

___, 883 N.Y.S.2d at 328-29. Nonetheless, if they so choose, the

People can play a "limited role" at the hearing. Id. at ___, 883

N.Y.S.2d at 328. Specifically, the People can remind the Court of

the prompt suspension law, offer to provide the Court with the

defendant's chemical test result, and "comment in the event that

defense counsel attempt[s] to markedly expand the narrow scope and

purpose of the Pringle hearing." Id. at ___ & n.2, 883 N.Y.S.2d at

328 & n.2. See generally Matter of Broome County DA's Office v.

Meagher, 8 A.D.3d 732, 777 N.Y.S.2d 567 (3d Dep't 2004); Czajka v.

Breedlove, 200 A.D.2d 263, ___, 613 N.Y.S.2d 741, 742 (3d Dep't

1994) ("The position of District Attorney is a purely statutory

office and, consequently, the only powers and duties which may be

exercised by one acting in that post are those conferred by the

Legislature, either expressly or by necessary implication").

Notably, the Schermerhorn Court made clear that the People are

not required to participate in Pringle hearings. 64 A.D.3d at ___

n.2, 883 N.Y.S.2d at 328 n.2 ("Nor do we suggest that a district

attorney's presence at a Pringle hearing is required").

§ 45:8 VTL § 1193(2)(e)(7) -- Applicability to chemical test

result of exactly .08%

The express language of the prompt suspension law states that

it applies to a DWI defendant who "is alleged to have had .08 of

one percent or more by weight of alcohol in such driver's blood as

shown by chemical analysis of blood, breath, urine or saliva, made

pursuant to [VTL § 1194(2) or (3)]." VTL § 1193(2)(e)(7)(a)

(emphasis added). Nonetheless, this State's highest Court, in

interpreting this law when the proscribed BAC was .10%, clearly and

expressly held that:

The court may not order suspension of the

driver's license unless it has in its

possession the documented results of a

reliable chemical test showing that the

driver's blood alcohol level was in excess of

.10 of 1%.

Pringle v. Wolfe, 88 N.Y.2d 426, 434, 646 N.Y.S.2d 82, 87 (1996)

(emphasis added). In this regard, the "in excess of .10 of 1%"

language does not appear to be a typographical error; rather, it

appears throughout the Pringle decision. See, e.g., id. at 432,

646 N.Y.S.2d at 85 ("At the suspension hearing, the court must

first determine whether the accusatory instrument is sufficient on

its face and next whether there exists reasonable cause to believe

that the driver operated a motor vehicle while having a blood

alcohol level in excess of .10 of 1% as shown by a chemical test")

(emphasis added) (citation omitted); id. at 430, 646 N.Y.S.2d at

84; id. at 435, 646 N.Y.S.2d at 88.

This same rationale should apply to a chemical test result of

exactly .08% now that the statute has been amended to reflect the

change in VTL § 1192(2).

§ 45:9 VTL § 1193(2)(e)(7) -- Applicability to out-of-state

licensees

In Matter of Vanderminden v. Tarantino, 60 A.D.3d 55, ___, 871

N.Y.S.2d 760, 762-63 (3d Dep't 2009), the Appellate Division, Third

Department, held as follows:

The threshold question is whether petitioner,

as the holder of a Vermont license, was

subject to the prompt suspension law.

Petitioner contends that because the statute

authorizes the suspension of a driver's

license but does not specifically refer to an

out-of-state licensee's driving privileges,

the statute applies only to holders of New

York licenses. We do not agree. As noted by

the Court of Appeals, Vehicle and Traffic Law

article 31, of which section 1193 is a part,

is "a tightly and carefully integrated statute

the sole purpose of which is to address drunk

driving." Within the statutory scheme,

section 1193 contains the exclusive criminal

penalties and civil sanctions applicable to

drunk driving offenses, including the prompt

suspension provision that is intended to keep

potentially dangerous drivers off New York's

roadways while their criminal charges are

adjudicated. The role of that provision would

be undermined, and its application rendered

arbitrary, if it is interpreted to allow the

holder of an out-of-state license to continue

driving in New York when, under the same

circumstances, the holder of a New York

license would be prohibited from driving.

Given the comprehensive nature and remedial

purpose of article 31, we do not believe the

Legislature intended such an anomalous result.

Accordingly, we construe Vehicle and Traffic

Law § 1193(2)(e)(7) as authorizing a court to

suspend the driving privileges of an out-of-

state licensee under the same circumstances as

would justify suspending a New York license.

(Citations and footnote omitted). See also People v. MacDougall,

165 Misc. 2d 991, ___, 630 N.Y.S.2d 853, 854 (Brighton Just. Ct.

1995) (same). Cf. People v. Nuchow, 164 Misc. 2d 24, ___, 623

N.Y.S.2d 1006, 1010 (Orangetown Just. Ct. 1995) (reaching opposite

conclusion).

Where an out-of-state licensee's New York driving privileges

are suspended pending prosecution, the Court has the power to issue

him or her a hardship privilege. See People v. Reick, 33 Misc. 3d

774, 930 N.Y.S.2d 429 (N.Y. City Crim. Ct. 2011). See also next

section. Similarly, DMV will issue the person a pre-conviction

conditional license if he or she is otherwise eligible therefor.

§ 45:10 VTL § 1193(2)(e)(7) -- Hardship privilege

VTL § 1193(2)(e)(7)(e) provides, in pertinent part, that "[i]f

the court finds that the suspension imposed pursuant to this

subparagraph will result in extreme hardship, the court must issue

such suspension, but may grant a hardship privilege, which shall be

issued on a form prescribed by the commissioner." (Emphasis

added). The phrase "extreme hardship" as used in VTL §

1193(2)(e)(7)(e) does not take on its literal meaning. Rather, it

is defined as follows:

"[E]xtreme hardship" shall mean the inability

to obtain alternative means of travel to or

from the licensee's employment, or to or from

necessary medical treatment for the licensee

or a member of the licensee's household, or if

the licensee is a matriculating student

enrolled in an accredited school, college or

university travel to or from such licensee's

school, college or university if such travel

is necessary for the completion of the

educational degree or certificate.

Id.

In People v. Reick, 33 Misc. 3d 774, ___, 930 N.Y.S.2d 429,

430-31 (N.Y. City Crim. Ct. 2011), the Court held that a hardship

privilege can be granted to an out-of-state licensee.

Where the defendant requests a so-called "hardship hearing,"

the statute makes clear that the hearing must be held within 3

business days. See VTL § 1193(2)(e)(7)(e) ("In no event shall

arraignment be adjourned or otherwise delayed more than three

business days solely for the purpose of allowing the licensee to

present evidence of extreme hardship") (emphasis added). Notably,

this section merely prohibits the adjournment of the arraignment

for more than 3 business days if the sole purpose for the

adjournment is to allow the licensee to present evidence of extreme

hardship; if an adjournment is granted for reasons other than, or

in addition to, this purpose, the 3-day limitation does not appear

to apply.

In terms of proving extreme hardship, the statute places the

burden of proving extreme hardship on the licensee, "who may

present material and relevant evidence." VTL § 1193(2)(e)(7)(e).

However, "[a] finding of extreme hardship may not be based solely

upon the testimony of the licensee." Id. (emphasis added). In

this regard, the author advises clients to bring proof of where

they live and proof of where they work, go to school, etc.; and, if

possible, a friend or relative who can corroborate such

information. For cases addressing factors to be considered in

determining extreme hardship, see People v. Correa, 168 Misc. 2d

309, 643 N.Y.S.2d 310 (N.Y. City Crim. Ct. 1996), and People v.

Bridgman, 163 Misc. 2d 818, 622 N.Y.S.2d 431 (Canandaigua City Ct.

1995). "The court shall set forth upon the record, or otherwise

set forth in writing, the factual basis for such finding." VTL §

1193(2)(e)(7)(e).

If granted, VTL § 1193(2)(e)(7)(e) provides that a hardship

privilege:

[S]hall permit the operation of a vehicle only

for travel to or from the licensee's

employment, or to or from necessary medical

treatment for the licensee or a member of the

licensee's household, or if the licensee is a

matriculating student enrolled in an

accredited school, college or university

travel to or from such licensee's school,

college or university if such travel is

necessary for the completion of the

educational degree or certificate.

(Emphasis added).

Although the statutory language omits any reference to driving

as part of (i.e., during) the licensee's employment, an informal

opinion from DMV Counsel's Office states that a person who needs to

drive to and from various job sites may do so, but he or she may

not drive for purposes such as running errands, picking up work

materials, etc. See Appendix 62. Notably, however, a more recent

informal opinion from DMV Counsel's Office states that DMV has

"retreated" from this position. See Appendix 67.

§ 45:10A VTL § 1193(2)(e)(7) -- Hardship privilege cannot be used

to operate commercial motor vehicle

"A hardship privilege shall not be valid for the operation of

a commercial motor vehicle." VTL § 1193(2)(e)(7)(e).

§ 45:11 VTL § 1193(2)(e)(7) -- Pre-conviction conditional license

VTL § 1193(2)(e)(7)(d) provides, in pertinent part:

[I]f any suspension occurring under [VTL §

1193(2)(e)(7)] has been in effect for a period

of [30] days, the holder may be issued a

conditional license, in accordance with [VTL §

1196], provided the holder of such license is

otherwise eligible to receive such conditional

license. . . . The commissioner shall

prescribe by regulation the procedures for the

issuance of such conditional license.

The relevant regulations are set forth at 15 NYCRR § 134.18,

which provides as follows:

Section 134.18 Conditional license issued

pending prosecution.

(a) When a driver's license is suspended

pending prosecution pursuant to section

1193(2)(e)(7) of the Vehicle and Traffic Law,

the holder of such license may be issued a

conditional license, 30 days after such

suspension takes effect, provided such person

is eligible for such a license as set forth in

section 134.7 of this Part and section 1196 of

the Vehicle and Traffic Law. Such person

shall not be required to and may not

participate in the alcohol and drug

rehabilitation program when issued a

conditional license pursuant to this section.

(b) Establishment of conditions. Each

conditional license issued under this section

shall be subject to the conditions set forth

in section 134.9(b) of this Part and section

1196 of the Vehicle and Traffic Law.

provisions of section 134.9(c) of this Part

shall be applicable to a conditional license

issued under this section.

(d) Period of validity. A conditional license

issued under this section shall be valid,

unless otherwise revoked, suspended or

expired, until the prosecution for the pending

alcohol-related charge is terminated.

Simply stated, a person whose driver's license is suspended

pursuant to the prompt suspension law is eligible for a pre-

conviction conditional license if he or she would be eligible for

a conditional license if convicted of the underlying DWI charge,

and vice versa.

§ 45:12 VTL § 1193(2)(e)(7) -- Applicability of pre-conviction

conditional license to commercial and taxicab drivers

Prior to September 30, 2005, VTL § 1196(7)(g) provided that

"[a]ny conditional license or privilege issued to a person

convicted of a violation of any subdivision of [VTL § 1192] shall

not be valid for the operation of any commercial motor vehicle or

taxicab as defined in this chapter." (Emphasis added). Since a

person whose driver's license is suspended pending prosecution

pursuant to the prompt suspension law is not convicted of a VTL §

1192 violation, VTL § 1196(7)(g) was inapplicable to a pre-

conviction conditional license issued to such person. Accordingly,

a pre-conviction conditional license could be used to operate a

commercial motor vehicle and/or a taxicab.

A 2007 amendment to VTL § 1193(2)(e)(7)(d) provides that "[a]

conditional license issued pursuant to this subparagraph shall not

be valid for the operation of a commercial motor vehicle."

On the other hand, DMV will still issue a pre-conviction

conditional license valid for the operation of a taxicab.

§ 45:13 VTL § 1193(2)(e)(7) -- Violation of pre-conviction

conditional license is a traffic infraction; violation of

hardship privilege constitutes AUO

VTL § 1196(7)(f) provides that using a pre-conviction

conditional license "for any use other than those authorized

pursuant to [VTL § 1196(7)(a)]" constitutes a traffic infraction.

See also People v. Rivera, 16 N.Y.3d 654, 655-56, 926 N.Y.S.2d 16,

17 (2011) ("a driver whose license has been revoked, but who has

received a conditional license and failed to comply with its

conditions, may be prosecuted only for the traffic infraction of

driving for a use not authorized by his license, not for the crime

of driving while his license is revoked").

By contrast, there is no comparable statute dealing with using

a hardship privilege for a use other than those authorized pursuant

to VTL § 1193(2)(e)(7)(e). As a result, a person caught violating

a hardship privilege can be charged with AUO. See also Chapter 13,

supra.

§ 45:14 VTL § 1193(2)(e)(7) -- Prompt suspension law does not

preclude Court from suspending defendant's driver's

license under other laws

Finally, VTL § 1193(2)(e)(7)(c) expressly states that

"[n]othing contained in this subparagraph shall be construed to

prohibit or limit a court from imposing any other suspension

pending prosecution required or permitted by law." This language

presumably refers to suspensions pending prosecution pursuant to

VTL § 1193(2)(e)(1), VTL § 1194(2)(b)(3) and VTL § 510(3-a), which

are discussed in the sections that follow.

Our thanks to Neal W. Schoen, First Assistant Counsel, and Ida

L. Traschen, Associate Counsel, of DMV Counsel's Office, for their

advice and assistance with regard to the prompt suspension law.

§ 45:15 VTL § 1193(2)(e)(1) -- Suspension pending prosecution

based upon prior conviction or vehicular crime

A defendant who is charged with DWI, Aggravated DWI, DWAI

Drugs or DWAI Combined Influence and who either (a) has been

convicted of any violation of VTL § 1192 within the preceding 5

years, or (b) is charged with Vehicular Assault or Vehicular

Homicide in connection with the current incident, is also subject

to the suspension of his or her driver's license pending

prosecution. In this regard, VTL § 1193(2)(e)(1) provides, in

pertinent part:

(1) Suspension pending prosecution; procedure.

a. Without notice, pending any prosecution,

the court shall suspend such license, where

the holder has been charged with a violation

of [VTL § 1192(2), (2-a), (3), (4) or (4-a)]

and either (i) a violation of a felony under

[Penal Law Article 120 or 125] arising out of

the same incident, or (ii) has been convicted

of any violation under [VTL § 1192] within the

preceding [5] years.

VTL § 1193(2)(e)(1)(a).

Notably, VTL § 1193(2)(e)(1), by its express terms, only

applies under certain circumstances. For example, it only applies

where the defendant is charged with VTL § 1192(2), (2-a), (3), (4)

or (4-a); it does not apply where the defendant is charged with VTL

§ 1192(1) (i.e., DWAI). In addition, VTL § 1193(2)(e)(1) only

applies where the defendant either (a) has been convicted of any

violation of VTL § 1192 within the preceding 5 years, or (b) is

charged with Vehicular Assault or Vehicular Homicide in connection

with the current incident. Furthermore, unlike the prompt

suspension law, no chemical test result is required; thus, VTL §

1193(2)(e)(1) can be applied to chemical test refusal cases.

Like the prompt suspension law, VTL § 1193(2)(e)(1) only

applies where a prosecution is pending. Accordingly, a defendant

who enters a plea of guilty and is sentenced at arraignment is not

subject to VTL § 1193(2)(e)(1). On the other hand, a defendant who

enters a plea of guilty at arraignment, but whose sentencing is

adjourned, is subject thereto (because the prosecution does not

terminate until the imposition of sentence).

§ 45:16 VTL § 1193(2)(e)(1) -- Suspension procedure

In order to impose a suspension under VTL § 1193(2)(e)(1), the

Court must make three findings. First, the Court "must find that

the accusatory instrument conforms to the requirements of [CPL §]

100.40." VTL § 1193(2)(e)(1)(b). CPL § 100.40 sets forth the

facial sufficiency requirements for local criminal court accusatory

instruments. Second, the Court must find that "there exists

reasonable cause to believe that the holder operated a motor

vehicle in violation of [VTL § 1192(2), (2-a), (3), (4) or (4-a)]."

