If you are charged with DUI/DWI, and you have taken a chemical test revealing a blood alcohol content of .08%, the Court must suspend your license at your first appearance when you are arraigned under New York's "Prompt Suspension" Law found in Vehicle and Traffic Law 1192(2)(e); but only if certain due process requirements are met pursuant to the Court of Appeals decision in Pringle V. Wolfe. If you are alleged to have refused a chemical test, your license will be suspended at arraignment so long as the Court is in possession of a "Report of Refusal" completed by the arresting Officer; you will then be scheduled for a "Refusal Hearing" held by the Department of Motor Vehicles (DMV) within 15 days of your arraignment.
With respect to suspension based on a chemical test of over .08%, in the case of Pringle v. Wolfe, the Court held that for a DUI/DWI license suspension to be Constitutional there must exists reasonable cause to believe that the defendant:
(1) was actually operating the motor vehicle with a BAC of .08 or more as shown by a chemical test of blood, breath, urine or saliva, and;
(2) that the charging instrument is sufficient on its face.
Under Pringle, the Court may not suspend a license pending prosecution unless they are in possession of a certified chemical test result. A defendant may also request a “Pringle Hearing” to rebut the Court's findings. Further, under Criminal Procedure Law 100.25, if a defendant is charged by a simplified information (a traffic ticket without any factual allegations) the defendant is entitled , upon request and within 30 days of that request, to a Supporting Deposition containing factual allegations establishing reasonable cause to believe that he committed the charged offense - if no Supporting Deposition is served within the 3o days of the request, the charge is considered defective and subject to dismissal. If this is the case, an argument can be made that the Court may not suspend a license at arraignment when a Supporting Deposition is requested, but not yet received, because the charging instrument is insufficient until an adequate Deposition is served..
New York also has a mandatory implied consent provision; that is, any New York State licensed driver placed under arrest for DUI/DWI must consents to a chemical test (breath test) if probable cause exists to believe that they are operating a motor vehicle under the influence of alcohol or drugs. Those who refuse a chemical test in New York will have their driver’s license suspended at arraignment and the license may be revoked for at least one year at a DMV hearing. A refusal of a breathalyzer test in New York results in a license revocation; if the DUI/DWI charge is later dismissed, your license will remain revoked as a separate civil penalty for the refusal.
An individual arrested in New York must be given a hearing within fifteen days of arraignment to challenge a suspension based on a chemical test refusal. At this hearing, the DMV Administrative Judge will address (1) whether probable cause existed for the DWI charge (and whether probable cause existed for the stop of your vehicle, (2) whether the police lawfully arrested the driver, whether the driver was informed of the consequences of the failure or refusal of a chemical test “in clear unequivocal language,” and whether the driver in fact refused to take the chemical test. If the DMV Judge makes these findings, you will be assessed civil fine of between $200 and $500 and an additional DMV assessment fee of $250 per year for 3 years.
I have successfully challenged both the Prompt Suspension Law based on the chemical test and at the DMV hearing for refusals. The laws are complex and it is important to critically review the paperwork for procedural or factual discrepancies which may result in keeping your license. If you have any questions, please call me 24/7 at 716-316-3160 and I will be happy to discuss your case with you.
-Jeffrey V. Scherer
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