Opinion
2007QN058322.
Decided May 13, 2008.
Defendant Linda Foggia moves for an order vacating the order of suspension issued pursuant to VTL § 1193(2)(e)(7), and reinstating her driving privileges and license on the ground that the order of suspension was wrongfully issued.
Defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§ 1192 and [3],) and Turning Movements and Required Signals (VTL § 1163[b].) The accusatory instrument charges defendant with the commission of the aforementioned offenses on October 19, 2007, between 10:00PM and 10:06PM, at the intersection of 41st Avenue and Kennedy Street, Queens, New York, under the following circumstances:
Deponent [Police Officer Richard Napolitano] states that at the above date, time and place of occurrence, he observed the defendant, Linda Foggia, operating a 2007 Ford which failed to signal when making a right turn.
Deponent further states upon approaching the defendant he observed the defendant to be in an intoxicated condition in that the defendant had blood-shot watery eyes, flushed face, combative, slurred speech, a strong odor of an alcoholic beverage on [her] breath and that the defendant was unsteady on her feet upon exiting the vehicle.
Deponent further states that the defendant was taken to the 112th Pct where an Intoxilyzer exam was administered to the defendant and that the results of said Intoxilyzer exam indicated that the defendant had a .089 of one percentum or more by weight of alcohol in [her] blood.
Defendant moves to have her license reinstated. Defendant argues that inasmuch as her alleged blood alcohol content ("BAC") was .089%, which should be read as .08%, and inasmuch as VTL § 1193(2)(e)(7) requires a suspension only for a reading "in excess" of .08%, her license was wrongfully suspended.
Vehicle and Traffic Law § 1194(4)(c) provides that, "[t]he department of health shall issue and file rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person's blood, urine, breath or saliva. . . ." In this regard, New York State's Department of Health's Rules and Regulations (10 NYCRR) § 59.5 provides the method to use when reading the results of a breath test for alcohol:
Breath analysis; techniques or methods
Breath test techniques and methods meeting the following criteria are established by the training agencies under the direction of the commissioner. (e) Results of an analysis of breath for alcohol shall be expressed in terms of percent weight per volume, to the second decimal place as found; for example, 0.237 percent found shall be reported as 0.23 percent.
In light of the above, defendant is correct in her contention that her reading of .089% BAC is to be read only to the second decimal place, that is, as .08% BAC. ( 10 NYCRR § 59.5; People v Yambo, 190 Misc 2d 110, 113 [Dist Ct Suffolk County 2001].)
Defendant further argues that her license was wrongfully suspended as VTL § 1193(2)(e)(7)(a) should be read as requiring suspension of a license only if a defendant is alleged to have a BAC reading "in excess of" .08%. Defendant cites Pringle v Wolfe, 88 NY2d 426, in support of this argument.
Vehicle and Traffic Law § 1193(2)(e)(7)(a) provides as follows:
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)] 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).]
Thus, when a defendant has been charged with driving while intoxicated as a result of having a BAC by weight of at least .08 of one percent, the statute mandates suspension of the defendant's driver's license pending prosecution. (VTL § 1193[e][7][a].) Mandatory suspension must occur "no later than at the conclusion of all proceedings required for the arraignment." (VTL § 1193[e][7][b]; Pringle v Wolfe, 88 NY2d 426, supra.) Suspension pursuant to VTL § 1193, is a civil sanction given for the failure to pass a chemical sobriety test and is not considered a criminal penalty for the underlying offense of driving while intoxicated. ( People v Haishun, 238 AD2d 521, 522 [2d Dept 1997]; People v Ferraiolo, 223 AD2d 556, 557 [2d Dept 1996]; People v Roach, 226 AD2d 55, 57 [4th Dept 1996].)
