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Fiandach & Fiandach (Rochester NY)

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Vehicle and Traffic Law 1192-a Selected Problems

February 14, 2008

In Volume 3 Issue 14, we examined the statutory workings of Vehicle and Traffic Law ' 1192-a, the entirely new administrative provision for motorists who have consumed alcohol and are under the age of 21. Basically, as we outlined previously, this section and it's conforming legislation establishes a unique administrative framework whereby the motorist is not arrested, but detained. Nor is the matter returnable in a local criminal court. Violations of Vehicle and Traffic Law ' 1192-a are administrative. This means that unlike a refusal, the entire matter will be heard by an administrative hearing examiner appointed by the Department of Motor Vehicles.

The uniquely administrative character of this procedure creates some interesting interplay between the new legislation and the world as we know it to be. This week we'll look at some of the more common scenarios.

<.05 to .07; Choice of laws

There is an overlapping area between Driving While Ability is Impaired and Vehicle and Traffic Law ' 1192-a. Specifically, it falls in the range denominated by Vehicle and Traffic Law ' 1195(2)(b). This subsection provides that:

Evidence that there was more than .05 of one per centum but not more than .07 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, but such evidence shall be relevant evidence, but shall not be given prima facie effect, in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol;

 

Within Vehicle and Traffic Law ' 1192-a, this section is subsumed by the precatory language which declares:


a person under the age of twenty‑one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood.

 

 

Now, it should be recalled that a detention under Vehicle and Traffic Law ' 1192-a, even for those underage motorists who meet the statutory criteria is not mandatory. Vehicle and Traffic Law ' 1192-a clearly declares that

any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety‑two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety‑four‑a of this article.

 

The import of this clause is to clearly declare that a charge of Vehicle and Traffic Law ' 1192-a is not mandatory. By setting forth that it is applicable to those underage motorists who have not been charged with a violation of Vehicle and Traffic Law ' 1192, it has obviously maintained a charge under that section is an option.

Thus, by virtue of this overlapping range and the discretionary power of the arresting officer, the motorist who is under 21 at the time of the violation and is charged with a violation of Vehicle and Traffic Law ' 1192-a is handed several significant gifts.


Initially he or she will only be detained, as defined in the statute, and will not be arrested. Secondly, the underaged motorist who is cited under ' 1192-a will receive substantial benefit in sentencing. The new act expanded upon the sentencing scheme for Driving While Ability is Impaired by breaking former ' 1193(2)(a) into two subsections. New subsection (1) substantially restates existing Vehicle and Traffic Law ' 1193(2)(a) by reimposing a suspensionary period of 90 days when the motorist is convicted of the violation of Driving While Ability is Impaired. New subsection (2) however sets forth that for a person who is found to have violated Vehicle and Traffic Law ' 1192-a, the period of suspension shall be six months. Thus the underaged motorist, operating within the impaired range of <.05 - .07 will only be suspended and for only half the otherwise applicable period at that. Vehicle and Traffic Law ' 1193(2)(b)(6) which was left untouched by the new legislation, mandates that if the same motorist was convicted of Driving While Ability is Impaired the period of revocation shall be:

One year, where the holder is convicted of or adjudicated a youthful offender for a violation of any subdivision of section eleven hundred ninety‑two of this article where such person was under the age of twenty‑one at the time of commission of such violation.

 

Moreover, other critical differences exist within the <.05 to .07 ' 1192-a scheme which are similarly dependant upon the discretionary authority of the arresting/detaining officer.

Prior to the enactment of Vehicle and Traffic Law ' 1192-a, if an underaged motorist were convicted of Driving While Ability is Impaired, criminal penalties would be enhanced in the event that the motorist were convicted of a similar offense at a later point in time. As a result of the reclassification of the charge upon the decision of the detaining officer when the results of the chemical test were <.05 to .07, the adjudication will be of no effect in enhancing the later violation.


