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DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL.

The Second Department determined the Department of Motor Vehicles’ finding that petitioner (driver) refused to submit to the chemical (blood alcohol) test after a vehicle stop must be annulled. Although the driver was warned that a refusal required the revocation of his license, he was not told that waiting for a return call from his attorney had been deemed a refusal by the arresting officer:

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A motorist under arrest based on an alleged violation of Vehicle and Traffic Law § 1192 may not condition his or her consent to a chemical test on first being permitted to consult with counsel … . Nonetheless, the consequences of refusing to accede to a chemical test may be imposed only if the motorist, after being adequately warned of those consequences, has refused to accede to the test (see Vehicle and Traffic Law § 1194[2][b], [f]). The adequacy of the warning is the same for the consequence imposed by Vehicle and Traffic Law § 1194(2)(b) (suspension and ultimate revocation of the motorist’s driver license) and the consequence imposed by Vehicle and Traffic Law § 1194(2)(f) (admissibility of evidence of refusal at a subsequent criminal trial) … . Here, the undisputed evidence at the hearing held pursuant to Vehicle and Traffic Law § 1194(2)(c) failed to establish that the petitioner was warned that his time for deliberation had expired and his further request to consult with counsel, which the police sought to accommodate, would be deemed a refusal to accede to the chemical test … . We emphasize that our determination is not based on any violation of any purported right to counsel … , but on the adequacy of the warnings that the request to consult with counsel would constitute a refusal to accede to the chemical test … . Matter of Lamb v Egan, 2017 NY Slip Op 03751, 2nd Dept 5-10-17

CRIMINAL LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/VEHICLE AND TRAFFIC LAW (DRIVING WHILE INTOXICATED, CHEMICAL TEST, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/DRIVING WHILE INTOXICATED (CHEMICAL TEST, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, REFUSAL, DRIVER WAS NOT SUFFICIENTLY WARNED OF THE CONSEQUENCES OF WAITING FOR A RETURN CALL FROM HIS ATTORNEY CONCERNING WHETHER HE SHOULD SUBMIT TO A BLOOD ALCOHOL TEST, ARRESTING OFFICER DEEMED THE CIRCUMSTANCES TO CONSTITUTE A REFUSAL)

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DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the Appellate Division, determined the regulations promulgated by the Commissioner of the Department of Motor Vehicles (DMV) and the application of those regulations to the petitioners were lawful. Petitioners challenged certain DMV regulations pursuant to which their applications for driver’s licenses, which had been revoked for Driving While Intoxicated offenses, were denied. Applying the Boreali criteria, the court found the Commissioner did not exceed her rule-making powers. The court further found the regulations did not conflict with the relevant statutes and there was a rational basis for the Commissioner’s denial of the license applications:

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The amendments at issue in these appeals (the Regulations) were adopted as emergency regulations in September 2012 and took effect immediately. In relevant part, the Regulations provide that, “[u]pon receipt of a person’s application for relicensing, the Commissioner shall conduct a lifetime review of such person’s driving record” (15 NYCRR 136.5 [b]). The Commissioner “shall deny the application” if “the record review shows that”: (1) the applicant has “five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime,” (15 NYCRR 136.5 [b] [1]) or (2) within a “25 year look back period,” the applicant “has three or four alcohol- or drug-related driving convictions or incidents in any combination” and “one or more serious driving offense” (15 NYCRR 136.5 [b] [2]). A “serious driving offense” includes: (i) “a fatal accident”; (ii) “a driving-related Penal Law conviction”; (iii) “conviction of two or more violations for which five or more points are assessed” on the applicant’s driving record; or (iv) “20 or more points from any violations” (15 NYCRR 136.5 [a] [2]).

For applicants with “three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period,” the Regulations provide that the Commissioner “shall deny the application for at least five years” in addition to the minimum statutory revocation period (15 NYCRR 136.5 [b] [3]). Following the expiration of this five-year waiting period, “the Commissioner may in his or her discretion approve the application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person’s license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period” (id.). An A2 restricted license is limited to operation to and from specified destinations — for instance, “the holder’s place of employment or education” (see 15 NYCRR 135.9 [b]; 15 NYCRR 3.2 [c] [4]).

The Commissioner is expressly permitted to “deviate from the general policy” set forth in the Regulations “in the exercise of discretionary authority granted” under the VTL (15 NYCRR 136.5 [d]). Specifically, the Commissioner may approve a relicensing application based on a showing of “unusual, extenuating and compelling circumstances,” in which case “the applicant may be issued a license or permit with a problem driver restriction . . . and may be required to install an ignition interlock device” (id.). Matter of Acevedo v New York State Dept. of Motor Vehs., 2017 NY Slip Op 03690, CtApp 5-9-17

 

VEHICLE AND TRAFFIC LAW (DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/DRIVING WHILE INTOXICATED (LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/DRIVE’S LICENSES (LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/ADMINISTRATIVE LAW (DEPARTMENT OF MOTOR VEHICLES, DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/MOTOR VEHICLES, DEPARTMENT OF  (DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/BOREALI CRITERIA (ADMINISTRATIVE LAW, DEPARTMENT OF MOTOR VEHICLES, DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)

NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED.

