In New York, if you are arrested for DWI and your blood alcohol content is over .08% , you must surrender your license at arraignment* if the judge finds "that the accusatory instrument** is sufficient on its face" and there is "reasonable cause to believe that the driver operated a motor vehicle with a blood alcohol level in excess of [.08] of 1% as evidenced by the results of a chemical test." (Schermerhorn v Becker, 64 AD3d 843, 846 [3d Dept 2009]; VTL 1193b].) A defendant is entitled to a hearing to determine if reasonable cause exists to believe his or her BAC is above .08%.
The timing of the prompt suspension is important, but often overlooked. The prompt suspension must happen at arraignment. If the arraignment concludes--i.e. if the defendant enters a not guilty plea and the judge does not expressly hold the arraignment open--then the judge loses the power to suspend the defendant's license pending prosecution under the prompt suspension law. (See VTL 1193[b] ["The suspension . . . shall occur not later than at the conclusion of all proceedings required for the arraignment"].)
Often, the arraignment happens within hours or days after arrest, and the Court simply does not receive the supporting paperwork necessary to establish a BAC of .08 or higher--typically the certified breathalzyer results for a breath test, or lab results for a blood draw--in time for the arraignment. The Court should not suspend a defendant's license if it does not have reliable, first-hand evidence of the defendant's BAC level.
But what if the judge decides to go ahead with the arraignment without suspending a defendant's license, but later receives the appropriate supporting documents? Can the judge suspend the defendant's license at a later court date once it receives evidence that the defendant's blood alcohol content exceeds .08%?
No. Clark Zimmermann, Jr. a partner in my office, recently had just such a case. The judge who arraigned his client in Town Court did not suspend the client's license, because the Court had not received the paperwork establishing the BAC level. The client pleaded not guilty, concluding the arraignment.
At the next court date, a different judge took over the matter, and indicated he had now received the BAC paperwork and was going to suspend our client's license pending prosecution at the next court date. We brought an Article 78 proceeding in Supreme Court, basically asking a Supreme Court judge to prohibit the Town Court from suspending our client's license, as arraignment was concluded and under the plain language of the statute the Town Court judge no longer had the authority to suspend our client's license.
The Town Court judge, to his credit, conceded in his response papers that he had no authority to suspend our client's license and would not attempt to do so. As a result, our client gets to keep his license while his case unfolds.
As with most aspects of a DWI case, the devil is in the details. The New York statutory DWI scheme is complex, and it pays to know what your rights are at every step of the way. Far too many defendants simply hand their licenses over to the judge at arraignment, believing that they have no choice but to do so. The Court wants to suspend your license based on a BAC level of over .08%? Make them prove it. If the Court can't prove the BAC level at arraignment, you get to keep your license while the case unfolds. Period.
* An arraignment is the first court appearance. The defendant typically pleads not guilty to whatever charge he/she is facing, bail is set (if appropriate), and the matter is adjourned.
** The accusatory instrument is nothing more than the piece of paper alleging that the defendant committed a specific crime and how he committed it. Every element of the crime, and facts sufficient to establish every element, must be alleged.