Opinion
No. CR-009610-22BX
07-07-2022
The People of The State of New York, v. Kelby Zacatelco, Defendant.
For the People: Marc Russell, Esq., Assistant District Attorney Bronx County District Attorney's Office For the Defendant: Sean Sykes, Esq. Legal Aid Society
For the People: Marc Russell, Esq., Assistant District Attorney Bronx County District Attorney's Office
For the Defendant: Sean Sykes, Esq. Legal Aid Society
HON. CHRISTOPHER CHIN, J.C.C.
On June 2, 2022, following a vehicle collision, defendant Kelby Zacateleco was arrested and charged with driving while intoxicated (Vehicle and Traffic Law [VTL] § 1192 [3]), and while ability impaired (VTL § 1192 [1]). At the time of his arrest, defendant was observed to have a strong odor of an alcoholic beverage, red eyes, slurred speech and to be unsteady on his feet. Defendant refused to submit to a chemical test of his breath for alcohol and a written "report of refusal" was completed by the arresting officer, in accordance with VTL §1194 (2)(b). On the same day, defendant was arraigned and released on his own recognizance.
Pursuant to VTL § 1194 (2)(b)(1), when a person who has been arrested for a VTL § 1192 offense refuses to take a chemical test, the officer before whom such refusal was made shall immediately make a written "report of the refusal." Pursuant to VTL § 1194 (2)(b)(2), the report shall include reasonable grounds to believe that the arrested person has committed a VTL § 1192 offense, that he refused to submit to a chemical test, and that as a result, no chemical test was administered.
It is not disputed that at arraignment, the People failed to present the refusal report to the court and defendant's license was not suspended, as required (see VTL § 1194 (2)(b)(1) and (3). The matter was adjourned to August 1, 2022, in AP-3.
On June 10, 2022, the assigned ADA contacted the court and requested that the case be advanced to have defendant's license suspended. The case was calendared for June 24, 2022.
The People argued that their failure to present the refusal paperwork and request a license suspension at arraignment did not preclude suspension of defendant's license at a subsequent date. In support, the People relied upon Matter of Mullen v New York State Department of Motor Vehicles (144 A.D.2d 886 [3rd Dept 1988]).
Defendant objected to the People's request for a license suspension, made after arraignment as untimely; no case law was supplied in support of this position.
The matter was adjourned to July 11, 2022, for the court's decision.
DISCUSSION
Every driver of a motor vehicle in New York is deemed to have given consent to a test of their blood for alcohol, drugs or both. This "implied consent law" is a powerful tool in the government's arsenal against drunk driving as it allows police to collect direct evidence of intoxication or impairment. As a condition to being allowed to drive on the roadways of New York, a driver has agreed to give a sample (typically of one's breath) to be used against the driver in a criminal prosecution.
(Larry Cunningham, Practice Commentaries [McKinney's Cons Laws of NY, Book 62A, VTL 1194]; see VTL § 1194 [2]).
Here, it is undisputed that at the time of defendant's arrest he refused to submit to a chemical test of his breath and a refusal report was prepared.
The issue before this court is whether the People's failure to present the refusal paperwork and request the suspension of defendant's license at arraignment precludes the court from suspending defendant's license at a later date. After oral argument, and upon review of the relevant law, the court finds it does not (see VTL § 1194 (2)(b); Matter of Mullen v New York State Dept. of Motor Vehs., 144 A.D.2d 886, 888 [3d Dept 1988]).
It is noted that the issue of the sufficiency of the refusal paperwork is not before the court.
VTL § 1194 (2)(b)(1) provides that if, after being placed under arrest and informed of the consequences of refusal, a defendant refuses to submit to a chemical breath test, his driver's license "shall be immediately suspended and subsequently revoked," regardless of whether the arrest results in a criminal conviction.
A driver's license must be revoked if, after a hearing pursuant to VTL § 1194 (2)(c) ("refusal hearing"), it is found that there was: (1) a lawful arrest; (2) evidence of intoxication; and (3) refusal to submit to a chemical test despite explicit warnings of the consequences of refusal (see VTL § 1194 [2][c]).
VTL § 1194 (2)(b)(3) further provides that "[f]or persons placed under arrest for a violation of any subdivisions of [VTL 1192], the license to drive shall, upon the basis of [a] written report [of refusal], be temporarily suspended by the court without notice pending the determination of a hearing as provided in [VTL 1194 (2)(c)]" (emphasis supplied).