The Second Department determined plaintiff Audi dealership’s suit claiming that the award of a new Audi dealership constituted a modification of the franchise in violation of the Dealer Act (Vehicle and Traffic Law 463 (2)) was properly dismissed. Plaintiff acknowledged that the new dealership was outside plaintiff’s market area:

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Here, the plaintiff does not dispute that the location of the proposed new Westbury dealership is outside the plaintiff’s “relevant market area,” and thus, the plaintiff cannot challenge the addition of that dealership under Vehicle and Traffic Law § 463(2)(cc). As a result, the plaintiff seeks to challenge the proposed addition of the new dealership under Vehicle and Traffic Law § 463(2)(ff), which provides that a franchisor must give notice to the dealer of any “modification” to the dealer’s franchise … . However, permitting the plaintiff to challenge the addition of the Westbury dealership under Vehicle and Traffic Law § 463(2)(ff) would essentially render the standing requirement and specific procedures set forth in Vehicle and Traffic Law § 463(2)(cc) superfluous … . As such, the Supreme Court properly determined that Vehicle and Traffic Law § 463(2)(cc) is the sole mechanism under the Dealer Act by which the plaintiff can challenge Audi’s addition of the proposed new Westbury dealership, and properly directed the dismissal of the first cause of action.  JJM Sunrise Automotive, LLC v Volkswagen Group of Am., Inc., 2017 NY Slip Op 03160, 2nd Dept 4-26-17

VEHICLE AND TRAFFIC LAW (DEALER ACT) (NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED)/DEALER ACT (VEHICLE AND TRAFFIC LAW, NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED)/AUTO DEALERSHIPS (VEHICLE AND TRAFFIC LAW, NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED)

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UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA.

The Fourth Department, in a full-fledged opinion by Justice Centra, determined defendant General Motors (GM) did not violate the Dealer Act (Vehicle and Traffic Law 463(2)(ff)(1)) by failing to notify plaintiff Chevrolet dealership of GM’s approval of the relocation of another Chevrolet dealership to an area about four miles from plaintiff’s dealership. The opinion focuses on statutory interpretation principles, the terms of the plaintiff’s dealership agreement with GM, and the application of federal and Michigan law:

We reject plaintiff’s contention that GM’s approval of Sharon’s relocation request ipso facto results in a modification of plaintiff’s franchise for which notice may be required under section 463 (2) (ff) (1). To construe section 463 (2) (ff) (1) to require notice to a dealer when a franchisor approves a relocation request of another dealer would essentially render section 463 (2) (cc) (1), which requires notice to certain dealers of relocations of other dealers, superfluous. It is well settled that “[a] court must consider a statute as a whole, reading and construing all parts of an act together to determine legislative intent . . . , and, where possible, should harmonize[] [all parts of a statute] with each other . . . and [give] effect and meaning . . . to the entire statute and every part and word thereof’ “… . Courts should construe a statute “to avoid rendering any of its language superfluous” … . Van Wie Chevrolet, Inc. v General Motors, LLC, 2016 NY Slip Op 06583, 4th Dept 10-7-16

VEHICLE AND TRAFFIC LAW (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)/DEALER ACT (DEALER ACT, UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA)

FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion, determined General Motors’ [GM’s] failure to take into account consumer-preference in determining an auto-dealer’s [franchisee’s] performance violated the Dealer Act. The court further determined that GM’s changes to the geographic area in which plaintiff-dealer’s sales performance is measured did not violate the act:

… [O]nce GM determined that statewide raw data must be adjusted to account for customer preference as a measure of dealer sales performance, GM’s exclusion of local brand popularity or import bias rendered the standard unreasonable and unfair because these preference factors constitute market challenges that impact a dealer’s sales performance differently across the state. It is unlawful under section 463 (2) (gg) to measure a dealer’s sales performance by a standard that fails to consider the desirability of the Chevrolet brand itself as a measure of a dealer’s effort and sales ability. * * *

… [A] revision of the [geographic area] is not perforce violative of section 463 (2) (ff). Rather, such change must be assessed on a case-by-case basis, upon consideration of the impact of the revision on a dealer’s position. Beck Chevrolet Co., Inc. v General Motors LLC, 2016 NY Slip Op 03412, CtApp 5-3-16

 

FRANCHISED MOTOR VEHICLE DEALER ACT (FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/DEALER ACT (FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/CAR SALES (DEALER ACT, FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/AUTO SALES (DEALER ACT, FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/VEHICLE AND TRAFFIC LAW (DEALER ACT, FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)

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CITY IS NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN AN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING A POLICE VAN.

