Thursday, December 18, 2008

Pringle Hearing and the DWI Prompt Suspension

In handling our DWI cases, the "prompt suspension law" has been bothering me, along with a number of other issues. I first wrote about this a couple years ago as part of a post about judges who have policies. So now I'm going to rant about what's wrong with the prompt suspension and how Pringle v. Wolfe (88 N.Y.2d 426 (1996)) is being applied (or misapplied).

For those who don't know, here's what happens at the start of most DWI cases. The defendant shows up for the court date on the ticket. If the defendant pleads guilty (to DWI or DWAI), then the judge suspends the defendant's license. The court almost always grants a "20-day stay" which allows time to get into the Drinking Driver Program (DDP). By getting into the DDP, the defendant gets a conditional license which lets you drive to work, for work, and some other driving. You get your full license back in 90 days on a DWAI. That's what happens to the guilty people.

For those who show up and plead not guilty, it's a mixed bag. Many judges will suspend the driver pursuant to the prompt suspension law (Vehicle & Traffic Law § 1193[2][e][7]). If you have a lawyer or know what you're doing, you can ask for a Pringle Hearing. That will usually let you keep your license for a few days. You almost always lose the Pringle Hearing because the deck is stacked against you (I'll get into that). Thirty days after the suspension starts you can go to DMV and get a conditional license similar to the DDP one. Some drivers will be able to get a hardship privilege for the 30-day period, but that's difficult and the privilege is very limited -- to and from work only. It doesn't let you drive for work. If you're unemployed, it doesn't let you drive to look for work either.

So, for the innocent (remember that whole innocent until proven guilty thing?), you either can't drive at all or have extremely limited driving for 30 days, and then your driving is somewhat limited while the case is pending - which can take a year or more. The guilty get their full license for 20 days, then get the milder suspension for 90 days. This is the root of the problem, but there are many branches.

Underlying all of this is the real purpose - the prompt suspension discourages people from fighting the DWI case. Innocent people who need to drive plead guilty so they can drive.

There are at least a couple constitutional issues. For starters there's procedural due process - you're supposed to get notice and an opportunity to be heard. You show up to court and the judge tells you he's going to suspend your license. In many cases that's your notice and most people don't know to ask for the Pringle Hearing (your opportunity to be heard). In some courts the judges require you to make a written motion for your Pringle Hearing. You get the opportunity to be heard only if you make a formal application for it. And some judges will suspend you before the Pringle Hearing starts.

Then within the hearing, the standard for suspension is simply whether the "accusatory instrument" (the ticket) is facially valid (they wrote it correctly) and whether there's a valid chemical test showing your BAC was over the limit (0.08). There are other issues that should be considered, but many judges are not interested in them. They don't care about probable cause, or if the chemical test sheet shows irregularities that are unexplained. I just had a hearing where the chemical test showed that the "reference standard" (a bottle of solution that is confirmed by a lab to be 0.10) tested at 0.09 and the temperature was off by 0.1 degrees celsius. I argued that the State should have to prove by expert testimony that this was a valid chemical test. Instead the police officer, who got trained 3 months ago, said that he was trained such variation was acceptable. There's no foundation for his expertise. Nada. He's not an expert. He doesn't know the difference between vertical and horizontal (he demonstrated that in the hearing). Allowing junk science with no foundation into a courtroom further violates the defendant's procedural due process rights.

The process does allow the driver to "rebut" the findings. But this is a ridiculous shifting of the burden. Instead of the State having to show that its tests and evidence are valid, the defendant has to show the tests and evidence are invalid. The State is taking away a substantial right and it should be the State's burden.

The burden shifting also takes us into another realm - substantive due process. When the State infringes a fundamental right, it's means must be narrowly tailored to a compelling interest. Here the Courts will likely say that maintaining highway safety fits. Of course it seems like the government keeps finding more and more compelling interests. The larger problem is the lack of tailoring.

If the concern is protecting highway safety, then how is it tailored if the guilty ones get to continue driving on an unlimited license for 20 days and continue somewhat limited for 90 days, but the innocent drivers can't drive (or are very limited on the hardship privilege) for 30 days and are then limited for an indefinite period of time that often exceeds a year?

Our civil rights are being trampled. Crossing the border is a nightmare to protect us from illegal aliens who want to work on our farms, build our buildings, and take care of our gardens and children. Millions of New Yorkers are subjected to intimidating traffic stops (and worse) to protect us from those who drive 80 mph on roads designed for cars to go 120 mph. With DWI, thousands upon thousands of drivers are rudely interrupted from their daily lives and subjected to "field sobriety tests" (also junk science) and more, and many innocent drivers are suspended for a year or longer. I do appreciate the desire to keep us safe from drunk drivers. The criminal process takes care of that without the need for the prompt suspension law.

Here's what the Pringle case says about that:
To compel the State to provide another level of procedural protection would require plenary hearings and would effectively convert the license suspension proceeding into a trial on the merits of the underlying criminal charge. Such a procedure would be prohibitively expensive and cumbersome, and would subvert the State's compelling interest in promoting highway safety. In view of the temporary duration of the license suspension, such elaborate procedural protections are not constitutionally mandated.

The license suspension may be temporary, but it is also indefinite. I've had clients go a year and a half. Prohibitively expensive and cumbersome? How about for the innocent defendant? Why does the State's half-assed approach (letting the guilty drive while suspending the innocent) to safe roads outweigh the innocent driver's need to drive?

Pringle, by the way, relies on cases involving a refusal to take the chemical test. One case it relies on is Mackey v. Montrym, 443 US 1 (1979), which states:

Nor is it any answer to the Commonwealth's interest in public safety that its interest could be served as well in other ways. The fact that the Commonwealth, for policy reasons of its own, elects not to summarily suspend those drivers who do take the breath-analysis test does not, as the District Court erroneously suggested, in any way undermine the Commonwealth's strong interest in summarily removing from the road those who refuse to take the test. A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings. Indeed, in many cases, the test results could lead to prompt release of the driver with no charge being made on the "drunken driving" issue. And, in exercising its police powers, the Commonwealth is not required by the Due Process Clause to adopt an "all or nothing" approach to the acute safety hazards posed by drunken drivers.

This still seems to me to be a procedural due process analysis. I wonder how it would fare under substantive due process. Perhaps we'll see.
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