VTL § 1193(2)(e)(1)(b). Critically, this means that reasonable

cause (i.e., probable cause) to believe that the defendant is

guilty of DWI, Aggravated DWI, DWAI Drugs or DWAI Combined

Influence -- and not merely of DWAI Alcohol -- is an element of a

VTL § 1193(2)(e)(1) suspension. Third, the Court must find that

"there exists reasonable cause to believe . . . either (i) the

person had been convicted of any violation under [VTL § 1192]

within the preceding [5] years; or (ii) that the holder committed

a violation of a felony under [Penal Law Article 120 or 125]." VTL

§ 1193(2)(e)(1)(b).

If such tentative findings are made, the statute provides that

"the holder shall be entitled to an opportunity to make a statement

regarding the enumerated issues and to present evidence tending to

rebut the court's findings." VTL § 1193(2)(e)(1)(b).

If a suspension is imposed pursuant to VTL § 1193(2)(e)(1) as

a result of the defendant being charged with a felony under Penal

Law Article 120 or 125:

[A]nd the holder has requested a hearing

pursuant to [CPL Article 180], the court shall

conduct such hearing. If upon completion of

the hearing, the court fails to find that

there is reasonable cause to believe that the

holder committed a felony under [Penal Law

Article 120 or 125] and the holder has not

been previously convicted of any violation of

[VTL § 1192] within the preceding [5] years

the court shall promptly notify the

commissioner and direct restoration of such

license to the license holder unless such

license is suspended or revoked pursuant to

any other provision of this chapter.

VTL § 1193(2)(e)(1)(b).

In light of the Court of Appeals' decision in Pringle v.

Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82 (1996), it seems clear both

(a) that the procedural due process requirements set forth therein

apply equally to both VTL §§ 1193(2)(e)(1) and (7), and (b) that

evidence of a defendant's alleged prior VTL § 1192 conviction must

be submitted to the Court in "certified, documented form." See §

45:3, supra. See also CPL § 60.60; People v. Van Buren, 82 N.Y.2d

878, 609 N.Y.S.2d 170 (1993); People v. Smith, 258 A.D.2d 245, 697

N.Y.S.2d 783 (4th Dep't 1999).

In People v. Osborn, 193 Misc. 2d 173, ___, 749 N.Y.S.2d 853,

855 (Sullivan Co. Ct. 2002), the Court held that "the principles

upon which the Court of Appeals based Pringle, supra in regard to

V & T § 1193(2)(e)(7) apply equally herein with regard to V & T §

1193(2)(e)(1)." In so holding, the Court reasoned that:

A drivers license is a substantial property

right and due process must be followed whether

that property right is sought to be taken

under V & T § 1193(2)(e)(7) or (2)(e)(1).

The statutory language of V & T §

1193(2)(e)(7) is almost exactly the same as V

& T § 1193(2)(e)(1) with the one exception

that one of the criteria for the taking under

V & T § 1193(2)(e)(7) is blood alcohol content

of [.08] or higher while one of the criteria

under V & T § 1193(2)(e)(1) is a prior

conviction of any section of V & T § 1192

within the preceding five years. This

distinction does not mollify one's Due Process

rights under Pringle.

Id. at ___, 749 N.Y.S.2d at 855.

Similarly, in People v. Giacopelli, 171 Misc. 2d 844, ___, 655

N.Y.S.2d 835, 839 (Clarkstown Just. Ct. 1997), the Court held that:

[B]oth sections 1193(2)(e)(1) and (7),

providing for pretrial suspension, have a

"deprivational" effect, and as the very same

"substantial property interest" is at issue

under both statutes, Pringle v. Wolfe must

apply to both sections equally. Perhaps more

importantly, there exists a stronger reason

for a hearing under section 1193(2)(e)(1), as

there exists no tempering of the suspension

with the grant of a "hardship license" as is

available in section 1193(2)(e)(7)(e).

§ 45:17 VTL § 1193(2)(e)(1) -- Effect of failure to comply with

statute

In Matter of Plumley v. Leuenberger, 131 Misc. 2d 543, ___,

500 N.Y.S.2d 911, 913 (Oneida Co. Sup. Ct. 1985), the Court lifted

the suspension of the petitioner's driver's license pending

prosecution and ordered that the license be returned where the Town

Court failed to follow the requirements of the suspension statute.

The Court held that the suspension was untimely in that it occurred

after the arraignment had been completed. Id. at ___, 500 N.Y.S.2d

at 913. In addition, "[n]o findings were made and transmitted to

petitioner. Consequently, he was not given an opportunity to rebut

them. Thus, there has been no compliance with the statute, and the

suspension should be lifted and the license returned." Id. at ___,

500 N.Y.S.2d at 912.

On the other hand, in Matter of Kinney v. Bortle, 136 Misc. 2d

68, ___, 518 N.Y.S.2d 336, 337 (Oneida Co. Sup. Ct. 1987), a

different Judge of the same Court held that the Town Court's

failure to comply with the suspension statute "cannot be construed

as a waiver of the statutory requirement that petitioner's license

be surrendered. A Town Justice simply has no authority to waive

the requirements of V & T § 510(2)(b)(vi)(a) and (b). The Town

Justice's letter directing surrender of the license which was sent

some three week [sic] after petitioner's first appearance, is

legally effective, and petitioner must immediately comply with that

directive."

It should be noted that, since both Plumley and Kinney were

decided long before the Court of Appeals' decision in Pringle v.

Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82 (1996), the continued

validity of these cases is questionable.

In People v. Giacopelli, 171 Misc. 2d 844, ___, 655 N.Y.S.2d

835, 839 (Clarkstown Just. Ct. 1997), which was decided subsequent

to Pringle, the Court held both (a) that Pringle applies equally to

both VTL §§ 1193(2)(e)(1) and (7), and (b) "that having suspended

the defendant's driver's license prior to holding a hearing was a

violation of the defendant's due process rights to a hearing."

§ 45:18 VTL §§ 1193(2)(e)(1) & (7) -- Suspension time frame

The prompt suspension law provides that, with two exceptions,

the Court must impose a suspension thereunder "no later than at the

conclusion of all proceedings required for the arraignment." VTL

§ 1193(2)(e)(7)(b). See also Pringle v. Wolfe, 88 N.Y.2d 426, 429,

432, 646 N.Y.S.2d 82, 84, 85 (1996).

The first exception is that if, for some reason, the results

of the chemical test are not available prior to the completion of

the arraignment (which is only the case where the chemical test is

a blood or urine test, as breath test results are available almost

instantaneously), "the complainant police officer or other public

servant shall transmit such results to the court at the time they

become available." VTL § 1193(2)(e)(7)(b). The Court is

thereafter required to impose a prompt suspension law suspension

"as soon as practicable following the receipt of such results and

in compliance with the requirements of [VTL § 1193(2)(e)(7)(b)]."

Id.

The second exception applies to an underage offender with a

class DJ or MJ driver's license/learner's permit. In this

situation, VTL § 1193(2)(e)(7)(b) provides that "the suspension

occurring under clause a-1 of this subparagraph shall occur

immediately after the holder's first appearance before the court on

the charge which shall, whenever possible, be the next regularly

scheduled session of the court after the arrest or at the

conclusion of all proceedings required for the arraignment."

VTL § 1193(2)(e)(1)(b) provides that the Court must impose a

suspension under VTL § 1193(2)(e)(1) "no later than [20] days after

the holder's first appearance before the court on the charges or at

the conclusion of all proceedings required for the arraignment."

§ 45:19 VTL §§ 1193(2)(e)(1) & (7) -- Length of suspension

If imposed, a suspension pending prosecution pursuant to

either the prompt suspension law or VTL § 1193(2)(e)(1) will remain

in effect for as long as the case is pending. In addition, the

time period during which the defendant's driver's license is

suspended pending prosecution will not be credited toward any post-

conviction suspension/revocation period if the charges ultimately

result in a VTL § 1192 conviction. See People v. DeRojas, 196

Misc. 2d 171, ___, 763 N.Y.S.2d 386, 388-89 (App. Term, 2d Dep't

2003).

Furthermore, it is critical to note that if the defendant's

driver's license is suspended pending prosecution pursuant to VTL

§ 1193(2)(e)(1), the defendant is ineligible for either a hardship

privilege and/or a pre-conviction conditional license (both of

which are discussed at length supra), as he or she would be

ineligible for a conditional license if convicted of the underlying

VTL § 1192 or Penal Law charge(s).

Accordingly, if a plea bargain resolution of the case is

contemplated, defense counsel should attempt to conclude the case

as soon as possible (ideally at arraignment) in order to avoid

unnecessarily extending the length of the defendant's loss of

license.

§ 45:20 VTL §§ 1193(2)(e)(1) & (7) -- Constitutionality

In Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82 (1996),

the Court of Appeals declared VTL § 1193(2)(e)(7) to be

Constitutional. In so holding, the Court summed up the due process

issue as follows:

In sum, though the private interest affected

by the prompt suspension law is substantial,

the severity of the license suspension is

mitigated by its temporary duration, the

availability of a conditional license and

hardship relief, and the significant

protection of a presuspension judicial

hearing, which militates heavily in favor of

the statute's constitutionality. Further

weighing against the driver's interest in

maintaining his license are the slight risk of

an erroneous deprivation and the overriding

State interest in "the prompt removal of a

safety hazard" from its streets. Based on the

foregoing, we hold that the prompt suspension

law affords the driver all the process that is

constitutionally due.

Id. at 435, 646 N.Y.S.2d at 87-88 (citations omitted).

Notably, however, the Court left open the possibility that

additional Constitutional challenges could be raised in the future,

stating that, while "various constitutional challenges to the

prompt suspension law [are] currently pending in the lower courts,

we only have occasion to reach those issues squarely presented on

this appeal." Id. at 429 n.1, 646 N.Y.S.2d at 84 n.1.

In addition, a persuasive argument can be made that VTL §

1193(2)(e)(1) is unconstitutional. Ironically, this argument finds

its support in Pringle, the very case that held VTL § 1193(2)(e)(7)

to be Constitutional. First of all, unlike a suspension pending

prosecution pursuant to VTL § 1193(2)(e)(7), a suspension pending

prosecution pursuant to VTL § 1193(2)(e)(1) can theoretically be

ordered without notice to the defendant. See VTL §

1193(2)(e)(1)(a) ("Without notice, pending any prosecution . . .").

But see People v. Giacopelli, 171 Misc. 2d 844, ___, 655 N.Y.S.2d

835, 839 (Clarkstown Just. Ct. 1997) (Court held that it is a

violation of a defendant's due process rights to suspend his or her

driver's license pending prosecution pursuant to VTL §

1193(2)(e)(1) prior to holding a hearing).

Second, unlike under VTL § 1193(2)(e)(7), hardship relief and

a pre-conviction conditional license are not available under VTL §

1193(2)(e)(1). Accordingly, if a pre-suspension Pringle-type

hearing is not required with regard to suspensions pending

prosecution pursuant to VTL § 1193(2)(e)(1), then 2 of the 3

factors that the Pringle Court found militated in favor of the

constitutionality of VTL § 1193(2)(e)(7) are absent from VTL §

1193(2)(e)(1).

§ 45:21 VTL §§ 1193(2)(e)(1) & (7) -- Double Jeopardy and Equal

Protection

It is well settled that the prosecution of a defendant for DWI

following the suspension of his or her driver's license pending

prosecution does not violate the Double Jeopardy Clause of either

the New York State Constitution or the United States Constitution.

See People v. Haishun, 238 A.D.2d 521, 656 N.Y.S.2d 660 (2d Dep't

1997); People v. Roach, 226 A.D.2d 55, 649 N.Y.S.2d 607 (4th Dep't

1996); Matter of Smith v. County Court of Essex County, 224 A.D.2d

89, 649 N.Y.S.2d 507 (3d Dep't 1996); People v. Malone, 175 Misc.

2d 893, 673 N.Y.S.2d 809 (App. Term, 2d Dep't 1997); People v.

Busby, 175 Misc. 2d 509, 670 N.Y.S.2d 960 (App. Term, 2d Dep't

1997); People v. Steele, 172 Misc. 2d 860, 661 N.Y.S.2d 908 (App.

Term, 2d Dep't 1997); People v. Uzquaino, 172 Misc. 2d 388, 661

N.Y.S.2d 438 (App. Term, 2d Dep't 1997); People v. Conrad, 169

Misc. 2d 1066, 654 N.Y.S.2d 226 (App. Term, 2d Dep't 1996).

Similarly, Courts have rejected the argument that the prompt

suspension law violates the Equal Protection Clause of either the

New York State Constitution or the United States Constitution. See

Roach, 226 A.D.2d at ___, 649 N.Y.S.2d at 610; People v. Condarco,

166 Misc. 2d 470, 633 N.Y.S.2d 930 (N.Y. City Crim. Ct. 1995);

People v. Boulton, 164 Misc. 2d 604, 625 N.Y.S.2d 428 (Troy City

Ct. 1995).

§ 45:22 VTL § 1194(2)(b)(3) -- Temporary suspension of license at

arraignment in chemical test refusal cases

At arraignment in a chemical test refusal case, the Court is

required to temporarily suspend the defendant's driving privileges

pending the outcome of a DMV refusal hearing. See VTL §

1194(2)(b)(3) ("For persons placed under arrest for a violation of

any subdivision of [VTL § 1192], the license or permit to drive and

any non-resident operating privilege shall, upon the basis of such

written report, be temporarily suspended by the court without

notice pending the determination of a hearing as provided in [VTL

§ 1194(2)(c)]"). See also 15 NYCRR § 139.3(a).

Similar provisions exist for individuals charged with Boating

While Intoxicated, see Navigation Law § 49-a; 15 NYCRR § 139.3(b),

and Snowmobiling While Intoxicated. See Parks, Recreation &

Historic Preservation Law § 25.24; 15 NYCRR § 139.3(c). This

procedure does not violate the Due Process Clause. See Matter of

Ventura, 108 Misc. 2d 281, 437 N.Y.S.2d 538 (Monroe Co. Sup. Ct.

1981). See generally Mackey v. Montrym, 443 U.S. 1, 99 S. Ct. 2612

(1979).

However, "[i]f the department fails to provide for such

hearing [15] days after the date of the arraignment of the arrested

person, the license, permit to drive or non-resident operating

privilege of such person shall be reinstated pending a hearing

pursuant to this section." VTL § 1194(2)(c). In addition, "[i]f

the respondent appears for a first scheduled chemical test refusal

hearing, and the arresting officer does not appear, the matter will

be adjourned and any temporary suspension still in effect shall be

terminated." 15 NYCRR § 127.9(c).

In other words, the temporary license suspension imposed at

arraignment in a refusal case lasts the shorter of 15 days or until

the DMV refusal hearing.

§ 45:23 VTL § 510(3-a) -- Discretionary suspensions

VTL § 510(3-a), formerly an unlettered paragraph following VTL

§ 510(3)(i), provides that:

Opportunity to be heard and temporary

suspensions. Where revocation or suspension

is permissive, the holder, unless he shall

waive such right, shall have an opportunity to

be heard except where such revocation or

suspension is based solely on a court

conviction or convictions or on a court

commitment to an institution under the

jurisdiction of the department of mental

hygiene. A license or registration, or the

privilege of a non-resident of operating a

motor vehicle in this state or of the

operation within this state of any motor

vehicle owned by him, may, however, be

temporarily suspended without notice, pending

any prosecution, investigation or hearing.

This section has rarely been used in DWI cases. Rather, it

has generally been implemented in cases of reckless and abhorrent

driving which demonstrated "a reckless disregard for the life or

property of others."

In Matter of Ryan v. Smith, 139 Misc. 2d 151, 527 N.Y.S.2d 174

(Schenectady Co. Sup. Ct. 1988), the petitioner brought an Article

78 proceeding challenging the suspension of his driver's license,

pursuant to VTL § 510(3-a), pending prosecution of a DWI charge.

The suspension appeared to be imposed due to petitioner's

"extraordinarily high" BAC, which was alleged to have been .23%.

In upholding the suspension, the Court noted that:

While V & T § 510 in general may be considered

a study in ambiguous draftsmanship, it appears

from a full reading of the statute, and from

reported decisions that both New York State

and out of state drivers may have their

licenses temporarily suspended pending any

prosecution, investigation or hearing.