The First Department, reversing Supreme Court, determined the city’s motion for summary judgment in this car-accident case should have been granted. Plaintiff was struck by a police van driven by an unlicensed car-wash attendant. The city was not liable for negligently entrusting the vehicle to the unlicensed driver because, inter alia, there was no duty to make sure the attendant had a license before handing over the keys to him. In addition, the city was not vicariously liable as the owner of the van pursuant to Vehicle and Traffic Law 388. Police vehicles are statutorily exempt from such liability. Plaintiff argued that the exemption did not apply because the van was not being “operated” by the police department at the time of the accident. The First Department held that “operated” in this context means “to exercise power over,” and not “driven:”

 

Plaintiff’s argument that the NYPD traffic van does not qualify as a “police vehicle,” because it was not being “operated by the police department” at the time of the accident, but, rather, was being “operated” by the car wash attendant, assumes that the term “operated” means “to cause to function” (Merriam- Webster Online Dictionary, http://beta.merriam-webster.com/dictionary/operate [accessed Jan. 27, 2016]) or is a substitute for the word “driven.” This ignores the common use of the term “operated” as an intransitive verb meaning “to exert power or influence” (id.). Under plaintiff’s interpretation, a police vehicle would not qualify as such under Vehicle and Traffic Law § 132-a, unless it was being driven by “the police department,” which strains common sense, since a police department cannot be the driver of a vehicle.

More importantly, plaintiff’s interpretation would strip the exemption provided to police vehicles in Vehicle and Traffic Law § 388(2) of its force and effect. Vehicle and Traffic Law § 388 specifically contemplates that someone, other than the vehicle’s owner, is driving the vehicle when an injury occurs. If “police vehicles” are only exempted when an owner or owner equivalent is driving, there would be no need for the exemption in Vehicle and Traffic Law § 388(2). This interpretation is untenable as it would render the police vehicle exemption in Vehicle and Traffic Law § 388(2) meaningless … . Guevara v Ortega, 2016 NY Slip Op 01106, 1st Dept 2-16-16

 

NEGLIGENCE (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/MUNICIPAL LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)/VEHICLE AND TRAFFIC LAW (CITY NOT LIABLE FOR ACCIDENT WHICH OCCURRED WHEN UNLICENSED CAR-WASH ATTENDANT WAS DRIVING POLICE VAN)

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QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY.

The Second Department, reversing Supreme Court, determined decedent’s representative had raised a question of fact whether the driver of a city dump truck was negligent. Decedent was a passenger in a car which struck the back of the dump struck which was either stopped or coming to a stop in the left lane of the highway. Although the driver of the truck testified a tire had just blown, causing the truck to veer to the left, the truck was still moving when struck, and the emergency flashing lights were on, the sole eyewitness testified the truck was parked and its lights were not on:

 

The City made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that its truck was lawfully stopped on the highway due to an emergency (see Vehicle and Traffic Law § 1202[a][1][j]) when it was struck in the rear by the Cadena vehicle. However, in opposition, viewing the evidence in the light most favorable to the plaintiff, affording him the benefit of every favorable inference …, and applying the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80) to hold him to a lesser standard of proof, the plaintiff raised a triable issue of fact as to whether the truck driver exercised reasonable care in warning other drivers of the hazard posed by his disabled vehicle. Generally, when one causes a public road to become obstructed, there is a duty to “exercise[ ] the care that a reasonably prudent person should have under all the circumstances” … . The exercise of reasonable care under the circumstances may include warning other motorists of the hazards posed by the obstruction … . Typically, whether reasonable care was exercised is a question of fact … .

The City’s truck driver testified at a deposition that the truck’s headlights were on, that after the blowout of the tire he activated the truck’s emergency lights, and that the accident occurred within seconds of veering into the left lane while he was still moving 10 to 15 miles per hour. However, the sole eyewitness to the accident, Weiguo Qu, indicated that he saw the truck “parked” in the left lane of a highway with its lights off and no flashing lights. In light of this conflicting evidence, triable issues of fact exist regarding, among other things, whether the City’s truck driver failed to exercise reasonable care to warn other motorists of the obstruction and, if so, whether such failure was a proximate cause of the accident… . Pinilla v City of New York, 2016 NY Slip Op 00953, 2nd Dept 2-10-16

EMINENT DOMAIN (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/LANDLORD-TENANT (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/TRADE FIXTURES (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)

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SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF PETITIONER’S DRIVER’S LICENSE FOR REFUSING TO SUBMIT TO A CHEMICAL BLOOD-ALCOHOL TEST; TROOPER DID NOT HAVE REASONABLE GROUNDS TO BELIEVE PETITIONER OPERATED HIS MOTORCYCLE UNDER THE INFLUENCE.

