Opinion
23-20
04-28-2020
In the Matter of the Application of Timothy J. SMITH, Petitioner, v. APPEALS BOARD OF the ADMINISTRATIVE ADJUDICATION BUREAU, State Department of Motor Vehicles, and the Commissioner of Motor Vehicles, Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
Sperano & Housel, Attorneys at Law, Jason M. Housel, of Counsel, 66 North Main Street, Canandaigua, New York 14424, Attorneys for Petitioner Letitia A. James, Attorney General of the State of New York, Adele Durand, Assistant Attorney General, The Capitol, Albany, New York 12224-0341, Attorneys for Respondent
Sperano & Housel, Attorneys at Law, Jason M. Housel, of Counsel, 66 North Main Street, Canandaigua, New York 14424, Attorneys for Petitioner
Letitia A. James, Attorney General of the State of New York, Adele Durand, Assistant Attorney General, The Capitol, Albany, New York 12224-0341, Attorneys for Respondent
Denise A. Hartman, J. Petitioner commenced this CPLR article 78 proceeding challenging respondents' determination to revoke his driver's license based on his refusal to submit to a chemical breath test following his arrest for driving while intoxicated. The arresting officer's failure to provide a chemical test refusal report on the form prescribed by the Department of Motor Vehicles (DMV) did not deprive the DMV of jurisdiction to conduct a chemical test refusal hearing and issue a determination to revoke petitioner's license where, as here, the arresting officer testified to the material facts required to support revocation. Accordingly, the petition is denied.
Background
On March 10, 2019, New York State Trooper Christopher Ellinwood arrested petitioner and charged him with, among other things, driving while intoxicated (DWI) with one prior DWI within the past 10 years (see Vehicle and Traffic Law § 1192 ) and failing to submit to a roadside breath test (see Vehicle and Traffic Law § 1194 ). On or about March 11, 2019, petitioner was arraigned in the Seneca Falls Town Court. The arraignment judge temporarily suspended petitioner's driver's license pending a Department of Motor Vehicles (DMV) refusal hearing. On or about March 14, 2019, the DMV Safety and Business Hearing Bureau received a copy of the Notice of Temporary Suspension and Notice of Hearing (DMV Form AA-137), dated March 11, 2019, scheduling petitioner's DMV refusal hearing for March 29, 2019. Accompanying the Notice was a copy of a simplified traffic information, upon which the arresting officer affirmed that petitioner refused a roadside breath test. On March 18, 2019, the Hearing Bureau also received two additional simplified traffic informations charging violations of DWI and failure to obey a traffic signal, a supporting deposition, and a printout from the chemical breath test instrument indicating a refusal.
On March 29, 2019, petitioner appeared with counsel for a DMV refusal hearing before Administrative Law Judge (ALJ) Leibo. At the start of the hearing, Trooper Ellinwood stated that he never completed or filed a refusal report (DMV Form AA-134). He then testified, in sum and substance, as follows: Trooper Ellinwood stopped petitioner's vehicle as he was attempting an illegal U-turn in the center median of the New York State Thruway. When Trooper Ellinwood approached petitioner, petitioner smelled of alcohol, his neck and face appeared flushed, and his eyes were red. Petitioner admitted that he was coming from a brewery and had consumed "a couple of IPAs." According to Trooper Ellinwood, petitioner showed impairment on several field sobriety tests. Trooper Ellinwood placed petitioner under arrest, requested he submit to a preliminary breath test, and informed him that his refusal was punishable by traffic ticket. Petitioner refused the preliminary breath test. Trooper Ellinwood continued administering field sobriety tests and asked petitioner four separate times to submit to a chemical breath test to determine his blood alcohol content. With each request, Trooper Ellinwood read the New York State Police Driving or Operating While Intoxicated Warning, advising petitioner that his failure to submit to a chemical test would result in the immediate suspension and subsequent revocation of his license. Petitioner refused each time.