In addition to the statutory requirements, the Court of Appeals added additional safeguards to the suspension procedure, reasoning that a license to operate a motor vehicle is a valuable property right which may not be deprived without due process of law. ( Pringle v Wolfe, supra; Matter of Moore v Macduff, 309 NY 35.) Pursuant to Pringle v Wolfe, a court must hold a suspension hearing, now called a Pringle hearing, "before the conclusion of the proceedings required for arraignment and before the driver's license may be suspended." ( 88 NY2d at 432.) At this hearing, two findings must be made: (1) the court must find that the accusatory instrument conforms to the requirements of CPL § 100.40, which sets forth the facial sufficiency requirements for criminal court accusatory instruments; and (2) the court must find that "there exists reasonable cause to believe" that defendant operated a motor vehicle with a BAC of .08% or more by weight of alcohol in his or her blood as shown by chemical analysis of such person's blood, breath, urine or saliva. (VTL § 1193[e][7][b]; Pringle v Wolfe, at 432; People v Roach, at 57.) At the hearing, and prior to suspension, a court must have in its possession the results of the chemical test in certified, documented form. (CPLR § 4518[c]; Pringle v Wolfe, at 432; People v DeRojas, 180 Misc 2d 690, 691 [App Term 9th 10th Jud Dists 1999].
Once a prima facie showing has been made, the driver "shall be entitled to an opportunity to make a statement regarding these two issues and to present evidence to rebut these findings." (VTL § 1193[e][7][b].) The Pringle Court held that the defendant's opportunity to rebut, must come prior to when the suspension is ordered, otherwise that right would be meaningless. ( 88 NY2d at 432.) It follows then 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; People v Green, 176 Misc 2d 354, 356 [City Court of Poughkeepsie 1998].) If the defendant rebuts the prima facie showing at the Pringle hearing, the defendant's driver's license should not be suspended pending prosecution. ( People v Roach, supra.)
At the time The Court of Appeals issued the Pringle decision, VTL § 1193[e][7][a] provided for suspension for a BAC of ".10 of 1% or more." The Court cited that statutory language verbatim in a footnote. However, in its dicta, the Courtchanged the language of the statute to provide for suspension for a BAC "in excess of .10 of 1% as shown by a chemical test [emphasis added]." In this regard, one court asserted that the Court appears to have "slightly misstate[d] the law as to what percentage of blood alcohol content is required for suspension." ( People v Green, supra at 356.)
Defendant avers that the current form of VTL § 1193 [e] [7], which states that a suspension is mandated for a blood alcohol content of .08% or more, should be read, as meaning "in excess of" .08% of blood alcohol content, just as it was in Pringle.
Defendant's motion is denied for several reasons. Defendant was arraigned on October 20, 2007 and made this motion on April 9, 2008. Procedurally, defendant failed to rebut the prima facie finding of the court prior to the conclusion of all proceedings required for the arraignment or otherwise ask for a short adjournment to marshal facts in this regard. (VTL § 1193[e][7][b]; Pringle v Wolfe, 88 NY2d 426.
Even if the Court were to accept defendant's arguments at this point in the action, the motion would be denied on substantive grounds as well. While the reason for the discrepancy in the reading of the statutory language in the Pringle decision is unclear, nevertheless, the plain language of the statute, in its current form, clearly states that suspension is mandatory when there is a blood alcohol content is .08% of BAC or more. (VTL § 1193 [e] [7].) Further, an examination of Vehicle and Traffic Law § 1195[c], supports this interpretation that a measurement of .08% is per se intoxication and sufficient to mandate suspension. That statute provides that "evidence that there was .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition." (VTL § 1195[c].)
According to defendant's chemical test analysis, less than forty minutes after being stopped for failing to signal when making a right turn, an Intoxilyzer examination was given to her which had a measurement of .089% BAC. The accusatory instrument alleges that the arresting officer observed defendant "to be in an intoxicated condition in that the defendant had blood-shot watery eyes, flushed face, combative, slurred speech, a strong odor of an alcoholic beverage on [her] breath and that the defendant was unsteady on her feet upon exiting the vehicle."
Thus, the accusatory instrument contains factual allegations sufficient to establish reasonable cause to believe that defendant violated both VTL §§ 1192 (2), and (3), which both require mandatory suspension. It is also noted that in view of the facts alleged in the accusatory instrument, even if a mandatory suspension pending prosecution had not been ordered due to the People's failure to comply with Pringle requirements, pursuant to VTL § 510(3-a), a discretionary suspension could have been ordered. (see also, VTL § 1193[e][7][c] ["Nothing 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"].)
Accordingly, defendant's motion for an order vacating the order of suspension issued pursuant to VTL § 1193(2)(e)(7), and reinstating her driving privileges and license, is denied.
This constitutes the decision and order of the Court.