PEOPLE v. OSBORN

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County Court, Sullivan County, New York.

The PEOPLE of the State of New York, Plaintiff, v. Robert OSBORN, Defendant.

Decided: September 27, 2002

Stephen F. Lungen, District Attorney, Monticello (K.C. Garn of counsel), for plaintiff. Alan Joseph, Goshen, for defendant.

The People move, on September 25, 2002 at the return of Indictment# 185-02, for the Court to suspend defendant drivers license, without notice, pursuant to V & T § 1193(2)(e)(1).

Defendant, through his retained counsel, argue that the Court must first hold a “Pringle Hearing” prior to suspending defendant's drivers license pending prosecution.

Defendant was arrested on September 11, 2002 and charged with two counts of DWI-felony [CT# 1-for operating a motor vehicle in the Town of Mamakating, County of Sullivan with a blood alcohol content of .23 as shown by chemical analysis of his breath under V & T 1192(2) and Ct# 2-1192(3) ] and a traffic infraction (V & T 1102).

He was brought before the Town of Mamakating Justice Court for arraignment.   The Town Justice read him his rights whereupon the defendant indicated he understood said rights and that he would retain his own attorney.

The Town Justice adjourned the arraignment to September 19, 2002 for a “Pringle Hearing” regarding the defendant's blood alcohol content of .23 [V & T § 1193(2)(e)(7) ].   The judge also set bail at $1500 cash or $5000 bond.

Defendant, before returning to Justice Court, was charged by Indictment# 185-02 dated September 25, 2002 with DWI-felony.

Upon the return Indictment# 185-02 on September 25, 2002, before your within County Court Judge, the People made application to have defendant's drivers license suspended, without notice, pursuant to V & T § 1193(2)(e)(1).

This Court scheduled an arraignment for September 27, 2002 and had the defendant's counsel informed of said date.   Defendant's counsel thereupon objected to the people's application to suspend defendant's drivers license without notice, requested a Pringle Hearing and a short adjournment for time to prepare for said hearing.

The issue herein is whether a Due Process hearing is required before the defendant's drivers license may be suspended pending prosecution on an indictment charging a felony DWI under V & T § 1193(2)(e)(1) as it is required pursuant to Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 under V & T § 1193(2)(e)(7).

Offenses as well as sanctions under the Vehicle and Traffic Law (V & T) for drinking/drug driving offenses are statutorily controlled.

New York V & T § 1193, entitled sanctions, lists license sanctions under paragraph 2. and further specifies special provisions under subdivision (e) for suspension pending prosecution.

V & T § 1193(2)(e)(1) is entitled, “Suspension pending prosecution;  procedure” and allows for, a. the suspension, without notice, of defendant's drivers license when the holder has be charged with a violation of V & T § 1192(2), (3) or (4) and he has been convicted of any violation of V & T § 1192 with the preceding five years.   But, prior to said suspension, b. requires the court to make a finding that the accusatory instrument is sufficient upon its face and that there exists reasonable cause to believe that the holder operated a motor vehicle in violation of V & T § 1192(2), (3) or (4) and he has been convicted of any violation of V & T § 1192 with the preceding five years.   Further, the holder is entitled to an opportunity to make a statement regarding the issues and to present evidence to rebut the court's findings.

V & T § 1193(2)(e)(7) is entitled, “Suspension pending prosecution;  excessive blood alcohol content” and allows for, a. the suspension of defendant's drivers license when the holder has be charged with a violation of V & T § 1192(2) or (3) who, at the time of arrest, is alleged to have a blood alcohol content of .10 or higher.   But, prior to said suspension, b. requires the court to make a finding that the accusatory instrument is sufficient upon its face and that there exists reasonable cause to believe that the holder operated a motor vehicle when he had a blood alcohol content of .10 or higher.   Further, the holder is entitled to an opportunity to make a statement regarding the issues and to present evidence to rebut the court's findings.

In 1996 the Court of Appeals issued a decision in Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 setting forth certain parameters for suspending a license pending prosecution under V & T 1193(2)(e).

In Pringle, supra, the court found that “․a driver's license is a substantial property interest that may not be deprived without due process of law․”

The Court of Appeals found that due process requires that the court must hold a suspension hearing before the conclusion of the proceedings required for arraignment and before the driver's license must be suspended, that a prima facie showing must be established wherein the court finds that the accusatory instrument is sufficient on its face and that reasonable cause exists to believe that the driver operated a motor vehicle with a blood alcohol content of .10 or higher, that the court is in possession of the results of the chemical test in certified documented form and, if a prima facie showing has been made, that the defendant is entitled to an opportunity to make a statement or present evidence to rebut the court's findings.   See, Pringle, supra.

The People argue herein that Pringle, supra is applicable to mandatory suspension under V & T § 1193(2)(e)(7) but not under V & T § 1193(2)(e)(1).

This Court finds that the principles upon which the Court of Appeals based Pringle, supra in regard to V & T § 1193(2)(e)(7) apply equally herein with regard to V & T § 1193(2)(e)(1).   See, People v. Giacopelli, 171 Misc.2d 844, 655 N.Y.S.2d 835 (Tn of Clarkstown J.C., 1997).

A drivers license is a substantial property right and due process must be followed whether that property right is sought to be taken under V & T § 1193(2)(e)(7) or (2)(e)(1).

The statutory language of V & T § 1193(2)(e)(7) is almost exactly the same as V & T § 1193(2)(e)(1) with the one exception that one of the criteria for the taking under V & T § 1193(2)(e)(7) is blood alcohol content of .10 or higher while one of the criteria under V & T § 1193(2)(e)(1) is a prior conviction of any section of V & T § 1192 within the preceding five years.   This distinction does not mollify one's Due Process rights under Pringle.

Other than the one difference in criteria above, both V & T § 1193(2)(e)(7) and V & T § 1193(2)(e)(1) require a hearing, the court making a finding under a prima facie showing by the People and the defendant having the opportunity to offer evidence to rebut the court's findings.

Based upon the above, it is ordered that the application by the People for the immediate suspension of the defendant's driver's license prior to arraignment is denied.

FRANK J. LABUDA, J.

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