Additionally, though the statutory language

and structure is at best murky, it indicates

that the arraigning court possessed the power

to temporarily suspend the license by the

force of the last sentence in § 510(3)

[currently § 510(3-a)]. It must be firmly

kept in mind that the suspension here is of a

temporary, discretionary nature pending

prosecution, and may not be categorized as a

permissive suspension or revocation, or a

mandatory suspension without notice. . . .

Moreover, as a temporary, discretionary

suspension, the procedural due process

safeguards of V & T § 510(2)(b)(vi) [currently

VTL § 1193(2)(e)(1)] do not appear to be

applicable.

Id. at ___, 527 N.Y.S.2d at 175 (citations omitted).

In People v. Forgette, 141 Misc. 2d 1009, ___, 535 N.Y.S.2d

924, 927 (N.Y. City Crim. Ct. 1988), the Court expressly rejected

the premise of Ryan (i.e., that a suspension pending prosecution

pursuant to VTL § 510(3-a) can be based solely on an allegedly high

BAC).

Rather, it seems entirely appropriate that a

temporary suspension be grounded upon evidence

that a driver's continued operation of a motor

vehicle represents a danger to the public.

Part of the criteria should necessarily entail

a review of the arraigned charges. . . .

Additional evidence demonstrating a threat to

the public would normally consist of the

defendant's past driving record. . . .

Finally, it should be noted that a temporary

suspension is indeed just that.

Id. at ___, 535 N.Y.S.2d at 927.

In Matter of Buckson v. Harris, 145 A.D.2d 883, ___, 536

N.Y.S.2d 219, 219-20 (3d Dep't 1988), the petitioner brought an

Article 78 proceeding challenging County Court's Order "which

directed petitioner to refrain from driving a motor vehicle as a

condition of bail." The Appellate Division, Third Department,

dismissed the petition, citing VTL § 510(3)(i) (currently VTL §

510(3-a)), as well as the fact that the petitioner had numerous

prior alcohol-related convictions and was currently charged with

felony DWI.

In Matter of King v. Kay, 39 Misc. 3d 995, 963 N.Y.S.2d 537

(Suffolk Co. Sup. Ct. 2013), the defendant's driver's license was

suspended pending prosecution by a Judge of the Suffolk County

District Court pursuant to VTL § 1193(2)(e)(7). However, another

Judge of the same Court subsequently suspended the defendant's

driver's license pursuant to VTL § 510(3-a). The only conceivable

reason for doing so would be to deprive the defendant of

eligibility for a pre-conviction conditional license. The

defendant challenged the VTL § 510(3-a) suspension via an Article

78 proceeding.

In a very well reasoned decision, the Suffolk County Supreme

Court annulled the VTL § 510(3-a) suspension, finding that VTL §

510(3-a) was inapplicable to the case. In so holding, the Court

reasoned, in part, as follows:

Vehicle and Traffic Law § 510(3-a) does not

authorize a temporary suspension without a

finding that suspension is permissive pursuant

to Vehicle and Traffic Law § 510(3).

Respondent made no such finding. Further,

petitioner is charged solely with violations

of Vehicle and Traffic Law § 1192, which

without further findings, subjects petitioner

to suspension under article 31, not Vehicle

and Traffic Law § 510. In fact, at the time

of respondent's November 26, 2012

determination, petitioner's license had

already been temporarily suspended pursuant to

Vehicle and Traffic Law § 1193(2)(e)(7).

The propriety of the respondent's

administrative determination must be judged

solely on the grounds invoked by respondent.

This Court finds no basis in the law to

support the temporary suspension of

Petitioner's license pursuant to Vehicle and

Traffic Law § 510(3-a) on this record.

Id. at ___, 963 N.Y.S.2d at 544-45.

West Group

CHAPTER 41 (Select sections from)

TEST REFUSALS

§ 41:35 Procedure upon arrest -- Report of Refusal

§ 41:36 Report of Refusal -- Verification

§ 41:37 Report of Refusal -- Contents

§ 41:38 Report of Refusal -- To whom is it submitted?

§ 41:39 Procedure upon arraignment -- Temporary suspension of

license

§ 41:40 Procedure upon arraignment -- Court must provide

defendant with waiver form and notice of DMV refusal

hearing date

§ 41:41 Effect of failure of Court to schedule DMV refusal

hearing

§ 41:42 Effect of delay by Court in forwarding Report of Refusal

to DMV

§ 41:44 Report of Refusal must be forwarded to DMV within 48

hours of arraignment

§ 41:45 Forwarding requirement cannot be waived -- even with

consent of all parties

§ 41:28 Chemical test refusal must be "persistent"

§ 41:29 What constitutes a "persistent" refusal?

§ 41:88 Admissibility of chemical test refusal evidence in

actions arising under Penal Law

-----

§ 41:35 Procedure upon arrest -- Report of Refusal

Where a person has been lawfully arrested for a suspected

violation of VTL § 1192, VTL § 1194(2)(b)(1) provides, in pertinent

part:

(b) Report of refusal. (1) If: (A) such

person having been placed under arrest; or (B)

after a breath [screening] test indicates the

presence of alcohol in the person's system; .

. . and having thereafter been requested to

submit to such chemical test and having been

informed that the person's license or permit

to drive and any non-resident operating

privilege shall be immediately suspended and

subsequently revoked for refusal to submit to

such chemical test or any portion thereof,

whether or not the person is found guilty of

the charge for which such person is arrested

. . ., refuses to submit to such chemical

test or any portion thereof, unless a court

order has been granted pursuant to [VTL §

1194(3)], the test shall not be given and a

written report of such refusal shall be

immediately made by the police officer before

whom such refusal was made.

See also 15 NYCRR § 139.2(a). Similar provisions exist for

individuals charged with Boating While Intoxicated, see Navigation

Law § 49-a; 15 NYCRR § 139.2(b), and Snowmobiling While

Intoxicated. See Parks, Recreation & Historic Preservation Law §

25.24; 15 NYCRR § 139.2(c).

In Matter of Smith v. Commissioner of Motor Vehicles, 103

A.D.2d 865, ___, 478 N.Y.S.2d 103, 104 (3d Dep't 1984), the

Appellate Division, Third Department, rejected a claim that the

validity of the Report of Refusal was somehow affected by the fact

that it was filled out by the chief of police rather than the

arresting officer.

§ 41:36 Report of Refusal -- Verification

A Report of Refusal "may be verified by having the report

sworn to, or by affixing to such report a form notice that false

statements made therein are punishable as a class A misdemeanor

pursuant to [PL § 210.45] and such form notice together with the

subscription of the deponent shall constitute a verification of the

report." VTL § 1194(2)(b)(1). See also 15 NYCRR § 139.2(a).

§ 41:37 Report of Refusal -- Contents

The officer's Report of Refusal must "set forth reasonable

grounds to believe [1] such arrested person . . . had been driving

in violation of any subdivision of [VTL § 1192] . . ., [2] that

said person had refused to submit to such chemical test, and [3]

that no chemical test was administered pursuant to the requirements

of [VTL § 1194(3)]." VTL § 1194(2)(b)(2).

§ 41:38 Report of Refusal -- To whom is it submitted?

The officer's Report of Refusal "shall be presented to the

court upon arraignment of an arrested person." VTL §

1194(2)(b)(2). See also 15 NYCRR § 139.2(d) ("Upon the arraignment

of the defendant, the police officer shall present to the court

copies of the report of refusal to submit to chemical test").

For individuals under the age of 21 charged with a Zero

Tolerance law refusal, see § 15:54, supra.

§ 41:39 Procedure upon arraignment -- Temporary suspension of

license

At arraignment in a refusal case, the Court is required to

temporarily suspend the defendant's driving privileges pending the

outcome of a DMV refusal hearing. See VTL § 1194(2)(b)(3) ("For

persons placed under arrest for a violation of any subdivision of

[VTL § 1192], the license or permit to drive and any non-resident

operating privilege shall, upon the basis of such written report,

be temporarily suspended by the court without notice pending the

determination of a hearing as provided in [VTL § 1194(2)(c)]").

See also 15 NYCRR § 139.3(a).

Similar provisions exist for individuals charged with Boating

While Intoxicated, see Navigation Law § 49-a; 15 NYCRR § 139.3(b),

and Snowmobiling While Intoxicated. See Parks, Recreation &

Historic Preservation Law § 25.24; 15 NYCRR § 139.3(c). This

procedure does not violate the Due Process Clause. See Matter of

Ventura, 108 Misc. 2d 281, 437 N.Y.S.2d 538 (Monroe Co. Sup. Ct.

1981). See generally Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612

(1979).

However, "[i]f the department fails to provide for such

hearing [15] days after the date of the arraignment of the arrested

person, the license, permit to drive or non-resident operating

privilege of such person shall be reinstated pending a hearing

pursuant to this section." VTL § 1194(2)(c). In addition, "[i]f

the respondent appears for a first scheduled chemical test refusal

hearing, and the arresting officer does not appear, the matter will

be adjourned and any temporary suspension still in effect shall be

terminated." 15 NYCRR § 127.9(c).

In other words, the temporary license suspension imposed at

arraignment in a refusal case lasts the shorter of 15 days or until

the DMV refusal hearing.

§ 41:40 Procedure upon arraignment -- Court must provide

defendant with waiver form and notice of DMV refusal

hearing date

VTL § 1194(2)(b)(4) provides that "[t]he court . . . shall

provide such person with a scheduled hearing date, a waiver form,

and such other information as may be required by the commissioner."

15 NYCRR § 139.3(d) provides more specificity in this regard:

Upon arraignment . . ., the court shall

complete a temporary suspension and notice of

hearing form (adding the location and the next

available hearing date and time, as provided

by the commissioner), and give the appropriate

copies to the defendant and the police

officer.

See generally 15 NYCRR § 127.1(a) (general requirements of hearing

notice); 15 NYCRR § 139.2(d) ("The police officer shall bring his

or her own copy of such report to the refusal hearing at the

location and on the date and time specified in the temporary

suspension and notice of hearing form provided by the court").

The "temporary suspension and notice of hearing form"

referenced in 15 NYCRR § 139.3(d) is a 2-sided document. The front

side is entitled "Notice of Temporary Suspension and Notice of

Hearing." The back side is entitled "Waiver of Hearing."

In terms of hearing date availability, 15 NYCRR § 139.4(a)

provides that "[t]he commissioner shall provide to all magistrates,

in advance, a schedule of hearing dates and locations and forms

necessary to carry out the provisions of this Part."

§ 41:41 Effect of failure of Court to schedule DMV refusal

hearing

The arraigning Court will occasionally fail to schedule a DMV

refusal hearing, in violation of VTL § 1194(2)(b)(4) and 15 NYCRR

§ 139.3(d). In this regard, 15 NYCRR § 127.9(a) provides that a

chemical test refusal hearing "may be scheduled by the department

if the court fails to do so."

§ 41:42 Effect of delay by Court in forwarding Report of Refusal

to DMV

In Matter of Mullen v. New York State Dep't of Motor Vehicles,

144 A.D.2d 886, 535 N.Y.S.2d 206 (3d Dep't 1988), Town Court failed

to temporarily suspend petitioner's driver's license at arraignment

and/or forward the Report of Refusal to DMV within 48 hours, as is

required by VTL § 1194(2). Approximately 10 months later,

following a Huntley/probable cause hearing, the Court finally filed

the Report of Refusal. Petitioner sought a writ of prohibition,

claiming that, as a result of Town Court's delay in forwarding the

Report of Refusal to DMV, "respondents never obtained jurisdiction

to review her refusal." Id. at ___, 535 N.Y.S.2d at 207. The

Appellate Division, Third Department, disagreed. In so holding,

the Court reasoned that:

It is well established that mere delay in

scheduling a refusal hearing will not oust

respondents of jurisdiction. . . . [W]e

cannot accept petitioner's premise that the

48-hour transfer provision constitutes a

jurisdictional prerequisite. In our view, the

time schedules specified in Vehicle and

Traffic Law § 1194(2) are directory only. By

providing for an immediate license suspension

procedure in the event of a test refusal, the

Legislature was clearly acting "to protect the

public, not the impaired driver."

Id. at ___, 535 N.Y.S.2d at 207 (citation omitted).

§ 41:44 Report of Refusal must be forwarded to DMV within 48

hours of arraignment

VTL § 1194(2)(b)(3) provides that "[c]opies of such report

must be transmitted by the court to the commissioner. . . . Such

report shall be forwarded to the commissioner within [48] hours of

such arraignment." See also 15 NYCRR § 139.3(d) ("Within 48 hours

of the arraignment, the court must forward copies of both the

refusal report and the temporary suspension and notice of hearing

form to the commissioner").

§ 41:45 Forwarding requirement cannot be waived -- even with

consent of all parties

VTL § 1194(2)(b)(3) expressly provides that copies of the

Report of Refusal "must be transmitted by the court to the

commissioner and such transmittal may not be waived even with the

consent of all the parties." (Emphasis added). See also 15 NYCRR

§ 139.3(d) ("Timely submission of the refusal report to the

Commissioner of Motor Vehicles may not be waived even with consent

of all parties"). This section prohibits the parties from

negotiating a plea bargain pursuant to which the Report of Refusal

is not forwarded to DMV -- which would allow the defendant to avoid

the civil consequences of his or her refusal to submit to a

chemical test.

§ 41:28 Chemical test refusal must be "persistent"

VTL § 1194(2)(f) provides that:

(f) Evidence. Evidence of a refusal to submit

to such chemical test or any portion thereof

shall be admissible in any trial, proceeding

or hearing based upon a violation of the

provisions of [VTL § 1192] but only upon a

showing that the person was given sufficient

warning, in clear and unequivocal language, of

the effect of such refusal and that the person

persisted in the refusal.

(Emphases added).

The "persistence" requirement, while applicable to Court

proceedings based upon a violation of VTL § 1192, is inapplicable

to a DMV chemical test refusal hearing -- where "the only evidence

of refusal necessary [i]s that the petitioner refused at least once

to submit to a chemical test." Matter of Hahne v. New York State

Dep't of Motor Vehicles, 63 A.D.3d 936, 882 N.Y.S.2d 434 (2d Dep't

2009). See also VTL § 1194(2)(c) (one of the issues to be

determined at a DMV chemical test refusal hearing is "did such

person refuse to submit to such chemical test or any portion

thereof").

§ 41:29 What constitutes a "persistent" refusal?

In order for a refusal to be considered "persistent," the

motorist must be "offered at least two opportunities to submit to

the chemical test, 'at least one of which must take place after

being advised of the sanctions for refusal.'" People v. Pagan, 165

Misc. 2d 255, ___, 629 N.Y.S.2d 656, 660 (N.Y. City Crim. Ct. 1995)

(citation omitted). See also People v. Thomas, 46 N.Y.2d 100, 108,

412 N.Y.S.2d 845, 850 (1978) ("Under the procedure prescribed by

section 1194 of the Vehicle and Traffic Law a driver who has

initially declined to take one of the described chemical tests is

to be informed of the consequences of such refusal. If he

thereafter persists in a refusal the test is not to be given (§

1194, subd. 2); the choice is the driver's"); People v. Rosado, 158

Misc. 2d 50, ___ & n.1, ___ & n.3, 600 N.Y.S.2d 624, 625 & n.1, 626

& n.3 (N.Y. City Crim. Ct. 1993); People v. Camagos, 160 Misc. 2d

880, ___, 611 N.Y.S.2d 426, 429 (N.Y. City Crim. Ct. 1993) ("The

dictionary defines persistence as to continue steadfastly or often

annoyingly, especially in spite of opposition"); People v. Garcia-

Cepero, 22 Misc. 3d 490, ___, 874 N.Y.S.2d 689, 694 (Bronx Co. Sup.

Ct. 2008). See generally People v. O'Reilly, 16 Misc. 3d 775, ___,

842 N.Y.S.2d 292, 297-98 (Suffolk Co. Dist. Ct. 2007); People v.

Davis, 8 Misc. 3d 158, ___, 797 N.Y.S.2d 258, 262-63 (Bronx Co.

