Opinion
Docket No. CR-010896-23BX
08-02-2023
The People of the State of New York, v. Juan Carlos Tavarez, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (ADA Stacey Strand and ADA Dylan Flanders) For Defendant: The Bronx Defenders (Meg Tiley, Esq.)
Unpublished Opinion
For the People: Darcel D. Clark, District Attorney, Bronx County (ADA Stacey Strand and ADA Dylan Flanders)
For Defendant: The Bronx Defenders (Meg Tiley, Esq.)
MATTHEW V. GRIECO, J.
Defendant Juan Carlos Tavarez is charged by information with operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192[2] and [3]) and operating a motor vehicle while ability impaired (Vehicle and Traffic Law § 1192[1]). According to the information, on or about May 20, 2023, at about 4:00 a.m., a police officer observed Defendant make an illegal U-turn with a 2023 Honda CR-V, nearly striking another vehicle. The officer observed Defendant to have bloodshot, watery eyes, slurred speech, and a strong odor of alcohol on his breath. A chemical test indicated a blood alcohol content of.15 of one percent by weight.
Defendant was arraigned on May 21, 2023, at which time the court suspended his driver's license pending prosecution, pursuant to Vehicle and Traffic Law ("VTL") § 1193(2)(e)(7)(a), based on a blood alcohol content of.08 or more. The case was adjourned to June 2, 2023 for Defendant to make an application for a hardship privilege under VTL § 1193(2)(e)(7)(e), at which hearing Defendant testified and the parties presented documentary evidence. This decision is a written confirmation of the Court's oral decision rendered at the conclusion of the hearing.
Pertinent Hearing Testimony
Defendant testified that he owns his own business, which provides services regarding real estate, taxes, money transfers, and immigration. He lives in the Bronx, and although his company has a storefront in the Bronx, he described his car as his office, stating that he travels within the County and to Manhattan, Queens, and Westchester to meet with clients, show them properties, and go to banks to make deposits and withdrawals and buy money orders. He works Monday through Friday, 8:30 a.m. to 6:00 p.m., and Saturday by appointment. He has six employees, none of whom drives; none of his family members drives, and he related that all his friends have their own commitments.
He knew public transportation is available, but expressed concern because he often carries $10,000 to $30,000 of client funds. He did not know how much a taxi or Uber would cost, but assumed it was a lot, and he never inquired into a car service. He submitted documentary evidence of a bank loan and leases for his company and residence, and testified as to other business and personal expenses. According to Defendant, his business is losing money, and some deals were unable to be closed during the two weeks his license had been suspended; he denied the means to hire another employee as a driver. He specified his weekly salary, and stated that he spends at least $165 in gas per week for his car.
Discussion
Under New York's "prompt suspension law," a defendant's license must be suspended pending prosecution in certain circumstances, including where a chemical test reveals a blood alcohol content of.08 or more (VTL § 1193[2][e][7][a]; see Pringle v Wolfe, 88 N.Y.2d 426 [1996] ). The law is "[d]esigned to provide 'an efficient and effective means of balancing the need to maintain safe highways for the public and the rights of the criminal defendant'" (Pringle, 88 N.Y.2d at 429, quoting Mem of Div of Budget, Bill Jacket, L 1994, ch 312). In rejecting a constitutional due process challenge to the statute, the Court of Appeals noted not only the availability of a pre-suspension hearing (to determine facial sufficiency and reasonable cause under VTL § 1193[2][e][7][b]) and the limited duration of the suspension (pending disposition of the criminal proceeding, governed by the speedy trial mandates of CPL 30.30), but also the recourse to two avenues of potential partial relief: a hardship privilege under VTL § 1193(2)(e)(7)(e) and a conditional license under VTL §§ 1193(2)(e)(7)(d) and 1196(7) (Pringle, 88 N.Y.2d at 433).
More particularly, the court must find that the accusatory instrument is facially sufficient and that there is reasonable cause to believe that the driver operated a motor vehicle while having a blood alcohol content of.08 or more (VTL § 1193[2][e][7][b]; Pringle, 88 N.Y.2d at 430, 432).
