Opinion
No. 2008-951.
Decided August 25, 2008.
Jacobs Jacobs, Michael A. Jacobs, Esq. and Patrick Cannon, Esq. of counsel, Attorneys for Petitioner, Stamford, NY.
Richard D. Northrup, Jr., District Attorney, John Hubbard, Assistant District Attorney, of counsel, Delhi, NY.
George Marcus, Esq., Attorney for Hon. Ronald L. Brovetto, Stamford, NY.
This is an Article 78 proceeding to review the procedures followed in a prompt suspension hearing pursuant to Vehicle Traffic Law § 1193(2)(e)(7). At the outset it is clear that such proceeding to suspend a driver's license is a civil administrative proceeding, and not a criminal trial. Schmitt v Skovira 53AD3d 918 (3d Dept. 2008); Matter of Banner v Tofary 27 NY2d 74 (1970). The constitutionality of the prompt suspension procedure has been upheld by the Court of Appeals in Pringle v Wolfe 88 NY2d 426 (1996).
In Schmitt the prompt suspension hearing had not yet occurred and thus the Third Department held the evidentiary issues were "not ripe for review." In the present case the hearing has taken place and so the issues raised by petitioner relating to probable cause for arrest and the accuracy of the test instrument must now be decided.
In Pringle the Court of Appeals said ". . . the Judge must suspend the driver's license of a person charged with driving while intoxicated upon determining that the accusatory instrument is sufficient on its face and finding reasonable cause to believe that the driver operated a motor vehicle with a blood alcohol level in excess of .10 of 1% as evidenced by the results of a chemical test." Pringle v Wolfe, supra at 429. Now the level has been reduced to .08 of 1%. VTL § 1193(2)(e)(7). In the present case the trial judge made such required findings (Tr. p. 5).
VTL § 1193(2)(e)(7)(b) next provides that "at the time of such license suspension 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." The Court of Appeals in Pringle made it clear that the prompt suspension hearing contemplated by the legislature is not a full scale "plenary hearing" that "would effectively convert the license suspension into a trial on the merits of the underlying criminal charge." Pringle v Wolfe, supra at 435. As stated by another court "anything more than allowing a summary hearing would be burdensome to police, prosecutors and defendant." People v Giacopelli 171Misc.2d 844 (Clarkstown Justice Court 1997); People v Alvarez 172 Misc 2d 440 (Criminal Court, Bronx Co. 1996).
Once the trial court has made the required two findings, the burden of proof is on the defendant to present evidence to rebut those findings. People v Green 176 Misc 2d 354 (City Court Poughkeepsie-1998). Since prompt suspension is a civil matter the requirement would be a preponderance of the evidence.
In the present case the petitioner alleges four arguments why the trial court decision should be overturned: 1) The District Attorney should not be allowed to participate in the prompt suspension hearing, 2) the petitioner was precluded from presenting evidence as to the accuracy and operation of the breathalyzer, 3) the petitioner was precluded from presenting evidence that there was no probable cause for arrest, and 4) petitioner was denied discovery of the source code for the breathalyzer used in this case, a Draeger Alcotest 7110 MK-III-C.
The Third Department has just held in a similar case the District Attorney is permitted to participate in a prompt suspension hearing. Schmitt v Skovira, supra. Thus petitioner's argument on this point is unavailing.
It was held in People v Alvarez supra that the trial court may consider not only the allegations in the accusatory instrument but also the facts contained in the supporting depositions and testimony and inferences to be drawn therefrom. In this case the court heard the testimony of the arresting officer. He testified that he personally observed defendant's car run off the road at 1:35 AM and that he administered an ABC field sobriety test. Since petitioner was arrested the inference is she failed the test. Thus petitioner's attorney was permitted to inquire into probable cause for arrest. The trial judge had before him sufficient non-hearsay evidence to establish that the accusatory instrument was valid on its face. Pringle v Wolfe supra; People v Alvarez, supra; Criminal procedure Law § 100.40. Petitioner has not met her burden of proof on this issue.
The trial judge also had the results of the breathalyzer test. (Tr. pp. 5 and 25). The Trooper who administered the test was present and testified at the hearing about the method of conducting the test and the operation of the machine. The breathalyzer used is on the list of approved breathalyzers issued by the Department of Health pursuant to the authority granted in VTL § 1194(4)(c); 10NYCRR § 59.4 (b). The courts have held that "the legislative intent was to give DOH definitive authority to approve tests for determining blood alcohol content for Vehicle Traffic Law enforcement purposes." People v Hampe 181 AD2d 238 (3d Dept. 1992); People v Robinson 53 AD3d 63 (2d Dept. 2008). Thus the trial court had before it both a chemical test result from an approved machine as well as the testimony of the Trooper who administered the test. There is nothing in the record to refute the accuracy of the test results. Due to the summary nature of the prompt suspension hearing a challenge that the machine was not in good working order, for whatever reason, is not appropriate. Rather such challenges should be reserved for the criminal trial where they are clearly permitted. People v Alvarez 70 NY2d 375(1987); People v Merrick 188 AD2d 764 (3d Dept. 1992). "The summary and automatic character of the suspension sanction available under the statute is critical to attainment of its objectives." Pringle v Wolfe, supra at 435. As pointed out in Pringle due process is preserved by the temporary duration of the suspension due to speedy trial limits, and the availability of a conditional license and hardship relief. CPL § 30.30; VTL § 1193(2)(e)(7)(d) and (e).
Again the preponderance of the evidence supports the trial judge's determination that there were chemical test results establishing petitioner was operating her vehicle with blood alcohol over .08 of 1%. Petitioner has not met her burden of proof on this issue either.
Petitioner next alleges she was denied discovery of the source code for the Drager A1cotest 7110 MKIII-C machine used in this case. She submits an expert opinion that examination of the source code might show the breathalyzer was inaccurate and cites a New Jersey case, People v Chun 923 A2d 226 (2007), in support of this point. First it should be noted that in a subsequent decision in Chun the New Jersey Supreme court upheld the continued use of the machine with certain additional safeguards. People v Chun 943 A.2d 114 (2008). Second, since the prompt suspension hearing is a summary proceeding it was not the intent of the legislature to permit all the disclosure and discovery that would be allowed for a plenary hearing or a criminal trial. Pringle v Wolfe, supra. For the reasons discussed above this is not a denial of due process because of speedy trial limits and the availability of a conditional or hardship license. Discovery of the source code might be permitted for the criminal trial, but not in this summary civil proceeding. Cf. People v Robinson, supra.
The petition is denied in its entirety.
This decision constitutes the order of the court.