Sup. Ct. 2005); People v. Nigohosian, 138 Misc. 2d 843, ___, 525

N.Y.S.2d 556, 559 (Nassau Co. Dist. Ct. 1988).

In People v. D'Angelo, 244 A.D.2d 788, ___, 665 N.Y.S.2d 713,

713 (3d Dep't 1997), the Appellate Division, Third Department, held

that "defendant's words and conduct clearly evince a persistent

refusal to submit to a breathalyzer test" where:

[F]ollowing his arrest, defendant was taken to

the City of Glens Falls Police Station,

arriving at around 5:00 A.M. on June 1, 1995,

where he was immediately provided with the

requisite warning. Defendant initially agreed

to take the test but, upon learning that he

was going to be charged with a felony, changed

his mind stating to the officer "What's the

point?" The police then reread the warning to

him, eliciting an unintelligible mumble from

defendant who lay down on a bench and went to

sleep. At 5:37 A.M. and 5:47 A.M., the

arresting officer unsuccessfully attempted to

rouse defendant to ask him to take the test.

See also People v. Richburg, 287 A.D.2d 790, ___, 731 N.Y.S.2d 256,

258 (3d Dep't 2001); People v. O'Reilly, 16 Misc. 3d 775, ___, 842

N.Y.S.2d 292, 297-98 (Suffolk Co. Dist. Ct. 2007).

§ 41:88 Admissibility of chemical test refusal evidence in

actions arising under Penal Law

In People v. Loughlin, 154 A.D.2d 552, ___, 546 N.Y.S.2d 392,

393 (2d Dep't 1989), the Appellate Division, Second Department,

held that "[t]he defendant's contention that evidence of his

refusal to take a breathalyzer test should not have been admitted

because he was charged with crimes arising under the Penal Law

rather than under the Vehicle and Traffic Law . . . is without

merit." See also People v. Stratis, 137 Misc. 2d 661, ___-___, 520

N.Y.S.2d 904, 910-11 (Kings Co. Sup. Ct. 1987) (VTL § 1194(4)

(currently VTL § 1194(2)(f)) applies to Penal Law violations, and

thus evidence of defendant's refusal to submit to chemical test

inadmissible where refusal warnings were not read to defendant in

"clear and unequivocal" language), aff'd on other grounds, 148

A.D.2d 557, 54 N.Y.S.2d 186 (2d Dep't 1989).

§ 13:37 Violation of conditional license as AUO

When a person's driver's license is suspended or revoked in

connection with a VTL § 1192 violation, the person may be eligible

for a conditional driver's license. Where such license is granted

by DMV, although the person's license status is technically

"suspended" or "revoked," he or she will nonetheless possess a

license that is valid for certain purposes. See VTL § 1196(7)(a).

This raises the question: What is the appropriate charge where a

person operates a motor vehicle in violation of a conditional

license?

Prior to the enactment of VTL § 1196(7)(f), an issue existed

as to whether a person driving outside of the parameters of a

conditional license committed AUO, a misdemeanor, or rather merely

committed the traffic infraction of driving in violation of a

licensing restriction, in violation of VTL § 509(3). In People v.

Tousley, 86 Misc. 2d 1059, 383 N.Y.S.2d 996 (Yates Co. Ct. 1976),

the Court held that the appropriate charge under the circumstances

is the traffic infraction. In so holding, the Court commented that

if the Legislature "intended that these specially considered

drivers should be guilty of a misdemeanor for driving other than to

and from work, school or class, at work or during the specific 3

hours on the weekend, . . . then the legislature should have said

so." Id. at ___, 383 N.Y.S.2d at 998. It never did. Thus,

pursuant to the doctrine of legislative acquiescence, which

provides that "[w]here the practical construction of a statute is

well known, the Legislature is charged with knowledge and its

failure to interfere indicates acquiescence," Engle v. Talarico, 33

N.Y.2d 237, 242, 351 N.Y.S.2d 677, 680-81 (1973), this issue should

have been put to rest.

However, 12 years later, in People v. Sabin, 139 Misc. 2d 641,

528 N.Y.S.2d 288 (Westchester Co. Ct. 1988), the Court expressly

disagreed with Tousley, and held that the defendant could validly

be charged with AUO. This time, the Legislature did not acquiesce.

Rather, in 1989, subsequent to Sabin, the Legislature enacted VTL

§ 1196(7)(f), which expressly provides, in pertinent part:

It shall be a traffic infraction for the

holder of a conditional license or privilege

to operate a motor vehicle upon a public

highway for any use other than those

authorized pursuant to [VTL § 1196(7)(a)].

VTL § 1196(7)(f) clearly legislatively overrules Sabin. In

addition, published decisions decided subsequent to the enactment

of VTL § 1196(7)(f) have consistently agreed with Tousley (and

either disagreed with or distinguished Sabin). See, e.g., People

v. Buckley, 13 Misc. 3d 910, 821 N.Y.S.2d 859 (Sullivan Co. Ct.

2006) (AUO 1st charge dismissed where defendant possessed valid

pre-conviction conditional license at time of new DWI charge);

People v. Greco, 151 Misc. 2d 859, ___, 583 N.Y.S.2d 714, 715 (App.

Term, 9th & 10th Jud. Dist. 1992) ("It is the opinion of this Court

that a person holding a restricted use license, has a license and

may not be charged as if he is operating the motor vehicle with a

revoked or suspended license").

In People v. Rivera, 16 N.Y.3d 654, 655-56, 926 N.Y.S.2d 16,

17 (2011), the Court of Appeals (temporarily) resolved this issue,

holding as follows: "a driver whose license has been revoked, but

who has received a conditional license and failed to comply with

its conditions, may be prosecuted only for the traffic infraction

of driving for a use not authorized by his license, not for the

crime of driving while his license is revoked."

Effective November 1, 2013, however, Rivera was partially

legislatively overruled. In this regard, newly enacted VTL §

511(3)(a)(iv) provides that a person commits the felony of AUO 1st

when the person "operates a motor vehicle upon a public highway

while holding a conditional license issued pursuant to [VTL §

1196(7)(a)] while under the influence of alcohol or a drug in

violation of [VTL § 1192(1), (2), (2-a), (3), (4), (4-a) or (5)]."

The title of this new offense (i.e., AUO 1st) is a misnomer -- as

a person who commits this offense is not unlicensed (and is thus

not committing AUO). Perhaps this offense should be a new category

of Aggravated DWI (akin to Leandra's Law) or a new category of

felony DWI.

Regardless, Rivera still applies to cases that fall below the

level of AUO 1st. In other words, a person who drives in violation

of the conditions of a valid conditional license -- but not in a

manner constituting AUO 1st -- "may be prosecuted only for the

traffic infraction of driving for a use not authorized by his

license." Rivera, 16 N.Y.3d at 655-56, 926 N.Y.S.2d at 17.

West Group

CHAPTER 49

THE 20-DAY ORDER

§ 49:1 In general

§ 49:2 What is a 20-Day Order?

§ 49:3 Purpose of a 20-Day Order

§ 49:4 Scope of a 20-Day Order

§ 49:5 Eligibility for a 20-Day Order

§ 49:6 Chemical test refusals and 20-Day Orders

§ 49:7 Court's obligations upon conviction

§ 49:8 Advice to defendant regarding 20-Day Order

§ 49:9 20-Day Orders in certain drug-related cases

-----

§ 49:1 In general

When a defendant is sentenced for a violation of VTL § 1192,

his or her driver's license will be either suspended or revoked

by the Court. See VTL § 1193(2). See also Chapter 46, supra.

At sentencing, the defendant is required to physically surrender

his or her driver's license to the Court. VTL § 1193(2)(d)(1).

Unless the defendant is granted a so-called "20-Day Order"

(also called a "20-Day Stay"), the suspension/revocation of his

or her driver's license takes effect immediately upon sentencing.

Id. A certificate of relief from disabilities issued pursuant to

Correction Law Article 23 cannot be used to override the

provisions of VTL § 1193(2)(d)(1). Id.

§ 49:2 What is a 20-Day Order?

As is noted in the previous section, when a defendant is

sentenced for a violation of VTL § 1192, his or her driver's

license will be either suspended or revoked by the Court. A 20-

Day Order is an Order of the Court staying the imposition of such

suspension/revocation for a period of 20 days from the date of

sentencing.

If the defendant is eligible for a 20-Day Order, the Court

has discretion whether or not to grant it. VTL § 1193(2)(d)(2).

However, in the usual case it is difficult to conceive of a

reason why a Court would not issue a 20-Day Order to an eligible

defendant. In the authors' experience, 20-Day Orders are almost

always granted to eligible defendants. However, some Courts

require that the defendant pay the fine and/or surcharge

associated with the VTL § 1192 offense before they will issue the

Order.

§ 49:3 Purpose of a 20-Day Order

The purpose of a 20-Day Order is to allow a defendant who is

eligible for both the Drinking Driver Program ("DDP") and a

conditional or restricted use license to drive during the time

period that it takes (a) for the Court to complete and file the

paperwork regarding the defendant's VTL § 1192 conviction to DMV,

and (b) for DMV to input the conviction into its computer system.

In this regard, a defendant who is eligible for the DDP and a

conditional or restricted use license cannot sign up for the DDP

and/or obtain a conditional or restricted use license until his

or her VTL § 1192 conviction is officially entered into the DMV

computer system.

Simply stated, DMV will not permit a defendant to sign up

for the DDP or to obtain a conditional or restricted use license

unless and until the defendant's VTL § 1192 conviction triggering

eligibility therefor exists in its computer system. Since it

often takes approximately 7-14 days for a VTL § 1192 conviction

to make its way into the DMV computer system, the 20-Day Order

was created so that defendants who are eligible for the DDP and a

conditional or restricted use license will not receive a period

of complete license suspension while their VTL § 1192 convictions

are being administratively processed by the Court and DMV. The

procedure also benefits the Courts and DMV, as they would be

deluged by inquiries and complaints by defendants who would check

on the status of their convictions on a daily basis until their

paperwork had been processed.

§ 49:4 Scope of a 20-Day Order

Technically speaking, a 20-Day Order does not grant a

defendant driving privileges. Rather, it stays the imposition of

a mandatory suspension/revocation resulting from a VTL § 1192

conviction for a period of 20 days from the date of sentencing.

In other words, a 20-Day Order merely continues the defendant's

existing driving privileges for 20 days.

Thus, if the defendant had a full, unrestricted driver's

license prior to sentencing, the 20-Day Order acts as a full,

unrestricted driver's license for a period of 20 days from the

date of sentencing. In this regard, even if the defendant

obtains a conditional or restricted use license within this 20-

day time period, he or she still has full driving privileges for

the full 20 days.

By contrast, if the defendant had no driving privileges

prior to sentencing (due to, for example, a suspension or

revocation for refusing to submit to a chemical test, 3

speeds/misdemeanors within 18 months, too many points, an

insurance lapse, failure to answer a ticket, failure to pay child

support, etc.), a 20-Day Order would not permit him or her to

drive.

There is a notable exception to this rule. Specifically, if

the defendant's driver's license is suspended pending prosecution

of a VTL § 1192 charge, see Chapter 45, supra, and such

suspension is the only suspension that the defendant is currently

subject to, a VTL § 1192 conviction (arising out of the same

incident) terminates such suspension as a matter of law (as the

prosecution is no longer pending). As such, in such a situation

the defendant would have a 20-day window during which he or she

would have full driving privileges despite the fact that such 20-

day period is sandwiched between a pre-conviction suspension

pending prosecution and a post-conviction suspension/revocation.

§ 49:5 Eligibility for a 20-Day Order

As a general rule, any person who is eligible for the DDP

and a conditional or restricted use license following a VTL §

1192 conviction, see Chapter 50, infra, is eligible for a 20-Day

Order. Specifically, VTL § 1193(2)(d)(2) provides that:

Except where the license holder has been [1] charged

with a violation of [Penal Law Article 120 or 125]

arising out of the same incident or [2] convicted of

such violation or a violation of any subdivision of

[VTL § 1192] within the preceding [5] years, the

[Court] may issue an order making said license

suspension or revocation take effect [20] days after

the date of sentencing.

Many Courts are under the misimpression that a defendant is

only eligible for a 20-Day Order if his or her driver's license

is suspended for a conviction of DWAI, as opposed to revoked for

a DWI. In this regard, as VTL § 1193(2)(d)(2) makes clear, it is

irrelevant whether the defendant's driver's license is revoked as

opposed to suspended. Thus, for example, a defendant with no

prior VTL § 1192 conviction(s) who pleads guilty to misdemeanor

DWI, and whose driver's license is thereby revoked for at least 6

months, is eligible for a 20-Day Order. In fact, a defendant who

is convicted of felony DWI is eligible for a 20-Day Order (as

long as his or her predicate DWI conviction is more than 5 years

old).

However, as is explained in the previous section, even if

the defendant is eligible for (and granted) a 20-Day Order, such

Order would have no effect if the defendant is precluded from

driving for some other reason (e.g., as a condition of

probation).

§ 49:6 Chemical test refusals and 20-Day Orders

As is noted previously, a 20-Day Order merely continues the

defendant's existing driving privileges for 20 days. Thus, if

the defendant had any pre-existing suspension/revocation on his

or her driver's license, a 20-Day Order is useless (as it merely

"continues" nonexistent driving privileges).

In this regard, a chemical test refusal does not affect a

defendant's eligibility for a 20-Day Order, but in many cases a

test refusal will render a 20-Day Order ineffective. For

example, if the defendant in a test refusal case enters a VTL §

1192 plea at arraignment, the Court is required to issue a

temporary suspension of the defendant's driving privileges at

that time -- independent of the VTL § 1192 suspension/revocation

-- based upon the alleged chemical test refusal. See VTL §

1194(2)(b)(3); 15 NYCRR § 139.3(a). See also § 41:39, supra; §

41:53, supra. In such a case, a 20-Day Order would continue

nonexistent driving privileges, and would thus be a legal nullity

(at least until the temporary suspension is terminated).

Similarly, if the defendant's VTL § 1192 plea is entered

subsequent to a DMV chemical test refusal revocation, a 20-Day

Order would continue nonexistent driving privileges and would be

a legal nullity.

Conversely, a valid 20-Day Order would become invalid if the

defendant's driving privileges are revoked at a DMV chemical test

refusal hearing held during the 20-day life span of the Order.

§ 49:7 Court's obligations upon conviction

If a Court grants a 20-Day Order, it is required to provide

a copy thereof to the defendant. VTL § 1193(2)(d)(2). In this

regard, where a defendant's driver's license is suspended/revoked

for a violation of VTL § 1192, the Court issues the defendant a

2-part form entitled:

New York State Department of Motor Vehicles

ORDER OF SUSPENSION OR REVOCATION

The official name of the form is MV-1192. A sample copy of

this form is set forth at Appendix 55. The top portion of the

form is entitled "PART 1 – CONTINUATION OF DRIVING PRIVILEGES."

This portion of the form is the 20-Day Order. Part 2 of the form

is the Order suspending or revoking the defendant's driver's

license. The 20-Day Order portion of the form provides, in

pertinent part:

According to Section 1193 of the Vehicle and

Traffic Law, your driver license will be 9

suspended 9 revoked on (sentence date plus 20

days). This order will allow you to drive,

with the same limitations as your driver

license, until your suspension/revocation

starts. You must have both parts of this

order with you when you drive. If you do not

have both parts of this order with you, you

may be charged with a violation of the

Vehicle and Traffic Law. When the

suspension/revocation starts, you do not have

the right to drive unless you receive a

conditional license. This order must be

turned in before a conditional license can be

issued to you.

Implicit in the concept of the 20-Day Order is the premise

that the Court will forward the paperwork documenting the

defendant's VTL § 1192 conviction to DMV in a timely manner. In

this regard, VTL § 1193(2)(d)(2) mandates that "[t]he court shall

forward to [DMV] the certificates required in [VTL §§ 513 and

514], along with a copy of any order issued pursuant to this

paragraph and the license, within [96] hours of sentencing." In

order to encourage compliance with the 96-hour rule, the State

pays Towns and Villages $15 for each case in which a Town or

Village Court complies with the requirements of VTL §

1193(2)(d)(2). See General Municipal Law § 99-l(1)(i).