A hardship privilege pursuant to VTL § 1193(2)(e)(7)(e) is very narrow. The court may permit the operation of a vehicle in three specified circumstances: "[1] to or from the licensee's employment, or [2] to or from necessary medical treatment for the licensee or a member of the licensee's household, or [3] if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee's school, college or university if such travel is necessary for the completion of the educational degree or certificate." Notably absent is operation of a vehicle as part of or a condition of employment (see People v Mallet, 34 Misc.3d 1216 [A] at *2 [Crim Ct, Kings County 2011]; People v Correa, 168 Misc.2d 309, 311 [Crim Ct, Richmond County 1996]), and the statute expressly adds that "[a] hardship privilege shall not be valid for the operation of a commercial motor vehicle" (VTL § 1193[2][e][7][e]).
To grant the privilege, the court must find "extreme hardship," which the statute defines as "the inability to obtain alternative means of travel" in one of the three specified situations; moreover, the "burden of proving extreme hardship shall be on the licensee," and "[a] finding of extreme hardship may not be based solely upon the testimony of the licensee" (VTL § 1193[2][e][7][e]).
An "inability" to obtain alternative means of travel is a high hurdle. Inconvenience is insufficient (see Correa, 168 Misc.2dat 311). Similarly, longer or more expensive modes of travel, unless prohibitive, would not qualify.
The restrictiveness of the VTL § 1193(2)(e)(7)(e) hardship privilege becomes more understandable when read in conjunction with the provisions for a conditional license (VTL §§ 1193[2][e][7][d] and 1196[7]), which a defendant can apply for 30 days after suspension. In contrast to the three scenarios delineated in the hardship privilege, a conditional license permits operation of a vehicle:
(1) enroute to and from the holder's place of employment, (2) if the holder's employment requires the operation of a motor vehicle then during the hours thereof, (3) enroute to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program and at which his attendance is required, (4) enroute to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training, (5) to or from court ordered probation activities, (6) to and from a motor vehicle office for the transaction of business relating to such license or program, (7) for a three hour consecutive daytime period, chosen by the administrators of the program, on a day during which the participant is not engaged in usual employment or vocation, (8) enroute to and from a medical examination or treatment as part of a necessary medical treatment for such participant or member of the participant's household, as evidenced by a written statement to that effect from a licensed medical practitioner, and (9) enroute to and from a place, including a school, at which a child or children of the holder are cared for on a regular basis and which is necessary for the holder to maintain such holder's employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training [VTL § 1196(7)(a)].
Although the hardship privilege is narrow, the court has discretion in determining whether the requirements have been met (see People v Criollo, 75 Misc.3d 1208 [A] at *2 [Crim Ct, Bronx County 2022]; People v Aharon, 58 Misc.3d 1223 [A] at *2 [Crim Ct, Kings County 2018]). Courts ruling on the matter have considered the broad factors set forth in People v Bridgman (163 Misc.2d 818 [City Court, City of Canandaigua 1995]) (see People v Criollo, 75 Misc.3d 1208 [A] [Crim Ct, Bronx County 2022]; People v Aharon, 58 Misc.3d 1223 [A] [Crim Ct, Kings County 2018]; People v Mallet, 34 Misc.3d 1216 [A] [Crim Ct, Kings County 2011]; People v Reick, 33 Misc.3d 774 [Crim Ct, NY County 2011]; see also People v DeRojas, 176 Misc.2d 887 [Dist Ct, Nassau County, 1998], revd on other grounds 180 Misc.2d 690 [App Term, 2d Dept 1999]) or some variation thereof (see People v Correa, 168 Misc.2d 309, 311 [Crim Ct, Richmond County 1996]).
