New York Criminal Lawyer Blog
The first accused is charged with misdemeanor information with Vehicle and Traffic Law and the second accused is charged in separate misdemeanor information with Vehicle and Traffic Law. The issues raised by the defense counsel are identical in each case.
A New York Criminal Lawyer said that in each case, the accused is alleged to have had operated a motor vehicle while having a blood alcohol level in excess of .10 of 1%. In each case, the accused man’s driver’s license was suspended at arraignment because of the blood alcohol content. The defense counsel contends that the suspension procedure constitutes a penalty the accused moves for orders to dismiss each docket on double jeopardy grounds.
In a recent Law Journal article, it is evident that Vehicle and Traffic Law has been attacked on constitutional and due process grounds throughout the state with the majority of decisions holding the statute constitutionally infirm.
One of the major attacks provides that the suspension procedure at arraignment does not provide the accused with a meaningful opportunity to be heard thereby violating his due process rights. Another issue raised is that since the length of prosecutions for Vehicle and Traffic Law offenses varies throughout the state, the length of the license suspension will vary as well and all accused though similarly situated are not treated equally. Accordingly, the mandated suspension procedure violates equal protection of law. Furthermore, the mandatory suspension of a driver’s license constitutes a penalty, thus, to continue the prosecution where a penalty has already been imposed violates the double jeopardy protection. Finally, it is claimed in the attack that the suspension of a driver’s license is an administrative or executive act. Thus, for courts to engage in a judicial suspension procedure of a driver’s license is violation of the principles of separation of powers.
From the reported decisions in New York on the issue, it appears that in jurisdictions where Vehicle and Traffic Law has been attacked successfully by the defense counsel, the underlying violation on which the prosecution was commenced was either simplified traffic information or uniform traffic information. It is noteworthy since the critical documents by definition contain no factual allegations. The practice differs significantly from the practice in the Criminal Court of the City. It is the practice of the District Attorney’s Office to file a certified chemical test analysis showing the accused person’s blood alcohol content at arraignment and such report is available in the vast majority of Vehicle and Traffic Law prosecutions. The cases where a challenge has been interposed by the defense have involved a chemical test administered after two hours of the accused person’s arrest.
The primary issue is whether the mandatory suspension required by Vehicle and Traffic Law is remedial or punitive in nature. A Brooklyn Criminal Lawyer explained that if remedial, then there is no double jeopardy violation, if punitive, there is. A central theme emerges from the cases when the suspension of a driver’s license for DWI and DUI is designated to promote highway safety and to protect the public at large from injury. It is remedial in nature and not punitive. Accordingly, there is no double jeopardy to a Vehicle and Traffic Law prosecution where the accused person’s driver’s license was suspended at arraignment.
The right of the Judiciary to suspend and revoke an individual’s privilege to drive has been recognized for at least the last quarter century. Vehicle and Traffic Law creates no more of a judicial meddling, if any can be found, into the jurisdiction of the executive branch of the government that has existed for at least a period of time. For all the reasons stated, the statute is constitutional. Accordingly, the motion for orders dismissing each violation is denied.
Each person has varied tolerance on taking pain, problems, medications and even alcoholic beverages. It is the reason why medicine dosages are given based on one’s weight an age. For a DWI, sex cimes charge of theft charge, contact Stephen Bilkis and Associates for advice and guidance.