§ 49:8 Advice to defendant regarding 20-Day Order

Defense counsel should advise a client to sign up for the

DDP and a conditional or restricted use license while the 20-Day

Order is still valid; but to wait approximately 16-18 days

following sentencing before doing so (unless DMV has notified the

client in a more expeditious fashion that his or her VTL § 1192

conviction has been processed). The reason is that if the client

goes to DMV too soon (i.e., before his or her VTL § 1192

conviction has "hit" the DMV computer system), such trip will be

a waste of time and will have to be repeated.

The client should also be advised that, unless he or she

obtains a conditional or restricted use license, continuing to

drive after the 20-Day Order has expired constitutes the crime of

Aggravated Unlicensed Operation of a Motor Vehicle in the 2nd

Degree. See VTL § 511(2). See also Chapter 13, infra.

§ 49:9 20-Day Orders in certain drug-related cases

VTL § 510(2)(b)(v) provides for the mandatory suspension of

a defendant's driver's license where the defendant is convicted

of, or adjudicated a youthful offender in connection with,

certain crimes involving drugs. In this regard, the Court can

"issue an order making said license suspension take effect [20]

days after the date of sentencing and, if this is done, the

license holder shall be given a copy of the order permitting the

continuation of driving privileges." VTL § 510(2)(b)(vi).

West Group

CHAPTER 48

IGNITION INTERLOCK DEVICE PROGRAM

§ 48:1 In general

§ 48:2 What is an ignition interlock device?

§ 48:3 Rules and regulations regarding IIDs

§ 48:4 Definitions

§ 48:5 Scope of IID program

§ 48:6 Who must be required to install and maintain an IID?

§ 48:7 Who may not be required to install and maintain an IID?

§ 48:8 Cost, installation and maintenance of IID

§ 48:9 IID installer must provide defendant with fee schedule

§ 48:10 What if defendant is unable to afford cost of IID?

§ 48:11 Notification of IID requirement

§ 48:12 Defendant must install IID within 10 business days of

sentencing

§ 48:13 Defendant must provide proof of compliance with IID

requirement within 3 business days of installation

§ 48:14 DMV will note IID condition on defendant's driving

record

§ 48:15 How often does defendant have to blow into IID?

§ 48:16 Lockout mode

§ 48:17 Circumvention of IID

§ 48:18 Duty of IID monitor to report defendant to Court and

District Attorney

§ 48:19 Use of leased, rented or loaned vehicles

§ 48:20 Use of employer-owned vehicles

§ 48:21 Pre-installation requirements

§ 48:22 Mandatory service visit intervals

§ 48:23 Accessibility of IID providers

§ 48:24 Frequency of reporting by IID providers

§ 48:25 Defendant entitled to report of his/her IID usage

history

§ 48:26 IID providers must safeguard personal information

§ 48:27 Post-revocation conditional license

§ 48:28 Intrastate transfer of probation/conditional discharge

involving IID requirement

§ 48:29 Interstate transfer of probation/conditional discharge

involving IID requirement

§ 48:30 VTL § 1198 does not preclude Court from imposing any

other permissible conditions of probation

§ 48:31 Imposition of IID requirement does not alter length of

underlying license revocation

§ 48:32 IID requirement runs consecutively to jail sentence

§ 48:33 Applicability of IID requirement to parolees

§ 48:34 IID cannot be removed without "certificate of

completion" or "letter of de-installation"

§ 48:35 Constitutionality of VTL § 1198

§ 48:36 Necessity of a Frye hearing

-----

§ 48:1 In general

Effective August 15, 2010, every person who is convicted of

common law DWI, per se DWI, or per se Aggravated DWI (i.e., VTL §

1192(2), (2-a) or (3)) -- committed on or after November 18, 2009

-- will be required to install an ignition interlock device in

any vehicle that the person owns or operates (with the exception

of certain employer-owned vehicles) for at least 6 months. See

VTL § 1193(1)(b)(ii); VTL § 1193(1)(c)(iii). See also VTL §

1198; PL § 65.10(2)(k-1). This chapter addresses various issues

associated with the ignition interlock device requirement.

§ 48:2 What is an ignition interlock device?

VTL § 119-a defines "ignition interlock device" (a.k.a.

"IID") as:

Any blood alcohol concentration equivalence

measuring device which connects to a motor

vehicle ignition system and prevents a motor

vehicle from being started without first

determining through a deep lung breath sample

that the operator's equivalent breath alcohol

level does not exceed the calibrated setting

on the device as required by [VTL § 1198].

See also 9 NYCRR § 358.3(l); 10 NYCRR § 59.1(g); 15 NYCRR §

140.1(b)(1).

An ignition interlock device is required to be calibrated to

a "set point" of .025% BAC. See 9 NYCRR § 358.5(c)(2); 9 NYCRR §

358.5(c)(10)(i); 9 NYCRR § 358.5(d)(6); 10 NYCRR § 59.10(c)(2).

The term "set point" means "a pre-set or pre-determined BAC

setting at which, or above, the device will prevent the ignition

of a motor vehicle from operating." 9 NYCRR § 358.3(y).

§ 48:3 Rules and regulations regarding IIDs

The Department of Health ("DOH") is required to publish a

list of approved ignition interlock devices. See VTL §

1198(6)(a). In addition, both the Division of Probation and

Correctional Alternatives ("DPCA") and the DOH are required to

promulgate regulations regarding ignition interlock devices. See

VTL § 1193(1)(g); VTL § 1198(6)(b). Such regulations must

require, at a minimum, that ignition interlock devices:

(1) have features that make circumventing

difficult and that do not interfere with the

normal or safe operation of the vehicle;

(2) work accurately and reliably in an

unsupervised environment;

(3) resist tampering and give evidence if

tampering is attempted;

(4) minimize inconvenience to a sober user;

(5) require a proper, deep, lung breath

sample or other accurate measure of blood

alcohol content equivalence;

(6) operate reliably over the range of

automobile environments;

(7) correlate well with permissible levels of

alcohol consumption as may be established by

the sentencing court or by any provision of

law; and

(8) [be] manufactured by a party covered by

product liability insurance.

VTL § 1198(6)(b).

The relevant DOH regulations are contained in 10 NYCRR Part

59 (a copy of which is set forth at Appendix 3). The relevant

DPCA regulations are contained in 9 NYCRR Part 358 (a copy of

which is set forth at Appendix 64).

§ 48:4 Definitions

Relevant definitions pertaining to the ignition interlock

device program are contained in the DPCA regulations, see 9 NYCRR

§ 358.3, and, to a lesser extent, in the DOH regulations. See 10

NYCRR § 59.1. In this regard, 9 NYCRR § 358.3 provides as

follows:

(a) The term "blood alcohol concentration" or

"BAC" shall mean the weight amount of alcohol

contained in a unit volume of blood, measured

as grams ethanol/100 ml. blood and expressed

as %, grams %, % weight/volume (w/v), and %

BAC. Blood alcohol concentration in this

Part shall be designated as % BAC.

(b) The term "certificate of completion"

shall mean a document issued by the monitor

after the conclusion of the ignition

interlock period, including any extensions or

modifications as may have occurred since the

date of sentence which shows either

completion of the operator's sentence or a

change in the conditions of probation or

conditional discharge no longer requiring the

need for a device.

request, solicit or allow any other person to

blow into an ignition interlock device, or to

start a motor vehicle equipped with the

device, for the purpose of providing the

operator whose driving privileges [are] so

restricted with an operable motor vehicle, or

to blow into an ignition interlock device or

start a motor vehicle equipped with the

device for the purpose of providing an

operable motor vehicle to a person whose

driving privilege is so restricted or to

tamper with an operable ignition interlock

device.

(d) The term "county" shall mean every county

outside of the city of New York, and the City

of New York as a whole.

(e) The term "county executive" shall mean a

county administrator, county manager, county

director or county president and in cities

with a population of one million or more, the

mayor.

(f) The term "division" shall mean the

division of probation and correctional

alternatives.

(g) The term "drinking driver program" shall

mean an alcohol and drug rehabilitation

program established pursuant to [VTL § 1196].

(h) The term "failed tasks" shall mean

failure to install the ignition interlock

device or failure to comply with a service

visit or any requirement resulting therefrom

as prescribed by this Part.

(i) The term "failed tests" shall mean a

failed start-up re-test, failed rolling re-

test, or missed rolling re-test.

(j) The term "failure report recipients"

shall mean all persons or entities required

to receive a report from the monitor of an

operator's failed tasks or failed tests

pursuant to a county's plan which may

include, but is not limited to[,] the

sentencing court, district attorney,

operator's alcohol treatment provider, and

the drinking driver program, where

applicable.

(k) The term "ignition interlock device"

shall mean any blood alcohol concentration

equivalence measuring device which connects

to a motor vehicle ignition system and

prevents a motor vehicle from being started

without first determining through a deep lung

breath sample that the operator's equivalent

blood alcohol level does not exceed the

calibrated setting on the device as required

by standards of the [DOH].

(l) The term "installation/service provider"

shall mean an entity approved by a qualified

manufacturer that installs, services, and/or

removes an ignition interlock device.

(m) The term "lockout mode" shall mean

circumstances enumerated in this Part which

trigger the ignition interlock device to

cause the operator's vehicle to become

inoperable if not serviced within [5]

calendar days.

(n) The term "monitor" shall mean the local

probation department where the operator is

under probation supervision or any person(s)

or entity (ies) designated in the county's

ignition interlock program plan for any

operator granted conditional discharge.

(o) The term "operator" shall mean a person

who is subject to installation of an ignition

interlock device following a conviction of a

violation of [VTL § 1192(2), (2-a) or (3),]

or any crime defined by the Vehicle and

Traffic Law or Penal Law of which an alcohol-

related violation of any provision of [VTL §

1192] is an essential element.

(p) The term "qualified manufacturer" shall

mean a manufacturer or distributor of an

ignition interlock device certified by the

[DOH] which has satisfied the specific

operational requirements herein and has been

approved as an eligible vendor by the [DPCA]

in the designated region where the county is

located.

(q) The term "region" shall mean counties

comprising an area within New York State

designated by the [DPCA] where a qualified

manufacturer is authorized and has agreed to

service.

(r) The term "start-up test" shall mean a

breath test taken by the operator to measure

the operator's blood alcohol concentration

prior to starting the vehicle's ignition.

(s) The term "start-up re-test" shall mean a

breath test taken by the operator to measure

the operator's blood alcohol concentration

required within [5] to [15] minutes of a

failed start-up test.

(t) The term "rolling test" shall mean a

breath test, administered at random

intervals, taken by the operator while the

vehicle is running.

(u) The term "rolling re-test" shall mean a

breath test, taken by the operator while the

vehicle is running, within [1] to [3] minutes

after a failed or missed rolling test.

(1) The term "failed rolling re-test"

shall mean a rolling re-test in which

the operator's BAC is at or above the

set point.

(2) The term "missed rolling re-test"

shall mean failure to take the rolling

re-test within the time period allotted

to do so.

(v) The term "service period" shall mean the

length of time between service visits.

(w) The term "service visit" shall mean a

visit by the operator to[,] or with[,] the

installation/service provider for purposes of

having the ignition interlock device

inspected, monitored, downloaded,

recalibrated, or maintained. It shall also

mean[,] where applicable, the act by any

operator of sending the portion of the

interlock device that contains the data log

and the breath testing module to the

qualified manufacturer for the purposes of

downloading the data, reporting to the

monitor, and recalibrating the device.

(x) The term "set point" shall mean a pre-set

or pre-determined BAC setting at which, or

above, the device will prevent the ignition

of a motor vehicle from operating.

(y) The term "STOP-DWI" shall mean special

traffic options program-driving while

intoxicated.

(z) The term "tamper" shall mean to alter,

disconnect, physically disable, remove,

deface, or destroy an ignition interlock

device or any of its component seals in any

way not authorized by this Part.

§ 48:5 Scope of IID program

VTL § 1198(1) provides as follows:

Applicability. The provisions of this

section shall apply throughout the state to

each person required or otherwise ordered by

a court as a condition of probation or

conditional discharge to install and operate

an ignition interlock device in any vehicle

which he or she owns or operates.

See also 9 NYCRR § 358.2.

§ 48:6 Who must be required to install and maintain an IID?

Effective August 15, 2010, literally everyone who is

convicted of an alcohol-related misdemeanor or felony DWI, or any

other crime in either the VTL or the Penal Law of which an

alcohol-related violation of VTL § 1192 is an essential element,

is required to install and maintain an IID. In this regard, VTL

§ 1198(2)(a) provides:

In addition to any other penalties prescribed

by law, the court shall require that any

person who has been convicted of a violation

of [VTL § 1192(2), (2-a) or (3)], or any

crime defined by this chapter or the penal

law of which an alcohol-related violation of

any provision of [VTL § 1192] is an essential

element, to install and maintain, as a

condition of probation or conditional

discharge, a functioning ignition interlock

device in accordance with the provisions of

this section and, as applicable, in

accordance with the provisions of [VTL §§

1193(1) and (1-a)]; provided, however, the

court may not authorize the operation of a

motor vehicle by any person whose license or

privilege to operate a motor vehicle has been

revoked except as provided herein. For any

such individual subject to a sentence of

probation, installation and maintenance of

such ignition interlock device shall be a

condition of probation.

In addition, prior to November 1, 2013, VTL § 1193(1)(b)(ii)

provided:

In addition to the imposition of any fine or

period of imprisonment set forth in this

paragraph, the court shall also sentence such

person convicted of a violation of [VTL §

1192(2), (2-a) or (3)] to a period of

probation or conditional discharge, as a

condition of which it shall order such person

to install and maintain, in accordance with

the provisions of [VTL § 1198], an ignition

interlock device in any motor vehicle owned

or operated by such person during the term of

such probation or conditional discharge

imposed for such violation of [VTL § 1192]

and in no event for less than [6] months.

Notably, the IID requirement only applied where the

defendant was "convicted" of certain DWI offenses. As such, it

did not apply to youthful offender adjudications (as such

adjudications are not "convictions"). See CPL § 720.10.

VTL § 1193(1)(b)(ii) also provided that the duration of a

mandatory IID requirement was "during the term of such probation

or conditional discharge imposed for such violation of [VTL §

1192] and in no event for a period of less than six months."

This language led to considerable confusion in that many people

who thought that they had received a 6-month IID requirement --

and many Judges who thought that they had imposed a 6-month IID

requirement -- were confronted with a situation in which the

installer would not remove the IID without a Court order on the

ground that the sentence was for a minimum of 6 months as opposed

to for precisely 6 months. In addition, defendants who installed

the IID prior to sentencing were not given credit for "time

served."

The Legislature addressed both of these issues in 2013. In

this regard, effective November 1, 2013, VTL § 1193(1)(b)(ii) now

provides as follows:

In addition to the imposition of any fine or

period of imprisonment set forth in this

paragraph, the court shall also sentence such

person convicted of, or adjudicated a

youthful offender for, a violation of [VTL §

1192(2), (2-a) or (3)] to a term of probation

or conditional discharge, as a condition of

which it shall order such person to install

and maintain, in accordance with the

provisions of [VTL § 1198], an ignition

interlock device in any motor vehicle owned

or operated by such person during the term of

such probation or conditional discharge

imposed for such violation of [VTL § 1192]

and in no event for a period of less than

[12] months; provided, however, that such

period of interlock restriction shall

terminate upon submission of proof that such

person installed and maintained an ignition

interlock device for at least [6] months,

unless the court ordered such person to

install and maintain an ignition interlock

device for a longer period as authorized by

this subparagraph and specified in such

order. The period of interlock restriction

shall commence from the earlier of the date

of sentencing, or the date that an ignition

interlock device was installed in advance of

sentencing. Provided, however, the court may

not authorize the operation of a motor

vehicle by any person whose license or

privilege to operate a motor vehicle has been

revoked pursuant to the provisions of this

section.

(Emphases added).