Following Trooper Ellinwood's testimony, petitioner's counsel argued that, because the officer failed to complete a refusal report Form AA-134, the DMV was without jurisdiction to revoke petitioner's license. ALJ Leibo stated his opinion that the absence of a refusal report was non-fatal where the requisite testimony was provided at the hearing. On April 3, 2019, ALJ Leibo issued findings that Trooper Ellinwood had reasonable grounds to believe that petitioner was operating a motor vehicle under the influence; the arrest was lawful; petitioner was given adequate warnings; and petitioner refused a chemical breath test. As a result, he revoked petitioner's driver's license pursuant to Vehicle and Traffic Law § 1194. On or about April 11, 2019, petitioner filed an administrative appeal. On September 24, 2019, the Appeals Board rendered a final decision affirming the ALJ's determination.
Petitioner commenced this CPLR article 78 proceeding by notice of petition dated December 20, 2019. Petitioner argues only that respondents lacked jurisdiction to conduct a refusal hearing and revoke his driver's license because the arresting officer did not complete and file a chemical test refusal Form AA-134 as required by law. Respondents have answered and oppose the petition.
Although petitioner challenges a determination rendered following a hearing held pursuant to law, he raises no substantial evidence argument (see CPLR 7804 [g] ). As there are no disputed issues of fact, the Court is left only with the question of law of whether the absence of a refusal report divested the DMV of jurisdiction to conduct a refusal hearing and revoke petitioner's license.
Analysis
Pursuant to Vehicle and Traffic Law § 1194 (2) (a), any person operating a motor vehicle in the State of New York is deemed to have given consent for, as is relevant here, a chemical breath test for the purposes of determining blood alcohol content, provided that the officer has reasonable grounds to believe that the person was operating a motor vehicle under the influence of alcohol. If, after being placed under arrest and being informed of the consequences of refusal, the individual refuses to submit to a chemical breath test, his or her driver's license shall be revoked, regardless whether the arrest results in a criminal conviction (see Vehicle and Traffic Law § 1194 [2] [b] [1] [a] ).
"[A] written report of such refusal shall be immediately made by the police officer before whom such refusal was made" ( Vehicle and Traffic Law § 1194 [2] [b] [1] [a] ). "Such report 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 section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report" ( Vehicle and Traffic Law § 1194 [2] [b] [1] [a] ). The refusal report must set forth reasonable grounds to believe that the arrested person had been driving while intoxicated, that the person refused to submit to a chemical test, and that no chemical test was administered (see Vehicle and Traffic Law § 1194 [2] [b] [2] ). The DMV has prescribed Form AA-134, Report of Refusal to Submit to Chemical Test, upon which the arresting officer is to report a refusal (see 15 NYCRR 139.2 [a] ["The arresting police officer shall cause to be made a written report of such refusal on a form provided by or acceptable to the commissioner, verified as provided by law [ ]").
The chemical test refusal report must be presented at the individual's criminal arraignment and forwarded to the DMV within 48 hours thereafter (see Vehicle and Traffic Law § 1194 [2] [b] [2], [2] [c] ). The DMV is required to schedule a refusal hearing within 15 days of arraignment (see Vehicle and Traffic Law § 1194 [2] [c] ). The individual's license must be revoked if, after the hearing, the ALJ finds 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 a refusal (see Vehicle and Traffic Law § 1194 [2] [c] ).
The Court is unpersuaded that, as a matter of law, Trooper Ellinwood's failure to prepare a Form AA-134 chemical refusal report divested the DMV of jurisdiction to conduct a refusal hearing and revoke his license. Petitioner relies only on the text of Vehicle and Traffic Law § 1194 and 15 NYCRR 139.2 (a) ; he provides no controlling caselaw in support of his argument. The caselaw in this area does not support petitioner's jurisdictional argument.