Thus, VTL § 1194(2)(b) is clear that a court is mandated to impose a temporary suspension of a defendant's driving privileges pending the outcome of a refusal hearing before the Department of Motor Vehicles ("DMV"), where, after being placed under arrest and informed of the consequences of refusal, he refuses to submit to a chemical breath test (see VTL § 1194 [2][b][1] and [3]).
While VTL § 1194 (2)(b)(2) states, inter alia, that the refusal "report shall be presented to the court upon arraignment," nothing in VTL § 1194 specifically prohibits a court from suspending the license of a defendant who refuses to submit to a chemical test for the purpose of determining the alcohol content of his blood, at a subsequent adjourned date; nor does the statute expressly require that the suspension occur within a specific time period.
Unlike VTL § 1193 (2)(e)(7)(b) - applicable where excessive blood alcohol content is shown by chemical analysis - which states that the suspension is to occur "no later than at the conclusion of all proceedings required for the arraignment" and requires that the suspension "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 § 1194 has no similar provision expressly limiting the time to impose a suspension.
This court agrees with the Appellate Division in Matter of Mullen v New York State Dept of Motor Vehicles (144 A.D.2d at 888 [3d Dept 1988]) that "the time schedules specified in [VTL] § 1194 (2) are directory only" and therefore, do not preclude a court from ordering a license suspension subsequent to arraignment.
In Matter of Mullen, like here, the driver's license was not suspended at arraignment, despite the driver's refusal to submit to a chemical test and the preparation by the arresting officer of a refusal report (144 A.D.2d at 887). Only after a probable cause/ Huntley hearing, held many months later, did the justice court advised the defendant for the first time that a refusal report had been filed and would be forwarded to DMV (id.). The Mullen court rejected the driver's argument that the delay in scheduling the refusal hearing to revoke her license deprived DMV of jurisdiction and allowed the hearing to go forward, over one (1) year after the driver's arrest (id. at 887-88).
Additionally, defendant failed to demonstrate any prejudice suffered as a result of the People's eight (8) day delay in seeking to suspend his driving privileges, since he retained his right to drive during that time period (see Matter of Pitta v Commr. of Motor Vehs. of State of NY, 121 A.D.2d 545, 545 [2d Dept 1986] [passage of time does not represent prejudice where a driver retained license]; Matter of Geary v Commr. of Motor Vehicles, 92 A.D.2d 38, 40 [4th Dept 1983], affd 59 N.Y.2d 950 [1983] [since driver retained license from time of arrest, no substantial prejudice by delay in refusal hearing]; Matter of Tzetzo v Commr. of Motor Vehs., 97 A.D.2d 978, 978 [4th Dept 1983] [same]; Matter of Mullen, 144 A.D.2d at 888 [same]).
It is noted that regardless of whether defendant's license is suspended by the court, the DMV may nonetheless administratively schedule a chemical test refusal hearing for the revocation of defendant's license (see 15 CRR-NY § 127.9 [a]).
In enacting VTL §1194 (2) and providing for an immediate license suspension procedure in the event of a refusal, the Legislature demonstrated a clear intent "to protect the public, not the [allegedly] impaired driver" (Matter of Geary, 92 A.D.2d at 41; see also Pringle v Wolfe, 88 N.Y.2d 426, 434 [1996] [the State's interest in prompt removal of a safety hazard from its streets overrides any slight risk of erroneous deprivation to driver of a license suspension pending prosecution for driving while intoxicated]). "No physical characteristic or condition could be more closely related to incompetence to operate a motor vehicle than inebriation, and no aspect of motor vehicle regulation can be more important to the welfare of both operators and the public than keeping inebriated drivers off the public highways" (Matter of Geary, 92 A.D.2d at 40-41 [citations omitted]).
Based on the above, it is ordered that the People may present the proof of refusal and request defendant's license suspension subsequent to defendant's arraignment.
It is again noted that the issue of the sufficiency of the refusal paperwork is not before the court at this time.
If, after review of the refusal report, the court suspends defendant's license, a copy of the report shall be forwarded by the court to the Commissioner of Motor Vehicles (see VTL § 1194 [2][b][3]).