The Second Department annulled the determination by the Department of Motor Vehicles that petitioner’s license was properly revoked for refusing to submit to a chemical blood-alcohol test. Petitioner had an accident while riding his motorcycle which, he alleged, was caused by a coyote running into his bike. No other vehicles were involved. The trooper who charged petitioner with driving while intoxicated did not witness the accident or conduct any sobriety tests. The trooper based the charge solely on detecting the odor of alcohol on petitioner’s breath two hours after the accident at the hospital. The Second Department determined substantial evidence did not support the Department’s finding the trooper had reasonable grounds to believe petitioner was operating the motorcycle while under the influence:

 

As a prerequisite to the chemical test, the Trooper had to have reasonable grounds to believe that the petitioner was operating his motorcycle while under the influence of alcohol (see Vehicle Traffic Law § 1194[2]). Reasonable grounds are to be determined on the basis of the totality of the circumstances (see Vehicle and Traffic Law § 1194[2][a][3]). Here, the Trooper did not witness the circumstances leading to the accident or the accident itself, and his report states that no field sobriety tests were conducted at the scene. Other than the statement in the report that there was a strong odor of alcoholic beverage on the petitioner’s breath, there was no evidence that would suggest the petitioner operated his vehicle in an intoxicated state … . Accordingly, the totality of circumstances did not warrant the determination that the petitioner violated Vehicle and Traffic Law § 1194 by refusing to submit to a chemical test and to revoke the petitioner’s driver license. Matter of DeMichele v Department of Motor Vehs. of N.Y. State, 2016 NY Slip Op 00652, 2nd Dept 2-3-16

 

ADMINSTRATIVE LAW (VEHICLE AND TRAFFIC LAW, SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)/DRIVING WHILE INTOXICATED (SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)

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New Relicensing Regulations Can Be Applied Retroactively (Re: Alcohol-Related Driving Convictions)

The Fourth Department, reversing Supreme Court, determined the Commissioner of Motor Vehicles had the power to retroactively apply regulations re: the relicensing of persons with three or more alcohol-related driving convictions:

… [T]here is no merit to petitioner’s contention that the Commissioner erred in retroactively applying the amended regulations to his application … . “[P]etitioner’s driver’s license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by [the Commissioner] under her discretionary powers . . . Thus, [the Commissioner] remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner’s application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing— i.e., persons with three or more alcohol-related driving convictions” … . Matter of Underwood v Fiala, 2015 NY Slip Op 08545, 4th Dept 11-20-15

 

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Portable Breath Test Device (PBT) Results Should Not Have Been Admitted, Driving While Intoxicated Conviction Reversed

The Second Department reversed defendant’s driving while intoxicated (DWI) conviction because the results of the portable breath test device (PBT) were allowed in evidence in the People’s direct case:

Generally, the result of a PBT, such as an Alco-sensor, “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Contrary to the trial court’s determination, isolated remarks during defense counsel’s opening statement did not open the door for the People to introduce incriminating testimony about the PBT result as part of their case-in-chief, particularly in the absence of appropriate limiting instructions … . We note that the opening remarks at issue, regarding the officer discarding the PBT “cap,” were at least partly offered in support of the defense theory that the defendant was not aware that he was the subject of a lawful arrest on the night in question, which theory was offered to undermine the charges of assault in the second degree and resisting arrest. Further, we find that the People adequately responded to this remark by eliciting the officer’s testimony that he disposed of the plastic cap because it was unsanitary, and this was standard procedure. Nonetheless, the People elicited testimony that, according to the PBT, the defendant’s BAC was .128%, significantly higher than the legal limit of .08%, before defense counsel had an opportunity to raise this issue during cross-examination … . Under these circumstances, it cannot be said that the defendant opened the door for the People to adduce evidence of an insufficiently reliable PBT result in order to prove the defendant’s intoxication … .

Thereafter, the trial court did not provide the jury with any limiting instructions regarding the PBT result …, but instead directed the jury to consider the PBT result as direct proof of the defendant’s intoxication. The court told the jury that the PBT was a “generally accepted instrument in determining blood alcohol content,” and that no scientific expert was necessary. This was error … . Under the circumstances, including the lack of evidence of admissible field sobriety tests, we find that this error was not harmless beyond a reasonable doubt. People v Krut, 2015 NY Slip Op 08439, 2nd Dept 11-18-15

 

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