Wednesday, May 3, 2017

Ithaca DWI Lawyer: Using a DWI Pringle Hearing

I don't like these Pringles at all, gross!
A recent case where a lawyer asked for a Pringle DWI hearing was in Lake Placid, NY. The defendant was being arraigned for an Aggravated DWI. His BAC was .23, now that's pretty high, at almost 3x the legal limit. Way over .08 BAC the judge needs to take your license (suspension pending prosecution). The stop of the car was for a good reason (traffic violation) going over double yellow lines.

So why did the lawyer demand a Pringle hearing?

A Case of a Wasted or Unnecessary or Unwarranted Pringle Hearing?

Well let's break this New York DWI case down and see what really happened, thats why I read the criminal cases. They are great for falling asleep too. The case is Matter of Knight v. Lake Placid.

On June 18, 2016, a police officer stopped petitioner Charles Knight in the Village of Lake Placid, Essex County, after observing his vehicle cross a double yellow line.
So we start out with a driver with a traffic violation, there is definitely probable cause to stop Mr. Knight's car and investigate further.
Petitioner's blood alcohol level tested at .23%, and he was charged with the misdemeanors of driving while intoxicated and aggravated driving while intoxicated as well as the violation of failure to keep right.
Knight takes a breath test back at the police station and it reads .23, yikes. That's way over the .08 BAC necessary to suspend driving privileges pending prosecution of the DWI case.
After a June 30, 2016 appearance was adjourned at his attorney's request, petitioner was arraigned and pleaded not guilty to all charges on July 7, 2016. Because his license was subject to suspension pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7) (that's the prompt suspension pending prosecution law), a Pringle hearing (see Pringle v Wolfe, 88 NY2d 426 [1996], cert denied 519 US 1009 [1996]) was scheduled for July 21, 2016.
The attorney requested and the judge gave him a DWI Pringle hearing to contest the stop of the car, the paperwork, and the reliability of the breath test. Many judges don't even know how to do a Pringle or have ever done a Pringle and they even may not know why an attorney want's a Pringle hearing.
On that date, respondent William Hulshoff, a Justice of respondent Lake Placid Village Court, suspended petitioner's license and issued him a hardship license (see Vehicle and Traffic Law § 1193 [2] [e] [7] [e]). Petitioner commenced this CPLR article 78 proceeding seeking to vacate the suspension of his license.

What is a New York State Article 78 Proceeding?

For clarification when an Article 78 action is used as a legal proceeding against a judge, the allegations are that they acted improperly. Most of us lawyers take them very seriously.

Article 78 proceedings are for a request of relief. Relief from the higher court can be in many forms. The form of relief is provided in CPLR 7803 (3), which authorizes the (higher) court to make a finding as to whether a determination (in this case the suspension of driving privileges) of an administrative agency, public body or officer (the judge) was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. 

With this Article 78 the lawyer thought the judge acted improperly. 

The lawyer also thought that the judge's certified breath test was not in fact a certified breath test, btw they usually are. 

He also thought that arguing that his client was staying clean and sober with weekly alcohol testing somehow mitigated his being subject to the Suspension Pending Prosecution. Treatment programs are great for people but they do not stop administrative license suspensions. Staying clean and sober may have great weight with a DA or a Judge to soften DWI punishment and sentencing. But they do not negate the Suspension Pending Prosecution law. 

Suspension Pending Prosecution only requires two things: a breath or blood test over .08 BAC, and a reasonable stop of a car. See below for case colloquy between defense attorney and the judge.

At the beginning of the Pringle hearing, the defense attorney requested that the judge adjourn (delay) the hearing without date, and allow the defendant to submit weekly (blood/urine) samples establishing that he had tested negative for alcohol consumption. Notes are mine. The colloquy continued:

MR. defense: And we just submitted a sample that he is negative for alcohol this week. 
THE COURT: I understand that, but I also ran this by a number of people that I was at justice court training and I am strongly advised that I cannot do that. I have to suspend. 
MR. defense: Okay. I don't - - I still don't think the paperwork is appropriate. 
THE COURT: I think the paperwork is correct. It is certified. 
MR. defense: Okay. 
THE COURT: And I'll try to get it this weekend too. 
MR. defense: Well, I disagree. Please don't get mad at me. 
THE COURT: Okay. I'm not mad at you. I'm just - - I understand what you're trying to do for your client. Okay? But I also understand the predicament I'm in and what I'm required to do. 
MR. defense: Can I have proof - -. 
THE COURT: I have the big session - - yesterday was justice training. I have the big session on - -. 
MR. defense: Judge, I have proof that he's employed. We would ask for a hardship. 
THE COURT: I understand. I have no question about that. I have no problem with giving you a hardship license, but I very clearly question whether or not this is a certified copy and I was explained by several attorneys that it is 
MR. defense: Okay. Well, I disagree. It's not in CPLR form so that's my opinion, but [*3]we could take it up on another jurisdiction if we have to."

The judge said that he had learned the law about the Suspension Pending Prosecution at the judge (justice) training program. The defense lawyer argued that the judge was using ex-parte communication. The lawyer filed an Article 78 contesting the judge's suspension, and the judge's behavior in counseling (talking to) the judicial administrators.

In my next blog post I'll discussed when I've used a Pringle DWI hearing, and my reasons for requesting such a hearing.