The Bridgman factors are:
(1) the presence or absence of licensed persons present in the licensee's household; (2) the ability of other licensed household members to provide transportation for the licensee; (3) the occupation and health condition of the licensee; (4) the proximity of the licensee's place of employment, health care provider or school to his or her household; (5) the presence or absence of any public transportation or taxi service to or from the licensee's household to the place of employment, health care provider or school; (6) a consideration of the licensee's ability to afford public transportation or taxi service as an alternative means of transportation; (7) the presence or absence of co-workers, friends or family members who may assist in the licensee's transportation; and, (8) any other factor that the court deems appropriate to the determination.
Defendant here seeks a hardship privilege to drive to and from work. As noted, there is a brick and mortar presence, but he characterizes his car as his office, reflecting his travels to clients and financial institutions. Defendant relies on Reick, supra, which took an expansive interpretation of worksite, and Bridgman, supra. In Reick, the court found that the defendant had established an extreme hardship regarding his commute from his home in New Jersey to his work in Manhattan, and granted a hardship privilege "to drive to and from his place of employment, including sales calls" (33 Misc.3d at 776 [emphasis added]). The Bridgman court granted a hardship privilege to a laborer who resided in Geneva, New York, to travel to his assigned construction sites in surrounding counties, where public transportation and taxi services were either unavailable or beyond his financial means (163 Misc.2d at 820-821; see also DeRojas, 176 Misc.2d at 890 [recounting prior hearing granting a hardship privilege to an executive to travel to New York City and Long Island offices as well as medical appointments], revd on other grounds 180 Misc.2d 690 [App Term, 2d Dept 1999]).
Other courts have taken a more circumscribed view. For example, in Mallet (34 Misc.3d 1216[A]), the defendant testified that his employment as a signal maintainer for the MTA was contingent upon his having a driver's license, because his responsibilities required him to respond to emergency track situations throughout the five boroughs, bringing tools with him. The court held that "the defendant's job requirement is not one of the factors to be considered in making the determination as to whether defendant has established an extreme hardship within the statutory definition of 'extreme hardship'" (id. at *2).
Similarly, in Correa, the defendant, a firefighter, testified that, even though he did not operate any fire apparatus, he needed to drive from his home in Staten Island to other firehouses; he submitted a letter from a captain attesting that a driver's license was a requirement of the job. The court ruled:
"Extreme hardship" does not encompass within its definition inconvenience to the defendant or any consideration of whether the defendant is required, as a condition of employment, to operate vehicles as a properly licensed driver. The clear definition of extreme hardship could have easily been enlarged to exclude persons who are employed in positions which may require an emergency response. To interpret the language of this statute to preclude its application to firefighters would engraft a class exception which was not provided for by the Legislature.
If the Legislature had chosen, the grounds for a hardship privilege could have been broadened to include the criteria employed by the Commissioner of Motor Vehicles in granting conditional licenses to those qualified individuals who enroll in the Drunk Driving Program. (Vehicle and Traffic Law § 1196 [7].) Those criteria include the issuance of a conditional license to accommodate a licensee whose employment requires the operation of a motor vehicle. A defendant whose license has been suspended pending prosecution for 30 days apparently may apply for a conditional license pursuant to Vehicle and Traffic Law § 1196. (Vehicle and Traffic Law § 1193 [2] [e] [7] [d].) Thus, the Commissioner may be empowered to grant a conditional license to meet the requirement that the defendant have a license as a condition of his employment [ id. at 311].
The exact contours of the hardship privilege work travel provision need not be resolved here. Even if driving to multiple locations in a moving office were deemed "travel to and from the licensee's employment" within the statutory meaning, Defendant Tavarez did not meet his burden of establishing "an inability to obtain alternative means of travel" (VTL § 1193[2][e][7][e]). He was apprehensive of taking public transportation while carrying large sums of client money, but not all his commutes entail such portage. He was unaware of the cost of taxis or a car service. He claimed his company was operating on a slim margin or in the red, but offered no documentary evidence of revenue or unused borrowed funds, or details as to why he could not afford a temporary employee as a driver for the two weeks remaining until he could seek a conditional license from the DMV.
Accordingly, Defendant's motion is DENIED.
The foregoing constitutes the opinion, decision, and order of the Court.