Defendant was also sentenced for driving while intoxicated

The defendant man operated a motor vehicle upon a public highway while knowing or having reason to know that his license or privilege of operating a motor vehicle in this state or his privilege of obtaining a license issued by the commissioner was suspended or revoked, and the suspension or revocation was based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the Vehicle and Traffic Law, and the defendant was operating the motor vehicle while under the influence of alcohol or drugs in violation of the Vehicle and Traffic Law.

Essentially, the defendant contends that the above emphasized portion of the second count’s factual allegations violates both the letter and spirit of Criminal Procedure Law (CPL 200.60), as interpreted by the Court of Appeals. More specifically, the defendant argues that, by this language, the jury at trial will have knowledge that the Defendant has a prior DWI arrest, in the very least, because of his refusal to submit to a chemical test. This, the defendant argues, is blatantly unfair, unquestionably prejudicial and precisely the evil CPL 200.60 was designed to outlaw. Further, by the defendant’s reckoning, the relatively recent Court of Appeals decision is expansive enough to encompass this defendant’s alleged refusal to take a chemical test as one of several conviction-related facts. Therefore, the defendant suggests, the People’s failure to include the allegedly offending phrase in the special information previously filed herein renders the indictment count legally defective and subject to dismissal. Finally, the defendant argues that presenting evidence of the defendant’s alleged refusal to take a chemical test to the Grand Jury at the same time as the panel was considering the other evidence and facts of this case created a prejudice which rendered the entire proceeding defective, thus warranting a dismissal of the second count if not the entire indictment.

The People, through the affirmation of Assistant District Attorney vigorously oppose the defendant’s motion. Fundamentally, the People’s position is that the special information procedure adopted by CPL 200.60, even as expansively interpreted by the Court of Appeals applies only to a particular defendant’s prior convictions and to those circumstances used as enhancing elements which are directly related to or result from the fact of such previous convictions. The People assert that the alleged license revocation at issue here is not conviction related, but rather is a revocation based upon an administrative proceeding involving the Commissioner of Motor Vehicles, which revocation would remain in effect regardless of whether or not the defendant was ultimately convicted. A defendant is not entitled to plead to special information regarding an administrative proceeding. A defendant is only afforded the protection of CPL for DUI conviction related facts and not for administrative ruling not founded upon that conviction. Thus, the People argue, indictment count 2 is not defective; there has been no violation of CPL 200.60.

In the alternative, the People move to amend indictment count 2 and the special information previously filed herein, essentially seeking to move the allegedly offensive factual allegation from the indictment to the special information.

The court has reviewed and considered the defendant’s notice of motion and the affirmation in support thereof; the affirmation in opposition and cross motion by Assistant District Attorney; and the defendant’s reply affirmation. Based upon that review and consideration, the court finds by its plain terms, section 200.60 of the Criminal Procedure Law establishes a special information procedure to be utilized where the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter. The Court of Appeals extended the reach of the section to cover those situations where the enhancing element of the higher grade offense is not the prior conviction itself, but rather a fact related to the prior conviction. The Court of Appeals clearly expresses its view that the statute is intended to be protective, by providing a defendant with an opportunity to shield himself from the likelihood of prejudice resulting from a trial jury’s knowledge that the defendant is a repeat offender, a likelihood which limiting instructions cannot be relied upon to eliminate. Moreover, the court expressed its further view that, in any given set of factual circumstances, the practical operation of the statute’s procedural mandates must give effect to the statute’s protective purpose. DWAI could be charged.

In the instant matter, it appears that the defendant was sentenced for driving while ability impaired, relating to an incident occurring on October 2, 1988. The defendant’s license and/or privileges were suspended due to this conviction. On that same date, the defendant was also sentenced for driving while intoxicated for an incident occurring on April 2, 1989. The defendant’s license and/or privileges were revoked due to this conviction. However, prior to the October 2, 1989 imposition of those sentences, on April 17, 1989, the defendant’s license and/or privileges were also administratively revoked for his refusal to submit to a chemical test of his breath relative to the incident which had occurred on April 2, 1989, one of the drunk driving incidents for which the defendant was ultimately convicted and sentenced on October 2, 1989.

Based upon this factual scenario, it appears to the court that the particular revocation at issue here should be deemed to be a conviction-related fact. Although the particular revocation did not eventuate as a direct result of the defendant’s conviction, it certainly did arise out of an incident for which the defendant was ultimately convicted. Certain distinctions which might validly be drawn between judicial and administrative revocations and/or suspensions are neither apposite nor dispositive here given the particular factual circumstances of this case. Moreover, a defendant’s refusal to submit to a chemical test creates an inference and is demonstrative of a consciousness of guilt on the defendant’s part. It appears to the court that it is to this type of inherent inferential prejudice that CPL 200.60, as interpreted by the Court of Appeals is addressed.

Based upon the foregoing, the court concludes that the conviction-related facts pertaining to the administrative revocation of the defendant’s license should properly have been charged in the special information previously filed herein.

However, in this case, the appropriate remedy for the People’s failure to have done so is not a dismissal of either count 2 or the entire indictment. The procedural protection provided by CPL 200.60 is intended to afford a defendant an opportunity outside the trial jury’s presence the element that raised his crime in grade. The special information procedure is intended only to afford a defendant the option to keep the trial jury from hearing about earlier convictions and conviction-related facts, an option the Legislature obviously believed promoted a fair trial. Here, the defendant has not yet been arraigned upon the special information in its present form nor has a trial jury been empanelled to consider his case. To permit the amendment of the instant indictment and the special information herein in order to afford the DUI defendant his opportunity to prevent the trial jury from hearing and considering evidence on the factual allegation he finds offensive would not either adversely impact the defendant’s trial preparation nor change the theory of the prosecution’s case.

In a proper case, there is no infirmity in the prosecutor’s later amendment of the special information, transferring from the indictment to the special information all facts to be established through proof of the prior conviction. In this case, amendment and not dismissal is clearly the appropriate remedy.

Finally, there is no basis for dismissing the DWAI indictment herein. As previously determined by the court, the evidence presented to the Grand Jury was legally sufficient to support both counts of the instant indictment. Moreover, the evidence presented to the panel was not so prejudicial as to impair the integrity of either the Grand Jury proceeding or its findings.

Based upon the foregoing, the defendant’s application to dismiss the second count of the instant indictment is denied. The People’s cross motion to amend the second count of the indictment and further to amend the special information herein, so as to transfer from the indictment to the special information the factual references to the defendant’s license having been suspended or revoked on April 17, 1989 based upon his refusal to submit to a chemical test is granted. The defendant’s further application to dismiss the entire indictment for want of legally sufficient evidence, based upon the alleged presentation of prejudicial matter to the Grand Jury thereby impairing the integrity of the Grand Jury’s proceedings, is in all respects denied.

When we are behind the wheel, we are responsible for the life of the people in the vehicle as well as the lives of the people that we encounter on the way to our destination. If you are a victim of DWI and you are contemplating on pursuing a legal action, the best persons to approach are the Nassau County DWI Defense Lawyer or the Nassau County Drunk Driving Attorney from Stephen Bilkis and Associ