For example, Supreme Court, New York County (Bannon, J), recently rejected an argument that a defective Form AA-134 stripped the DMV of jurisdiction to revoke the petitioner's license: "[N]o controlling authority has imposed a requirement on the DMV that it produce proof of a correctly completed refusal report [Form AA-134] in order to acquire jurisdiction to revoke [an individual's] license at a hearing held pursuant to [Vehicle and Traffic Law] § 1194 (2) (c)" ( Matter of Cartagena v. Egan , 2019 NY Slip Op. 31036[U], *3 [Sup. Ct, N.Y. County 2019] ). Furthermore, the Appellate Division has held that the failure to timely forward the chemical breath test refusal form to the DMV did not divest the DMV of jurisdiction to hold a refusal hearing to revoke petitioner's license (see Matter of Mullen v. New York State Dept. of Motor Vehs. , 144 A.D.2d 886, 887-888, 535 N.Y.S.2d 206 [3d Dept. 1988] ; see also Matter of Geary v. Commissioner of Motor Vehs. Of State of NY , 92 A.D.2d 38, 40, 459 N.Y.S.2d 494 [4th Dept. 1983], affd 59 N.Y.2d 950, 952, 466 N.Y.S.2d 304, 453 N.E.2d 533 [1983] ). These cases suggest that the failure to strictly comply with the procedures prescribed by the statute and forms prescribed by the regulations does not deprive the DMV of jurisdiction.
The Court acknowledges that, in this case, Trooper Ellinwood wholly failed to prepare a chemical test refusal report on the DMV's prescribed Form AA-13. But he did prepare a verified, simplified information and supporting deposition charging petitioner with operating a motor vehicle under the influence of alcohol that satisfied the requirements of Vehicle and Traffic Law § 1194 and any due process concerns that may arise in the absence of a refusal report. In the supporting deposition, verified under penalty of Penal Law § 210.45, a class A misdemeanor, Trooper Ellinwood averred that: (1) he stopped petitioner's vehicle for violating Vehicle and Traffic Law § 1110 ; (2) he observed petitioner operating the vehicle (with petitioner at the wheel, the keys in the ignition, and the motor running) and petitioner admitted to driving; (3) there was probable cause for petitioner's arrest, in that he observed petitioner driving and petitioner smelled of alcohol, had glassy eyes, impaired speech, and impaired motor coordination; (4) petitioner failed six separate field sobriety tests; and (5) petitioner refused both a screening breath test and a chemical breath test. This documentation would have been sufficient for the arraignment judge to issue Form AA-137, Notice of Temporary Suspension and Notice of Hearing, triggering the refusal hearing before DMV.
To the extent that petitioner seeks to challenge to the arraignment judge's disposition, such challenge is not properly before the Court in this CPLR article 78 proceeding; in any event, it would be moot given DMV's post-hearing revocation of the license — the determination at issue in this proceeding.
More importantly, at the refusal hearing, Trooper Ellinwood provided sworn testimony consistent with that documentation, which was subject to cross-examination. Trooper Ellinwood's testimony provided ample evidence to support the hearing officer's findings that petitioner was lawfully arrested; that he was intoxicated; and that he refused to submit to a chemical test despite explicit warnings of the consequences of a refusal, resulting in revocation (see Vehicle and Traffic Law § 1194 [2] [c] ). Indeed, petitioner does not challenge respondent's factual findings. To the extent that the revocation of a driver's license in the absence of a chemical test refusal report on the Form AA-134 prescribed by DMV might implicate due process concerns, such concerns are not present here, where the arresting officer provided sworn testimony addressing all the elements required by statute and regulations to support revocation.
According to the affidavit of Renée Behrens, Assistant Counsel for respondent DMV, the refusal report provides the basis for the arraignment court to file and serve the Notice of Temporary Suspension and Notice of Hearing (DMV Form AA-137) on the defendant in a criminal action." And, should the officer fail to appear at the DMV refusal hearing, the ALJ may rely on the Chemical Test Refusal Report (DMV Form aa-134) as evidence in lieu of the officer's live testimony.
Accordingly, it is
Ordered and Adjudged that the petition is denied.
This constitutes the decision and judgment of the Court.