Similar changes were made to VTL § 1193(1)(c)(iii). Prior

to November 1, 2013, VTL § 1193(1)(c)(iii) provided:

In addition to the imposition of any fine or

period of imprisonment set forth in this

paragraph, the court shall also sentence such

person convicted of a violation of [VTL §

1192(2), (2-a) or (3)] to a period of

probation or conditional discharge, as a

condition of which it shall order such person

to install and maintain, in accordance with

the provisions of [VTL § 1198], an ignition

interlock device in any motor vehicle owned

or operated by such person during the term of

such probation or conditional discharge

imposed for such violation of [VTL § 1192]

and in no event for a period of less than [6]

months.

Effective November 1, 2013, this section provides:

In addition to the imposition of any fine or

period of imprisonment set forth in this

paragraph, the court shall also sentence such

person convicted of, or adjudicated a

youthful offender for, a violation of [VTL §

1192(2), (2-a) or (3)] to a period of

probation or conditional discharge, as a

condition of which it shall order such person

to install and maintain, in accordance with

the provisions of [VTL § 1198], an ignition

interlock device in any motor vehicle owned

or operated by such person during the term of

such probation or conditional discharge

imposed for such violation of [VTL § 1192]

and in no event for a period of less than

[12] months; provided, however, that such

period of interlock restriction shall

terminate upon submission of proof that such

person installed and maintained an ignition

interlock device for at least [6] months,

unless the court ordered such person to

install and maintain a[n] ignition interlock

device for a longer period as authorized by

this subparagraph and specified in such

order. The period of interlock restriction

shall commence from the earlier of the date

of sentencing, or the date that an ignition

interlock device was installed in advance of

sentencing. Provided, however, the court may

not authorize the operation of a motor

vehicle by any person whose license or

privilege to operate a motor vehicle has been

revoked pursuant to the provisions of this

section.

See People v. Nunez, 119 A.D.3d 1373, ___, 988 N.Y.S.2d 396, 397

(4th Dep't 2014).

In People v. Vidaurrazaga, 100 A.D.3d 664, 953 N.Y.S.2d 290

(2d Dep't 2012), the Appellate Division, Second Department, made

clear that sentencing Courts have discretion in determining how

long the IID requirement will remain in effect (i.e., the IID

requirement must remain in effect anywhere from a minimum of 6

months to a maximum of the duration of the period of probation or

conditional discharge), and held that:

Based on the record before us, it is not

clear whether the Supreme Court was aware

that it had discretion in fixing the duration

of the condition requiring the defendant to

install and maintain an ignition interlock

device in his automobile. We therefore remit

the matter to the Supreme Court, Nassau

County, for resentencing. We express no

opinion as to the appropriate duration of the

condition.

Id. at ___, 953 N.Y.S.2d at 293 (citations omitted).

Pursuant to VTL § 1193(1-a), where a defendant is convicted

of DWI in violation of VTL § 1192(2) or (3) after having been

previously convicted of DWI in violation of VTL § 1192(2) or (3)

within the preceding 5 years, the sentencing Court must, inter

alia:

[O]rder the installation of an ignition

interlock device approved pursuant to [VTL §

1198] in any motor vehicle owned or operated

by the person so sentenced. Such devices

shall remain installed during any period of

license revocation required to be imposed

pursuant to [VTL § 1193(2)(b)], and, upon the

termination of such revocation period, for an

additional period as determined by the court.

VTL § 1193(1-a)(c)(i).

Moreover, "[a]ny person ordered to install an ignition

interlock device pursuant to [VTL § 1193(1-a)(c)] shall be

subject to the provisions of [VTL § 1198(4), (5), (7), (8) and

(9)]." VTL § 1193(1-a)(c).

§ 48:7 Who may not be required to install and maintain an IID?

The IID program only applies to people who have been

convicted of a violation of VTL § 1192(2), (2-a) or (3), or any

other crime in either the VTL or the Penal Law of which an

alcohol-related violation of VTL § 1192 is an essential element.

See PL § 65.10(2)(k-1) ("The court may require [the IID]

condition only where a person has been convicted of a violation

of [VTL § 1192(2), (2-a) or (3)], or any crime defined by the

[VTL] or this chapter of which an alcohol-related violation of

any provision of [VTL § 1192] is an essential element"). See

also VTL § 1198(2)(a); VTL § 1198(3)(d); 9 NYCRR § 358.1; 15

NYCRR § 140.2.

Thus, a defendant who has been convicted of DWAI in

violation of VTL § 1192(1), DWAI Drugs in violation of VTL §

1192(4), or DWAI Combined Influence in violation of VTL § 1192(4-

a), cannot be ordered to install and maintain an IID. See People

v. Levy, 91 A.D.3d 793, ___, 938 N.Y.S.2d 315, 316 (2d Dep't

2012) ("We agree with the defendant that the County Court

improperly directed, as a condition of probation, that the

defendant install an ignition interlock device on her motor

vehicle. . . . Here, the defendant's conviction for operating a

motor vehicle while under the influence of drugs pursuant to

Vehicle and Traffic Law § 1192(4) falls outside the scope of

Penal Law § 65.10(2)(k-1)"). See also VTL § 1198(2)(c) ("Nothing

contained in [VTL § 1198] shall authorize a court to sentence any

person to a period of probation or conditional discharge for the

purpose of subjecting such person to the provisions of [VTL §

1198], unless such person would have otherwise been so eligible

for a sentence of probation or conditional discharge").

In People v. Uribe, 109 A.D.3d 844, ___, 971 N.Y.S.2d 60, 60

(2d Dep't 2013), the same Court that decided Levy, supra,

summarily stated (without explanation) that "[t]he County Court

correctly imposed an interlock ignition [sic] requirement as an

element of the defendant's sentence (see [VTL] §§ 1192[4-a],

1198[2])." However, since a person can violate VTL § 1192(4-a)

without consuming alcohol -- and thus the consumption of alcohol

is not an essential element of a VTL § 1192(4-a) charge -- it

would appear that VTL § 1198(2) does not authorize the imposition

of an IID in VTL § 1192(4-a) cases. See also PL § 65.10(2)(k-1)

("The court may require [the IID] condition only where a person

has been convicted of a violation of [VTL § 1192(2), (2-a) or

(3)], or any crime defined by the [VTL] or this chapter of which

an alcohol-related violation of any provision of [VTL § 1192] is

an essential element"). See generally PL § 60.21 (which is only

applicable to VTL §§ 1192(2), (2-a) or (3)).

§ 48:8 Cost, installation and maintenance of IID

The cost of installing and maintaining the ignition

interlock device is the responsibility of the defendant:

[U]nless the court determines such person is

financially unable to afford such cost

whereupon such cost may be imposed pursuant

to a payment plan or waived. In the event of

such waiver, the cost of the device shall be

borne in accordance with regulations issued

under [VTL § 1193(1)(g)] or pursuant to such

other agreement as may be entered into for

provision of the device.

VTL § 1198(5)(a). See also 9 NYCRR § 358.8(a).

In this regard, every qualified IID manufacturer must:

[A]gree to adhere to a maximum fee/charge

schedule with respect to all operator's costs

associated with such devices, offer a payment

plan for any operator determined to be

financially unable to pay the cost of the

ignition interlock device where a payment

plan is so ordered, and provide a device free

of fee/charge to the operator where the cost

is waived by the sentencing court, or

pursuant to such other agreement as may be

entered into for provision of the device.

Any contractual agreement between the

operator and the qualified manufacturer or

its installation/service providers shall

permit an early termination without penalty

to the operator when a certificate of

completion has been issued, where the

sentence has been revoked, and whenever the

operator has been transferred to a

jurisdiction where the manufacturer does not

do business. Nothing shall prevent a

qualified manufacturer from lowering the

fee/charge schedule during the course of an

operator's contract and/or the contractual

agreement with the [DPCA].

9 NYCRR § 358.5(c)(3).

Although the cost of an IID is considered a fine for

purposes of CPL § 420.10(5), it does not replace, but rather is

in addition to, any fines, surcharges or other costs imposed by

law. See VTL § 1198(5)(a).

The installer/service provider of the ignition interlock

device is responsible for the installation, calibration and

maintenance of such device. See VTL § 1198(5)(b).

§ 48:9 IID installer must provide defendant with fee schedule

An ignition interlock device installer must:

[P]rovide to all operators, at the time of

device installation a hardcopy statement of

fees/charges clearly specifying warranty

details, schedule of lease payments where

applicable, any additional costs anticipated

for routine recalibration, service visits,

and shipping where the device includes the

direct exchange method of servicing, and

listing any items available without charge if

any, along with a list of

installation/service providers in their

respective county, a toll-free 24 hour

telephone number to be called from anywhere

in the continental United States to secure

up-to-date information as to all

installation/service providers located

anywhere in the continental United States and

for emergency assistance, and a technical

support number available during specified

business hours to reach a trained staff

person to answer questions and to respond to

mechanical concerns associated with the

ignition interlock device.

9 NYCRR § 358.5(d)(2).

§ 48:10 What if defendant is unable to afford cost of IID?

As is noted in the previous section, the cost of installing

and maintaining the ignition interlock device is the

responsibility of the defendant "unless the court determines such

person is financially unable to afford such cost whereupon such

cost may be imposed pursuant to a payment plan or waived." VTL §

1198(5)(a). See also 9 NYCRR § 358.5(c)(3); 9 NYCRR § 358.8(a).

In this regard, the DPCA has promulgated a form entitled

"Financial Disclosure Report" to be used in determining a

person's ability to afford the cost of an IID. This form (a copy

of which is set forth at Appendix 65) only has to be completed by

people seeking a payment plan or a full waiver of the costs of an

IID.

Where the defendant claims an inability to afford the costs

of an IID, 9 NYCRR § 358.8(b) provides that:

Any operator who claims financial inability

to pay for the device shall submit in advance

of sentencing [3] copies of his or her

financial disclosure report, on a form

prescribed by the [DPCA], to the sentencing

court[,] which shall distribute copies to the

district attorney and defense counsel. The

report shall enumerate factors which may be

considered by the sentencing court with

respect to financial inability of the

operator to pay for the device and shall

include, but not be limited to[,] income from

all sources, assets, and expenses. This

report shall be made available to assist the

court in determining whether or not the

operator is financially able to afford the

cost of the ignition interlock device, and[,]

if not[,] whether to impose a payment plan.

Where it is determined that a payment plan is

not feasible, the court shall determine

whether the fee/charge for the device shall

be waived.

9 NYCRR § 358.4(d)(3) addresses the issue of how IID

manufacturers should divide the costs of providing IIDs to

indigent defendants:

[I]n the event more than one qualified

manufacturer does business within its region,

the county shall establish an equitable

procedure for manufacturers to provide

ignition interlock devices without costs

where an operator has been determined

financially unable to afford the costs and

has received a waiver from the sentencing

court. The equitable procedure should be

based upon proportion of ignition interlock

devices paid to each qualified manufacturer

by operators in the county.

§ 48:11 Notification of IID requirement

Where a Court imposes the IID condition upon a defendant,

the Court must notify DMV of such condition. See VTL §

1198(4)(b). In addition, every County must:

[E]stablish a procedure whereby the probation

department and any other monitor will be

notified no later than [5] business days from

the date an ignition interlock condition is

imposed by the sentencing court, any waiver

of the cost of the device granted by the

sentencing court, and of any intrastate

transfer of probation or interstate transfer

of any case which either has responsibility

to monitor. Such procedure shall also

establish a mechanism for advance

notification as to date of release where

local or state imprisonment is imposed.

9 NYCRR § 358.4(d)(5). See also 9 NYCRR § 358.7(a)(1).

Furthermore, IID installers must "notify the monitor and

county probation department when an ignition interlock device has

been installed on an operator's vehicle(s) within [3] business

days of installation." 9 NYCRR § 358.5(d)(16).

§ 48:12 Defendant must install IID within 10 business days of

sentencing

Every defendant sentenced to the IID requirement must:

[H]ave installed and maintain a functioning

ignition interlock device in any vehicle(s)

he or she owns or operates within [10]

business days of the condition being imposed

by the court or[,] if sentenced to

imprisonment[,] upon release from

imprisonment, whichever is applicable.

9 NYCRR § 358.7(c)(1).

In this regard, IID installers are required to install an

IID within 7 business days of a defendant's request that the

device be installed. See 9 NYCRR § 358.5(d)(1). Notably, where

the defendant's vehicle needs repairs before installation can

take place, the 7-day installation period commences when such

repairs are completed. See 9 NYCRR § 358.5(d)(12).

§ 48:13 Defendant must provide proof of compliance with IID

requirement within 3 business days of installation

Every defendant who has an IID installed must, "within [3]

business days of installation, submit proof of installation to

the court, county probation department, and any other designated

monitor." 9 NYCRR § 358.7(c)(1). See also VTL § 1198(4)(a). If

the defendant fails to provide proof of installation, the Court

may, absent a finding of good cause for the failure which is

placed in the record, revoke, modify or terminate the defendant's

sentence of probation or conditional discharge. See VTL §

1198(4)(a).

An issue had arisen as to how to handle situations in which

the defendant failed to install an IID due to the fact that the

defendant did not own -- and claimed that he or she would not

operate -- a motor vehicle during the duration of the IID

requirement. In this regard, effective November 1, 2013, VTL §

1198(4)(a) defines "good cause" for not installing an IID as

follows:

Good cause may include a finding that the

person is not the owner of a motor vehicle if

such person asserts under oath that such

person is not the owner of any motor vehicle

and that he or she will not operate any motor

vehicle during the period of interlock

restriction except as may be otherwise

authorized pursuant to law. "Owner" shall

have the same meaning as provided in [VTL §

128].

§ 48:14 DMV will note IID condition on defendant's driving

record

Where a Court notifies DMV that it has imposed the IID

condition upon a defendant, DMV must note such condition on the

defendant's driving record. VTL § 1198(4)(b). See also VTL §

1198(3)(f).

§ 48:15 How often does defendant have to blow into IID?

The operator of a vehicle equipped with an ignition

interlock device is not merely required to blow into the device

to start the vehicle. Rather:

[T]he operator after passing the start-up

test allowing the engine to start, [must]

submit to an initial rolling test within a

randomly variable interval ranging from [5]

to [15] minutes. Subsequent rolling tests

shall continue to be required at random

intervals not to exceed [30] minutes for the

duration of the travel. A start-up re-test

shall be required within [5] to [15] minutes

of a failed start-up test. A rolling re-test

shall be required within [1] to [3] minutes

after a failed or missed rolling test.

9 NYCRR § 358.5(c)(2).

§ 48:16 Lockout mode

When an ignition interlock device goes into "lockout mode,"

it causes the operator's vehicle to become inoperable if not

serviced within 5 calendar days. See 9 NYCRR § 358.3(n). "An

ignition interlock device shall enter into a lockout mode upon

the following events: [1] failed start-up retest, [1] missed

start-up re-test, [1] failed rolling re-test or [1] missed

rolling re-test within a service period, or [1] missed service

visit." 9 NYCRR § 358.5(c)(2).

§ 48:17 Circumvention of IID

It is a class A misdemeanor:

(a) for a defendant subject to the ignition

interlock device requirement to request,

solicit or allow any other person to either

(i) blow into an ignition interlock device,

or (ii) start a motor vehicle equipped with

an ignition interlock device, for the purpose

of providing the defendant with an operable

motor vehicle;

(b) for a person to either (i) blow into an

ignition interlock device, or (ii) start a

motor vehicle equipped with an ignition

interlock device, for the purpose of

providing a person sentenced to the ignition

interlock device requirement with an operable

motor vehicle;

operable ignition interlock device; and/or

(d) for a defendant subject to the ignition

interlock device requirement to operate a

motor vehicle without such device.

VTL § 1198(9)(a)-(e).

Every ignition interlock device is required to have a label

affixed to it "warning that any person tampering, circumventing,

or otherwise misusing the device is guilty of a misdemeanor and

may be subject to civil liability." VTL § 1198(10). See also 10

NYCRR § 59.12(f).

