New York Criminal Lawyer Blog
On December 7, 1988, the Court issued a subpoena duces tecum directing the New York State Police to produce a State Police Breath Test Operator’s Training Course Manual and specifically that edition which was used to train a Trooper who was first certified as a breathalyzer test operator on February 5, 1988 and who was the arresting officer in the criminal case referred to above which was a trial of the respondent on Driving While Intoxicated (DWI) charges.
The respondent, Superintendent of the Division of State Police, contends that the subpoena duces tecum may only be used to obtain material which is discoverable under Article 240 Criminal Procedure Law (CPL), but not possessed by the prosecutor, or which constitutes evidence, and that the manual in question is not evidence and not discoverable pursuant to CPL.
The Court cannot agree with the contentions of the petitioner. The manual in question is a specific set of instructions and procedures for the proper performance of chemical and psychophysical tests. It constitutes the most comprehensive evidence in regard to State Police procedure for the arrest and testing of DWI defendants. It is certainly direct evidence of both the procedures that should be followed as well as the consequences of not following those procedures. In the case at hand, the issue is whether the defendant was intoxicated, and the use of the subpoena duces tecum for the purpose of obtaining material evidence of that fact is proper, in the Court’s opinion. The defendant is entitled to access to the manual by the subpoena duces tecum for the purpose of proving what the proper procedures in testing were and that his accusers failed to follow those procedures, if that be the case.
In view of the foregoing, the motion to vacate the prior order of the Court which granted a subpoena duces tecum is denied.
In another DWI case, the issue presented is whether a court has the power to issue a hardship license to an out-of-state driver, whose privileges to drive in New York was suspended as a result of his DWI arrest. The Court holds that it does have the authority and power to issue the hardship license.
The defendant man, a license-holder from another State, was charged with driving while intoxicated (DWI), driving while intoxicated per se (DWI perse), and operating a motor vehicle while impaired. His license was suspended at the arraignment and he moves the court to grant a hardship privilege.
On September 23, 2011, the Court held a hardship hearing. The decision is a written confirmation of the oral decision issued that day.
While there are no published decisions dealing with the exact issue presented, there is some statutory precedent for out-of-state defendants being extended the same conditional driving privileges as a New York defendant. New York State Vehicle and Traffic Law provide that an out-of-state defendant may be issued a conditional privilege of operating a motor vehicle as long as the defendant participates in the Drunk Driving Program. No cocaine or marijuana were found.
However, this particular action is to be done at the discretion of the commissioner; the statute does not mention the court. Additionally, the term used throughout this part of the statute is holder of a license, not licensee. Thus, it does not directly answer any possible concerns about conditional privileges for licensees being extended to out-of-state residents who have not been granted licenses by New York State.
The Court of Appeals recognized that the possibility of hardship privilege was an important element of the Prompt Suspension Law. The Court stated that the severity of the license suspension is mitigated by its temporary duration, the availability of a conditional license and hardship relief, and the significant protection of a pre-suspension judicial hearing. Although the Court only spoke in terms of license suspension and not suspending operating privileges, it still appears probable that any invoking of the Prompt Suspension Law would, by extension, raise the possibility of hardship relief.
The third department has further held that the Prompt Suspension Law does apply to out-of state residents. Specifically, that court reasoned that, although the prompt suspension law does not specifically refer to an out-of-state licensee, in view of the comprehensive nature and remedial purpose of New York’s drunk driving statutory scheme, the prompt suspension law must be construed as authorizing a court to suspend the driving privileges of an out-of-state licensee under the same circumstances as would justify suspending a New York license. These same circumstances should incorporate the factors that moderate the severity of a suspension pending prosecution, as discussed in Pringle, namely the hardship privilege.
Accordingly, the Court holds that it has the jurisdiction and the power to issue a hardship privilege to an out-of-state license holder, if the defendant can prove an extreme hardship.
Administering alcohol and drug related test gives the person in-charge the power to either break or save the life of someone.
Mistakes should not be committed since it would make the test invalid. If you want to fight for a wrongful DWI charge against you, consult the New York City DWI Defense Lawyer or the NYC DUI Attorney. Stephen Bilkis and Associates can also provide you with the NY Drunk Driving Lawyer if the need for them arises.