Given the Right Situation Collateral Estoppel May Apply at Revocation Hearings
February 13, 2008
We've all been there; the Trial Court has determined that no probable cause exists for the arrest. Problem is, your client refused to submit to the chemical test. The end result is that despite your best efforts, from a licensing standpoint, the client actually has less than he or she would have had if he or she had been convicted of at least driving while ability is impaired. Why, because as we explained a couple weeks ago, Vehicle and Traffic Law ' 1196(4) requires a conviction for an alcohol or drug related offense as a condition of eligibility. Thus, even though the occurrence was your client's first alcohol related operating offense, she will be ineligible to receive any relief from the refusal revocation notwithstanding that the charges had been dismissed. Or will she?
The concept of collateral estoppel is well known to all of us. Briefly, collateral estoppel or issue preclusion applies to a prior determination of an issue which was actually and necessarily decided in the earlier decision; it is confined to the point actually determined and applies only to issues which are actually litigated, not to those which could have been litigated. As commonly used, the term collateral estoppel is used to denote issue preclusion where the second action is based on a different claim (Brown v. Lockwood (1980, 2d Dept) 76 AD2d 721, 432 NYS2d 186). Although the doctrine of collateral estoppel applies to criminal as well as civil matters, it should not be applied to criminal prosecutions in quite the same way as that body of doctrine is applicable to civil cases (People v Berkowitz, (1980) 50 NY2d 333, 344, 428 NYS2d 927)
In criminal proceedings, collateral estoppel will only apply if the parties are the same (Matter of McGrath v Gold, (1975) 36 NY2d 406, 411, 369 NYS2d 62) or are so closely related that they may be deemed as one for these purposes. (People v Berkowitz, supra, at p 345.) Thus, when the Administrative Hearing Officer has determined that there existed no probable cause for an arrest, that decision will not be binding upon the People in the criminal proceeding since the identity of the parties at the criminal proceeding is different and the burden of proof required at the administrative hearing is by a mere preponderance of the evidence (People v. Lalka, (1982) 113 Misc. 2d 474, 449 NYS2d 579).
However, when the shoe is on the other foot, that is to say the criminal court has determined that there failed to exist sufficient probable cause for the arrest, the law takes a decidedly different tack. Essential in this regard is an understanding of the concept known as mutuality of estoppel. This doctrine, now discredited, required an identity of both parties and issues prior to a finding that an earlier determination was binding in a later action. Alive and well in criminal actions, the rejection of the mutuality principle in civil actions (B. R. De Witt, Inc. v Hall, (1967) 19 NY2d 141, 278 NYS2d 596; Gramatan Home Investors Corp. v Lopez, (1979) 46 NY2d 481, 414 NYS2d 308 [previous requirement that there be mutuality of estoppel is now a dead letter]) undermined the rule, which had long prevailed in New York, that a conviction in a criminal case could not be given conclusive effect in a subsequent civil suit (Gilberg v. Barbieri (1981) 53 NY2d 285, 441 NYS2d 49). It is now clear that the doctrine of collateral estoppel may be employed in a civil action to preclude the relitigation of issues necessarily determined in a prior criminal action (Hooks v. Middlebrooks (1984, 4th Dept) 99 AD2d 663, 472 NYS2d 54). Thus, an attorney in a disciplinary proceeding is precluded from relitigating the issue of his guilt which was determined in a criminal proceeding (Levy v. Association of the Bar (1975) 37 NY2d 279, 372 NYS2d 41).
Revocation hearings are, of course, decidedly civil in nature (People v. Lalka, supra). Accordingly, application of the foregoing means that when the criminal court has determined that an arrest of a motorist occurred in the absence of probable cause, that finding should be binding upon the administrative proceeding. Since probable cause for the arrest is one of the mandated findings under Vehicle and Traffic Law ' 1194(2)(c), the motorist will be free to carry the final Order of disposition from the criminal court into the administrative forum and rightfully demand that the ' 1194 refusal revocation proceeding be dismissed.
There is, however, one significant caveat. The foregoing will work only in the event that the alcohol refusal proceeding has not been previously decided. This is rooted in the need for finality of decisions. A motorist may not seek to reopen a prior administrative determination revoking the license for the simple matter that if the criminal determination had not been made at the time the administrative hearing was held, the issue preclusion necessary for success did not exist. Nor may the motorist seek to raise a subsequent victory in the criminal court upon an administrative appeal for the simple reason that the collateral determination which the motorist now seeks to employ is not part of the record to be reviewed.
The upshot of all this is that counsel, when faced with weak probable cause for the arrest, must make a judgement call. If you honestly believe that you will succeed in persuading the criminal court that no valid basis existed for the arrest, you may wish to seek an adjournment of the administrative hearing. Given the present backlog that exists in many parts of the State, this may mean that the matter will not be reached again for four months or longer. Although discretionary, a side benefit if this technique is that if your client has no prior alcohol related operating offenses, he or she may be afforded the opportunity to drive while awaiting the hearing. If, in the interim, you are successful upon a motion to dismiss for lack of probable cause, you should prepare an Order for the criminal court's signature and request that such Order be embossed with the seal of the Court. This Order should thereafter be presented when you appear at the rescheduled administrative hearing.
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