§ 48:18 Duty of IID monitor to report defendant to Court and

District Attorney

9 NYCRR § 358.7(d)(1) provides, in pertinent part, that:

Upon learning of the following events:

(i) that the operator has failed to have

installed the ignition interlock device

on his/her own vehicle(s) or vehicle(s)

which he/she operates;

(ii) that the operator has not complied

with service visits requirements;

(iii) a report of alleged tampering with

or circumventing an ignition interlock

device or an attempt thereof;

(iv) a report of a failed start-up re-

test;

(v) a report of a missed start-up re-

test;

(vi) a report of a failed rolling re-

test;

(vii) a report of a missed rolling re-

test; and/or

(viii) a report of a lockout mode;

the applicable monitor shall take appropriate

action consistent with public safety. Where

under probation supervision, the county

probation department shall adhere to Part

352. With respect to any operator sentenced

to conditional discharge, the monitor shall

take action in accordance with the provisions

of its county ignition interlock program

plan.

In this regard:

At a minimum, any monitor shall notify the

appropriate court and district attorney,

within [3] business days, where an operator

has failed to have installed the ignition

interlock device on his/her own vehicle(s) or

vehicle(s) which he/she operates, where the

operator has not complied with a service

visit requirement, any report of alleged

tampering with or circumventing an ignition

interlock device or an attempt thereof, any

report of a lock-out mode, and/or any report

of a failed test or re-test where the BAC is

.05 percent or higher.

Id. (emphasis added).

As part of its report to the Court and District Attorney:

The monitor may recommend modification of the

operator's condition of his or her sentence

or release whichever is applicable as

otherwise authorized by law, including

extension of his/her ignition interlock

period, a requirement that the operator

attend alcohol and substance abuse treatment

and/or drinking driver program, referral to

[DMV] to determine whether [DMV] may suspend

or revoke the operator's license, or

recommend revocation of his/her sentence or

release.

9 NYCRR § 358.7(d)(2).

"Where the operator is under supervision by the division of

parole, the monitor shall coordinate monitoring with the division

of parole and promptly provide the parole agency with reports of

any failed tasks or failed tests." 9 NYCRR § 358.7(d)(3).

§ 48:19 Use of leased, rented or loaned vehicles

Where a defendant is subjected to the ignition interlock

device requirement, such requirement applies to every motor

vehicle operated by the defendant including, but not limited to,

vehicles that are leased, rented or loaned. See VTL §

1198(7)(a). In this regard, a defendant who is sentenced to the

ignition interlock device requirement must "notify any other

person who rents, leases or loans a motor vehicle to him or her

of such driving restriction." VTL § 1198(7)(b).

A violation of VTL § 1198(7)(a) or (b) is a misdemeanor.

See VTL § 1198(7)(c). It is also a misdemeanor for a person to

knowingly rent, lease or lend a motor vehicle to a person known

to be subject to the ignition interlock device requirement unless

such vehicle is equipped with an IID. See VTL § 1198(7)(b), (c).

§ 48:20 Use of employer-owned vehicles

Where a defendant who is sentenced to the ignition interlock

device requirement is required to operate a motor vehicle owned

by the defendant's employer for work-related purposes, the

defendant is allowed to operate such vehicle without an ignition

interlock device under the following conditions:

1. Only in the course and scope of the defendant's

employment;

2. Only if the employer has been notified that the

defendant is subject to the ignition interlock device

requirement;

3. Only if the defendant has provided the Court and the

Probation Department with written proof indicating that

the defendant's employer is aware of the ignition

interlock device requirement and has granted the

defendant permission to operate the employer's vehicle

without an ignition interlock device only for business

purposes; and

4. The defendant has notified the Court and the Probation

Department of his or her intention to so operate the

employer's vehicle.

VTL § 1198(8). See also 15 NYCRR § 140.5(c); 9 NYCRR §

358.7(c)(5).

A motor vehicle owned by a business entity that is wholly or

partly owned or controlled by a defendant subject to the ignition

interlock device requirement does not qualify for the "employer

vehicle exemption." See VTL § 1198(8); 15 NYCRR § 140.5(c); 9

NYCRR § 358.7(c)(5).

§ 48:21 Pre-installation requirements

Prior to installing an IID, an installer must "obtain and

record the following information from every operator":

(i) photo identification;

(ii) the name and policy number of his/her

automobile insurance;

(iii) the vehicle identification number (VIN)

of all motor vehicles owned or routinely

driven by the operator, and a statement

disclosing the names of all other individuals

who operate the motor vehicle(s) owned or

driven by the operator; and

(iv) a notarized affidavit from the

registered owner of the vehicle granting

permission to install the device if the

vehicle is not registered to the operator.

9 NYCRR § 358.5(d)(13). See also 9 NYCRR § 358.7(c)(3).

§ 48:22 Mandatory service visit intervals

Every defendant sentenced to the IID requirement must:

[S]ubmit to service visits within [30]

calendar days of prior installation or

service visits for the collection of data

from the ignition interlock device and/or for

inspection, maintenance, and recalibration

purposes where the device does not

automatically transmit data directly to the

monitor; and submit to an initial service

visit within [30] calendar days of

installation and service visits within [60]

calendar days of prior service visits where

the device either automatically transmits

data directly to the monitor for inspection,

maintenance, or recalibration purposes or the

device head is sent to the qualified

manufacturer every [30] calendar days for

such purposes, including data download.

9 NYCRR § 358.7(c)(2).

§ 48:23 Accessibility of IID providers

A qualified ignition interlock device manufacturer must:

[A]gree to service every county within [its]

region and ensure that there shall be an

installation/service provider within 50 miles

from the operator's residence or location

where the vehicle is parked or garaged,

whichever is closest[,] and ensure repair or

replacement of a defective ignition interlock

device shall be made available within the

same 50 mile radius by a fixed or mobile

installation/service provider, or through a

qualified manufacturer sending a replacement,

within 48 hours of receipt of a complaint, or

within 72 hours where an intervening weekend

or holiday. Mobile servicing may be

permissible provided that the above facility

requirements are met and a specific mobile

servicing unit with regular hours is

indicated.

9 NYCRR § 358.5(c)(4).

§ 48:24 Frequency of reporting by IID providers

A qualified ignition interlock device manufacturer must:

[G]uarantee that an installation/service

provider or the manufacturer shall download

the usage history of every operator's

ignition interlock device within [30]

calendar days between service visits or if

the operator fails to appear for a service

visit(s) as soon thereafter as the device can

be downloaded, and provide the monitor with

such information and in such format as

determined by the [DPCA].

9 NYCRR § 358.5(c)(5).

In addition, the manufacturer must:

Further guarantee that the

installation/service provider shall take

appropriate, reasonable and necessary steps

to confirm any report of failed tasks, failed

tests, circumvention, or tampering and

thereafter notify the appropriate monitor

within [3] business days of knowledge or

receipt of data, indicating:

(i) installation of a device on an

operator's vehicle(s);

(ii) report of a failed start-up re-

test;

(iii) report of a missed start-up re-

test;

(iv) report of a failed rolling re-test;

(v) report of a missed rolling re-test;

(vi) report of the device entering

lockout mode;

(vii) failure of an operator to appear

at a scheduled service visit; or

(viii) report of an alleged

circumvention or tampering with the

ignition interlock devices as prohibited

by [VTL § 1198(9)(a), (c) or (d)], or an

attempt thereof.

Id.

§ 48:25 Defendant entitled to report of his/her IID usage

history

An ignition interlock device manufacturer must:

[P]rovide, no more than monthly to the

operator upon his or her request, the

operator's usage history, including any

report of failed tasks, failed tests,

circumvention, or tampering. An operator may

only make [1] request during any month for

such information. Such request shall be in

writing and provide either an email address

or self-addressed stamped envelope.

9 NYCRR § 358.5(c)(6).

§ 48:26 IID providers must safeguard personal information

A qualified ignition interlock device manufacturer must:

[A]gree to safeguard personal information

with respect to any operator and any reports

and provide access to such records only as

authorized herein, by law, or by court order.

All records maintained by the manufacturer

and any of its installation/service providers

with respect to ignition interlock devices in

New York State shall be retained in

accordance with section 358.9.

9 NYCRR § 358.5(c)(7). See also 9 NYCRR § 358.5(c)(10)(vii).

Any monitor may disseminate relevant case

records, including failed tasks or failed

reports not otherwise sealed or specifically

restricted in terms of access by state or

federal law[,] to appropriate law enforcement

authorities, district attorney, treatment

agencies, licensed or certified treatment

providers, the judiciary, for law enforcement

and/or case management purposes relating to

criminal investigations and/or execution of

warrants, supervision and/or monitoring of

ignition interlock conditions, and treatment

and/or counseling. Personal information in

any financial disclosure report shall only be

accessible to the monitor, court, and

district attorney for purposes related to

determination of financial affordability.

Case record information is not to be used for

noncriminal justice purposes and shall

otherwise only be available pursuant to a

court order. In all such instances, those to

whom access has been granted shall not

secondarily disclose such information without

the express written permission of the monitor

that authorized access.

9 NYCRR § 358.7(e).

§ 48:27 Post-revocation conditional license

When the ignition interlock device program first came into

effect, it had limited applicability. For example, the program

only applied to defendants who were placed on probation for DWI,

and thus it generally only applied to recidivist drunk drivers.

See generally People v. Letterlough, 86 N.Y.2d 259, 268-69, 631

N.Y.S.2d 105, 110 (1995). Such defendants generally were either

ineligible for, and/or were in any event prohibited from

obtaining, a regular conditional license during the mandatory

license revocation period. However, DMV was authorized to grant

such defendants a "post-revocation conditional license" for use

during the remainder of the term of probation. See VTL §

1198(3)(a).

Now that literally everyone who is convicted of an alcohol-

related misdemeanor or felony DWI, or any other crime in either

the VTL or the Penal Law of which an alcohol-related violation of

VTL § 1192 is an essential element, will be required to obtain an

ignition interlock device -- regardless of whether they are on

probation and regardless of whether they are repeat offenders --

the concept of the post-revocation conditional license has become

outdated. In this regard, DMV's position is that, for purposes

of determining eligibility for a conditional license, it will

treat a defendant subject to the IID requirement the same as it

would have treated him/her prior to August 15, 2010. See Chapter

50, infra. In other words, defendants who would be eligible for

a conditional license if they were not subject to the IID

requirement (e.g., most first offenders) will still be eligible

for a conditional license after August 15, 2010, notwithstanding

the language of VTL § 1198(3)(a).

To the extent that a "post-revocation conditional license"

is still a relevant concept, such a license is akin to a regular

conditional license. It allows the defendant to drive:

(1) enroute to and from the holder's place of

employment,

(2) if the holder's employment requires the

operation of a motor vehicle then during the

hours thereof,

(3) enroute to and from a class or course at

an accredited school, college or university

or at a state approved institution of

vocational or technical training,

(4) to and from court ordered probation

activities,

(5) to and from [DMV] for the transaction of

business relating to such license,

(6) for a [3] hour consecutive daytime

period, chosen by [DMV], on a day during

which the participant is not engaged in usual

employment or vocation,

(7) enroute to and from a medical examination

or treatment as part of a necessary medical

treatment for such participant or member of

the participant's household, as evidenced by

a written statement to that effect from a

licensed medical practitioner,

(8) enroute to and from a class or an

activity which is an authorized part of the

alcohol and drug rehabilitation program and

at which participant's attendance is

required, and

(9) enroute to and from a place, including a

school, at which a child or children of the

participant are cared for on a regular basis

and which is necessary for the participant to

maintain such participant's employment or

enrollment at an accredited school, college

or university or at a state approved

institution of vocational or technical

training.

VTL § 1198(3)(b). See also 15 NYCRR § 140.5(b).

A person is ineligible for a post-revocation conditional

license if he or she has either (a) "been found by a court to

have committed a violation of [VTL § 511] during the license

revocation period," VTL § 1198(3)(a), or (b) been "deemed by a

court to have violated any condition of probation set forth by

the court relating to the operation of a motor vehicle or the

consumption of alcohol." Id. See also 15 NYCRR § 140.4(a).

DMV cannot deny an application for a post-revocation

conditional license "based solely upon the number of convictions

for violations of any subdivision of [VTL § 1192] committed by

such person within the [10] years prior to application for such

license." VTL § 1198(3)(a). See also 15 NYCRR § 140.4(b). By

contrast:

A post-revocation conditional license shall

be denied to any person if a review of such

person's driving record, or additional

information secured by [DMV], indicates that

any of the following conditions apply:

(1) The person has been convicted of

homicide, assault, criminal negligence or

criminally negligent homicide arising out of

the operation of a motor vehicle.

(2) The conviction upon which eligibility is

based involved a fatal accident.

(3) The person has been convicted more than

once of reckless driving within the last [3]

years.

(4) The person has had a series of

convictions, incidents and/or accidents or

has a medical or mental condition, which in

the judgment of [DMV] tends to establish that

the person would be an unusual and immediate

risk upon the highway.

(5) The person has been penalized under

section [VTL § 1193(1)(d)(1)] for any

violation of [VTL § 1192(2), (2-a), (3), (4)

or (4-a)].

(6) The person has had a post-revocation

conditional license within the last [5]

years.

(7) The person has other open suspension or

revocation orders on their record, other than

for a violation of [VTL § 1192(1), (2), (2-

a), (3), (4) or (4-a)].

(8) The person has [2] convictions of a

violation of [VTL § 1192(3), (4) or (4-a)]

where physical injury has resulted in both

instances.

(9) The person has been convicted of an

offense arising from the same event which

resulted in the current alcohol-related

conviction, which conviction, aside from the

alcohol-related conviction, resulted in the

mandatory revocation of the person's license

for leaving the scene of an accident

involving personal injury or death.

(10) The person has had [2] or more

revocations and/or suspensions of his

driver's license, other than the revocation

or suspension upon which his eligibility for

the rehabilitation program is based[,] within

the last [3] years. This subdivision shall

not apply to suspensions which have been

terminated by performance of an act by the

person, nor to a suspension or revocation

resulting from a chemical test refusal, if

the person had been convicted of a violation

of [VTL § 1192] arising out of the same

incident.

(11) The person was the holder of a limited

DJ or limited MJ license at the time of the

violation which resulted in the revocation.

15 NYCRR § 140.4(c).

A post-revocation conditional license may be revoked by DMV

for "sufficient cause," including, but not limited to, "failure

to comply with the terms of the condition[s] of probation or

conditional discharge set forth by the court, conviction of any

traffic offense other than one involving parking, stopping or

standing[,] or conviction of any alcohol or drug related offense,

misdemeanor or felony[,] or failure to install or maintain a

court ordered ignition interlock device." VTL § 1198(3)(c). See

also 15 NYCRR § 140.5(d).

"Upon the termination of the period of probation or

conditional discharge set by the court, the person may apply to

[DMV] for restoration of a license or privilege to operate a

motor vehicle in accordance with this chapter." VTL §

1198(3)(a). In this regard, 15 NYCRR § 136.10 provides that:

Upon the termination of the period of

probation set by the court, the holder of a

post-revocation conditional license may apply

to the commissioner for restoration of a

license or privilege to operate a motor

vehicle. An application for licensure shall

be approved if the applicant demonstrates

that he or she:

(a) has a valid post-revocation conditional

license; and

(b) has demonstrated evidence of

rehabilitation as required by this Part.

§ 48:28 Intrastate transfer of probation/conditional discharge

involving IID requirement

9 NYCRR § 358.7(b) addresses the situation where a defendant

subject to the ignition interlock device requirement either (a)

resides in another County at the time of sentencing, or (b)

desires to move to another County subsequent to sentencing.

Where the defendant is on probation:

Where the operator is under probation

supervision and resides in another county at

the time of sentencing or subsequently

desires to reside in another county, upon

intrastate transfer of probation, the

receiving county probation department selects

the specific class and features of the

ignition interlock device available from a

qualified manufacturer in its region.

Thereafter, the operator may select the model

of the ignition interlock device meeting the

specific class and features selected by the

receiving county probation department from a

qualified manufacturer in the operator's

region of residence. Where intrastate

transfer occurs after sentencing and the

installation of a different device is

required as a result of the transfer, the

device shall be installed within [10]

business days of relocation. All intrastate

transfer of probation shall be in accordance

with Part 349.