Of true concern is the rather substantial Equal Protection issue which the statute creates. When the motorist is over 21 and has a blood alcohol content of <.05 to .07, the operator will be charged with Driving While Ability is Impaired. If convicted, it will remain with the adult motorist for a period of ten years for the purpose of enhancement. The underaged motorist who has been adjudicated under Vehicle and Traffic Law ' 1192-a, on the other hand, undergoes no such consequences. Further, as we have noted on previous occasions, in certain sections of the State, various agencies are choosing to charge motorists with test results in the <.05 to .09 range with common law Driving While Intoxicated under Vehicle and Traffic Law ' 1192(3). Setting aside for a moment the effect of the presumptions created by Vehicle and Traffic Law ' 1195(2)(b), acquiescence in this practice could, given a prior, result in a charge for a felony in an adult whereby in an underaged, and presumably less tolerant minor, the total liability would be the adjudicative remedy.

The Detention

As we discussed in issue 14, the framework created under Vehicle and Traffic Law ' 1192-a has bypassed an arrest. New Vehicle and Traffic Law ' 1194(a)(4) denotes in no uncertain terms that:

[N]otwithstanding any other provision of law to the contrary, no person under the age of twenty‑one shall be arrested for an alleged violation of section eleven hundred ninety‑two‑a of this article. However, a person under the age of twenty‑one for whom a chemical test is authorized pursuant to this paragraph may be temporarily detained by the police solely for the purpose of requesting or administering such chemical test whenever arrest without a warrant for a petty offense would be authorized in accordance with the provisions of section 140.10 of the criminal procedure law or paragraph (a) of subdivision one of this section .

 

Moreover, the criteria for a detention is reasonable grounds to believe that the motorist has been operating in violation of Vehicle and Traffic Law ' 1192-a. In defining reasonable grounds to believe, solely for the purpose of a ' 1192-a detention, the legislature chose terminology which strongly smacks of the totality of the circumstances test which was rejected by the Court of Appeals in People v Griminger (1988) 71 NY2d 635, 529 NYS2d 55, 524 NE2d 409:


For the purposes of this paragraph, "reasonable grounds" to believe that a person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety‑two‑a of this article shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of such subdivision. Such circumstances may include any visible or behavioral indication of alcohol consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in or around the vehicle driven by the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the time of the incident;

 

This section is certain to spawn some unique and perhaps unpleasant holdings as a result of the strange legal fiction which has been created.

Initially, we would be remiss if we did not point out that as a result of the insertion of this language in ' 1194(2) the legislature has, in effect, created two standards for testing; an arrest or a positive PBT which is required to administer a test in all traditional stops and Athe totality of the circumstances which is required when the motorist is detained under ' 1192-a. This dual track scheme begs the obvious. Assume probable cause to believe the motorist is not intoxicated or impaired is lacking but assume that a sufficient showing may be made under the totality of the circumstances test. Further assume that the result of the chemical test is a .15. The officer may not charge the underage motorist with a violation of Vehicle and Traffic Law ' 1192-a, as the test is to high. May the officer then choose to charge the criminal offense, Driving While Intoxicated? Before answering yes, consider the following. The trigger for the test was the totality standard. Moreover, the motorist is not yet under arrest. While probable cause to arrest for the criminal offense now exists, it exists solely as a result of the chemical test. The net effect is that the probable cause for the arrest was derived by the fruit of a search conducted without probable cause. In this regard, it is academic that an arrest may not be supported by evidence which was subsequently retrieved as a result of an illegal search (see, People v. Burr, (1987) 70 NY2d 354, 520 NYS2d 739).


Additionally, the totality of the circumstances test, in conjunction with the detention procedure which has been created, may bring about additional complications where, as a result of the detention, evidence of additional crimes is uncovered. In a situation, such as a search of the motorist's wallet which discloses cocaine, the field may be ripe for suppression since the motorist was not under arrest. While we have a general feeling as to how this will ultimately play out, we are deeply concerned by the potential for weakening of this bedrock principle of our law (Burr, supra).

We'll be returning to this statute from time to time as events dictate.



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