9 NYCRR § 358.7(b)(1).

Where the defendant is subject to a conditional discharge:

Where an operator has received a sentence of

conditional discharge and resides in another

county at the time of sentencing or

thereafter, the receiving county monitor

shall select the class of ignition interlock

device available from a qualified

manufacturer in its region for any such

operator. The operator may select the model

of the ignition interlock device from within

the class designated by the monitor from a

qualified manufacturer in the operator's

region of residence. The receiving county

monitor shall perform monitor services and

the sentencing court retains jurisdiction of

the operator. Upon knowledge, the monitor of

the sentencing county shall provide necessary

operator information in advance to the

receiving county monitor. The receiving

county monitor shall notify the sentencing

court and county district attorney pursuant

to paragraph (d) of this section.

9 NYCRR § 358.7(b)(2).

§ 48:29 Interstate transfer of probation/conditional discharge

involving IID requirement

9 NYCRR § 358.7(b)(3) and (4) address the situation where a

defendant subject to the ignition interlock device requirement

either (a) resides in another State at the time of sentencing, or

(b) desires to move to another State subsequent to sentencing.

In such a situation:

(3) Where an operator, subject to probation

supervision or a sentence of conditional

discharge, resides or desires to reside out-

of-state and is an offender subject to the

interstate compact for adult offender

supervision pursuant to [Executive Law 259-

mm], the governing rules of such compact

shall control. Additionally, Part 349 shall

apply with respect to transfer of supervision

of probationers. Where transfer is

permitted, the receiving state retains its

authority to accept or deny the transfer in

accordance with compact rules. Where an

operator is subject to probation supervision

and is granted reporting instructions and/or

acceptance by a receiving state, the sending

probation department selects the specific

class and features of the ignition interlock

device available from a qualified

manufacturer in the receiving state.

Thereafter, the operator may select the model

of the ignition interlock device meeting the

specific class and features selected by the

sending county probation department from a

qualified manufacturer in the receiving state

region. The device shall be installed prior

to relocation or return where feasible. A

qualified manufacturer shall make necessary

arrangements to ensure the county monitor in

New York State and the receiving state

receive timely reports from the manufacturer

and/or installation/service provider; and

(4) Where an operator resides or desires to

reside out-of-state, is not subject to the

interstate compact for adult offender

supervision and such compact's governing

rules, and has been given permission to

return or relocate by the sentencing court or

monitor, the same provisions with respect to

selection specified in paragraph [3] of this

subdivision applies and the device shall be

installed prior to relocation or return. A

qualified manufacturer shall make necessary

arrangements to ensure the county monitor

receives timely reports from the manufacturer

and/or installation/service provider.

Pursuant to the compact, an operator

convicted of his or her first DWI misdemeanor

is not subject to the compact.

(Emphasis added).

§ 48:30 VTL § 1198 does not preclude Court from imposing any

other permissible conditions of probation

PL § 60.36 provides that:

Where a court is imposing a sentence for a

violation of [VTL § 1192(2), (2-a) or (3)]

pursuant to [PL §§ 65.00 or 65.05] and, as a

condition of such sentence, orders the

installation and maintenance of an ignition

interlock device, the court may impose any

other penalty authorized pursuant to [VTL §

1193].

See also VTL § 1198(3)(e) ("Nothing contained herein shall

prevent the court from applying any other conditions of probation

or conditional discharge allowed by law, including treatment for

alcohol or drug abuse, restitution and community service").

§ 48:31 Imposition of IID requirement does not alter length of

underlying license revocation

"Imposition of an ignition interlock condition shall in no

way limit the effect of any period of license suspension or

revocation set forth by the commissioner or the court." VTL §

1198(3)(d).

§ 48:32 IID requirement runs consecutively to jail sentence

PL § 60.21 provides that whenever a person is sentenced to

imprisonment for a conviction of VTL § 1192(2), (2-a) or (3), the

Court is also required to both (a) sentence the person to either

probation or a conditional discharge, and (b) order the person to

install an ignition interlock device. Such period of probation

or conditional discharge is required to run consecutively to any

period of imprisonment, and to commence immediately upon the

person's release from imprisonment. Specifically, PL § 60.21

provides that:

Notwithstanding [PL § 60.01(2)(d)], when a

person is to be sentenced upon a conviction

for a violation of [VTL § 1192(2), (2-a) or

(3)], the court may sentence such person to a

period of imprisonment authorized by [PL

Article 70] and shall sentence such person to

a period of probation or conditional

discharge in accordance with the provisions

of [PL § 65.00] and shall order the

installation and maintenance of a functioning

ignition interlock device. Such period of

probation or conditional discharge shall run

consecutively to any period of imprisonment

and shall commence immediately upon such

person's release from imprisonment.

It seems clear that this statute, which was enacted as part

of a series of statutes and statutory amendments collectively

known as "Leandra's Law," see Chapter 496 of the Laws of 2009,

was intended to be read in conjunction with the ignition

interlock device requirement. In other words, it appears clear

that the intent of PL § 60.21 is to preclude a person from

receiving credit for "time served" on the IID portion of his or

her sentence while the person is incarcerated. See generally

People v. Panek, 104 A.D.3d 1201, 960 N.Y.S.2d 801 (4th Dep't

2013).

This raises the question: If a person has been sentenced to

a longer period of incarceration than would otherwise permit a

term of probation (or conditional discharge), see PL §

60.01(2)(d), what is the potential consequence of violating a

condition of such probation (or conditional discharge)?

In People v. Brown, 40 Misc. 3d 821, ___, 970 N.Y.S.2d 391,

393 (Erie Co. Sup. Ct. 2013), the Court recognized the inherent

conflict between PL § 60.21 and PL § 60.01(2)(d), and held that:

After review of PL §§ 60.01, 60.21, 65.00,

70.00 and V & T Law §§ 1193, 1198, it is

apparent that the legislature has not

established a term of imprisonment as a

penalty for a violation of probation pursuant

to V & T Law § 1193-1(c)(iii) and PL § 60.21.

The only penalty set forth for failure to

install an ignition interlock device as a

condition of probation is a new charge

pursuant to V & T Law § 1198-9, a class "A"

Misdemeanor.

As the court has no authority to impose a

term of imprisonment for this violation of

probation the question of Double Jeopardy is

moot.

This leaves the question of what sanction the

court may impose for a violation of probation

in this situation. Since the court cannot

impose a term of imprisonment, the choice of

remedies is either continued probation or a

fine pursuant to PL § 60.01-3(b) or (e).

In People v. Brainard, 111 A.D.3d 1162, ___, 975 N.Y.S.2d

498, 500 (3d Dep't 2013), the Appellate Division, Third

Department, citing Brown, held that:

County Court has authority to enforce the

condition of defendant's conditional

discharge. The condition is that defendant

install and maintain an ignition interlock

device (see Penal Law § 65.10[2][k–1]). If

the court has reasonable cause to believe

that he has violated that condition, the

court may file a declaration of delinquency,

order defendant to appear and hold a hearing

(see CPL 410.30, 410.40, 410.70). If the

court finds defendant delinquent, it may

revoke his conditional discharge and impose

another sentence, such as a term of probation

or a fine. Thus, the court does have the

authority to enforce the terms of the

conditional discharge.

(Citations omitted). "Additionally, operation of a vehicle

without a court-ordered ignition interlock device is a class A

misdemeanor (see [VTL] § 1198[9][d], [e]), which would subject

defendant to further punishment upon conviction." Id. at ___,

975 N.Y.S.2d at 500. The Court also held that PL § 60.21 does

not violate Double Jeopardy. Id. at ___, 975 N.Y.S.2d at 499-

500.

In People v. Flagg, 107 A.D.3d 1613, 967 N.Y.S.2d 577 (4th

Dep't 2013), the defendant pled guilty to Vehicular Manslaughter

2nd, in violation of PL § 125.12(1), and common law DWI, in

violation of VTL § 1192(3). The defendant was resentenced to "a

term of probation with respect to each count requiring defendant

to equip with an ignition interlock device (IID) any vehicle

owned or operated by him." Id. at ___, 967 N.Y.S.2d at 578. On

appeal, the Appellate Division, Fourth Department, held as

follows:

As the People correctly concede . . ., the

resentence is illegal insofar as County Court

directed that defendant serve a term of five

years of probation following the

indeterminate term of imprisonment of 2 to 6

years on the conviction of vehicular

manslaughter in the second degree (see Penal

Law § 60.01[2][d]). Contrary to defendant's

contention that the term of imprisonment

therefore must be reduced, however, we agree

with the People that the proper remedy is to

vacate the term of probation imposed on the

vehicular manslaughter count. We therefore

modify the resentence accordingly. Section

60.21 requires a court to sentence a

defendant convicted of a violation of Vehicle

and Traffic Law § 1192(2), (2-a), or (3) to a

period of probation or conditional discharge

and to order the installation and maintenance

of a functioning IID. Section 60.21 does not

apply, however, to vehicular manslaughter in

the second degree.

Id. at ___, 967 N.Y.S.2d at 578.

In People v. Dexter, 104 A.D.3d 1184, 960 N.Y.S.2d 773 (4th

Dep't 2013), the defendant, who pled guilty to DWI as a class E

felony, was sentenced to 1 to 3 years in prison by a 1-year

period of conditional discharge with an IID requirement. The

Appellate Division, Fourth Department, held that the 1-year

conditional discharge was illegal -- not because PL § 60.21 is

illegal -- but rather because PL § 65.05(3)(a) mandates that the

period of conditional discharge "shall be" 3 years for felony

offenses, and "'[n]either County Court nor this Court possesses

interest of justice jurisdiction to impose a sentence less than

the mandatory statutory minimum.'" Id. at ___, 960 N.Y.S.2d at

774 (citation omitted). See also People v. Barkley, 113 A.D.3d

1002, 978 N.Y.S.2d 920 (3d Dep't 2014); People v. O'Brien, 111

A.D.3d 1028, 975 N.Y.S.2d 219 (3d Dep't 2013); People v. Marvin,

108 A.D.3d 1109, 967 N.Y.S.2d 897 (4th Dep't 2013).

In People v. Bush, 103 A.D.3d 1248, ___, 959 N.Y.S.2d 361,

362 (4th Dep't 2013), the Appellate Division, Fourth Department,

held that "the portion of [defendant's] sentence imposing a

three-year conditional discharge and an ignition interlock device

requirement is illegal inasmuch as he committed the offense prior

to the effective date of the statute imposing those

requirements."

§ 48:33 Applicability of IID requirement to parolees

Executive Law § 259-c(15-a) requires that everyone who is

released from State Prison on parole or conditional release after

serving a sentence for felony DWI or Vehicular Assault/Vehicular

Manslaughter must install an ignition interlock device in any

vehicle that they own or operate during the term of such parole

or conditional release. Specifically, Executive Law § 259-c(15-

a) provides that:

Notwithstanding any other provision of law,

where a person is serving a sentence for a

violation of section 120.03, 120.04, 120.04-

a, 125.12, 125.13 or 125.14 of the penal law,

or a felony as defined in [VTL § 1193(1)(c)],

if such person is released on parole or

conditional release the board shall require

as a mandatory condition of such release,

that such person install and maintain, in

accordance with the provisions of [VTL §

1198], an ignition interlock device in any

motor vehicle owned or operated by such

person during the term of such parole or

conditional release for such crime. Provided

further, however, the board may not otherwise

authorize the operation of a motor vehicle by

any person whose license or privilege to

operate a motor vehicle has been revoked

pursuant to the provisions of the vehicle and

traffic law.

§ 48:34 IID cannot be removed without "certificate of

completion" or "letter of de-installation"

An IID installer can "remove an ignition interlock device

and return the vehicle to normal operating condition only after

having received a certificate of completion or a letter of de-

installation from the monitor as authorized pursuant to section

358.7 of this Part." 9 NYCRR § 358.5(d)(4). In this regard, 9

NYCRR § 358.7(a)(2) provides that "[w]here a monitor learns that

the operator no longer owns or operates a motor vehicle in which

an ignition interlock device has been installed, the monitor may

issue a letter of de-installation directly to the

installation/service provider which authorizes removal of the

device."

§ 48:35 Constitutionality of VTL § 1198

Courts have reached differing conclusions with regard to

whether VTL § 1198 is Constitutional. Compare People v. Pedrick,

32 Misc. 3d 703, 926 N.Y.S.2d 269 (Rochester City Ct. 2011)

(statute is Constitutional), with People v. Walters, 30 Misc. 3d

737, 913 N.Y.S.2d 893 (Watertown City Ct. 2010) (certain aspects

of statute are unconstitutional).

§ 48:36 Necessity of a Frye hearing

In People v. Bohrer, 37 Misc. 3d 370, 952 N.Y.S.2d 375

(Penfield Just. Ct. 2012), the Court held that evidence of a

failed IID test is admissible, without first conducting a Frye

hearing, at a violation of conditional discharge hearing held

pursuant to CPL § 410.70.

MISTAKE OF LAW STOPS

In People v. Guthrie, 25 N.Y.3d 130, 8 N.Y.S.3d 237 (2015)

(a copy of which is attached as Appendix 68), the New York State

Court of Appeals upheld the validity of the stop where the stop

grew out of an objectively reasonable mistake of law.

Here, the arresting officer observed the defendant driving

through a stop sign at the edge of a supermarket parking lot.

The officer pulled the car over and subsequently arrested the

defendant for Driving While Intoxicated based upon the

observations arising from the stop of the vehicle.

As it turned out, the stop sign was not properly registered

pursuant to the village code as required by VTL § 1100(b). This

section requires registration of traffic control devices on

parking lots in order for violation of those devices to be

enforceable.

The Newark Village Court granted the defendant's motion to

suppress and dismiss the accusatory instrument based upon the

invalid stop. Affirmed by the Wayne County Court, the case made

its way to the Court of Appeals. In reversing the lower courts,

the Court of Appeals cited the recent United States Supreme Court

case of Heien v. North Carolina, 135 S.Ct. 530 (2014)(a copy of

which is attached as Appendix 69) . Here, the Court upheld the

stop of a vehicle which had only one working brake light. As it

turned out, the statute only required one working brake light.

Because the statute was somewhat confusing and convoluted, the

Court held that the officer's actions were objectively reasonable

under the circumstances and did not, therefore, violate the

Fourth Amendment.

It is important to point out that insofar as New York State

is concerned, the good faith of the officer is not relevant to

the issue. Rather, it is the objective reasonability of the

mistake of law that the Court must determine. While, it is

objectively reasonable that officers could be required to know

that stop signs in parking lots must be registered with the

village in accordance with the mandate of the Vehicle and Traffic

Law, it was not objectively reasonable that the officer be

required to know that the specific stop sign that the defendant

drove through was, in fact, registered.

VEHICLE STOP DETENTION

In Rodriguez v. United States, 135 S.Ct. 1609 (2015) (a copy

of which is attached as Appendix 70), a K-9 officer stopped the

defendant for driving on a highway shoulder which was a violation

of Nebraska law. After completing all of the procedures

associated with the traffic infraction, the officer requested

that the defendant give him permission to walk his dog around the

vehicle. Upon the defendant's refusal, the officer detained the

defendant until a second officer arrived. This took about seven

to eight minutes. At this point, the officer retrieved his dog

which then alerted to the presence of drugs in the vehicle. A

search revealed methamphetamine.

Upon appeal of the defendant's conviction, the United States

Supreme Court reversed holding that absent reasonable suspicion,

the police extension of a traffic stop in order to conduct a dog

sniff violated the constitution's shield against unreasonable

seizures.

The issue here is not whether a seven to eight minute

detention is reasonable, rather it is conversion of a lawful stop

to an unconstitutional seizure. While there was a basis for the

stop and a delay associated with enforcement administration,

continued retention of the defendant became an unlawful seizure

in the absence of any reasonable suspicion beyond that associated

with the traffic infraction. The fact that the seven to eight

minute delay was de minimis is not relevant in the face of the

fact that the seizure had no valid basis and was constitutionally

prohibited.

In New York, the New York State Court of Appeals decided

People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986 (1995) (a copy

of which is attached as Appendix 71), and held, akin, to the

United States Supreme Court, a seizure that extended beyond the

time requisite for the enforcement of a traffic violation was

constitutionally invalid. Evidence obtained as the result of a

consent search obtained during this illegal detention required

suppression.