Ventura, Application of

• Decision Date: 10 March 1981
• Citation: 437 N.Y.S.2d 538,108 Misc.2d 281
• Parties: In the Matter of the Application of Stephen G. VENTURA for an Order Reinstating Petitioner's License and for an Order Staying any Further Proceedings by the Department of Motor Vehicles.
• Court: New York Supreme Court

Page 538

437 N.Y.S.2d 538

108 Misc.2d 281

In the Matter of the Application of Stephen G. VENTURA for

an Order Reinstating Petitioner's License and for

an Order Staying any Further Proceedings

by the Department of Motor Vehicles.

Supreme Court, Monroe County.

March 10, 1981.

Gerard A. Mitrano, Brophy, Mitrano & Platania, Rochester, for petitioner.

Dale S. Engle, New York State Dept. of Law, Rochester, for Dept. of Motor Vehicles.

DECISION

ROBERT H. WAGNER, Justice.

The question presented for determination is whether subdivision 2 of section 1194 of the New York State Vehicle and Traffic Law which mandates suspension of a driver's license prior to a revocation hearing because of the driver's refusal to submit to a chemical test upon arrest for driving while intoxicated is void on its face as violative of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 1, section 6, of the New York State Constitution.

Section 1194 of the Vehicle and Traffic Law provides in relevant part as follows:

" § 1194. Chemical tests

1. Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic or drug content of his blood provided that such test is administered at the direction of a police officer:

(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two and within two hours after such person has been placed under arrest for any such violation, or

(2) within two hours after a breath test, as provided in section eleven hundred ninety-three-a of this chapter, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which he is a member.

2. (Effective Jan. 1, 1981. See also subd. 2 above.) If such person having been placed under arrest or after a breath test indicates the presence of alcohol in his system and having thereafter been requested to submit to such chemical test and having been informed that his license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked for refusal to submit to such chemical test, refuses to submit to such chemical test, the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made. Such report may be verified by having the report sworn to, or by affixing to such report a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report. The report of the police officer shall state that he had reasonable grounds to believe such arrested person to have been driving in violation of any subdivision of section eleven hundred ninety-two of this chapter and that said person had refused to submit to such chemical test. The report shall be presented to the court upon the arraignment of the arrested person. The license or permit to drive and any non-resident operating privilege shall upon the basis of such written report be temporarily suspended by the court without notice pending the determination of a hearing as provided in subdivision three of this section. Copies of such report shall be forwarded by the court, within forty-eight hours, to the commissioner. The court shall provide such person with a scheduled hearing date, a waiver form, and such other information as may be required by the commissioner. If a hearing, as provided for in subdivision three of this section, is waived by such person, the commissioner shall immediately revoke the license, permit, or non-resident operating privilege retroactive to the date of refusal to submit to such chemical test in accordance with the provisions of subdivision two, six and seven of section five hundred ten of this chapter.

3. (Effective Jan. 1, 1981. See also subd. 3 above.) a. Any person whose license or permit to drive or any non-resident driving privilege has been suspended pending revocation pursuant to the terms of subdivision two of this section is entitled to a hearing in accordance with a hearing schedule to be promulgated by the commissioner but no later than fifteen days after the date of the refusal to submit to a chemical test as required by this section. If the department fails to provide for such hearing within the time prescribed herein, the license, permit to drive or non-resident operating privilege of such person shall be reinstated pending a hearing pursuant to this section. The hearing shall be limited to the following issues: (1) did the police officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of section eleven hundred ninety-two of this chapter; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test would result in the immediate suspension and subsequent revocation of his license or operating privilege whether or not he is found guilty of the charge for which he was arrested; and (4) did such person refuse to submit to such chemical test. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds on any one of said issues in the negative, he shall immediately reinstate such license or permit to drive or any non-resident operating privilege subject to any existing restrictions, revocation, or suspension of such license or permit to drive or any non-resident operating privilege under this chapter. If, after such hearing, the hearing officer, acting on behalf of the commissioner finds all of the issues in the affirmative, he shall immediately revoke the license or permit to drive or any non-resident operating privilege retroactive to the date of the refusal to submit to a chemical test in accordance with the provisions of subdivision two, six and seven of section five hundred ten of this chapter. A person who has had his license or permit to drive or non-resident operating privilege suspended or revoked pursuant to this subdivision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of this chapter. Any person may waive his right to a hearing under this section. Failure by such person to appear for his scheduled hearing shall constitute a waiver of such hearing, provided, however, that such person may petition the commissioner for a new hearing which shall be held as soon as practicable.

b. Any person whose license, permit to drive, or any non-resident operating privilege is revoked pursuant to the provisions of this section shall also be liable for a civil penalty in the amount of one hundred dollars. No new driver's license or permit shall be issued, or non-resident operating privilege restored to such person unless such penalty has been paid. All penalties collected by the department pursuant to the provisions of this section shall be the property of the state and shall be paid into the general fund of the state treasury.

c. The commissioner shall promulgate such rules and regulations as may be necessary to effectuate the provisions of subdivisions one, two and three of this section."

On January 4, 1981, while driving an automobile in the City of Rochester, New York, Stephen A. Ventura received a summons for passing a red light, driving without insurance and driving while intoxicated. In his official report the Rochester police officer wrote that upon stopping Ventura for a traffic violation, he observed that Ventura emitted a strong odor of alcohol, had red and bloodshot eyes, broken, hesitant and slurred speech and was swaying and staggering upon exiting the automobile. The report states that after Ventura was arrested and given the warning that refusal to submit to a chemical test would result in immediate suspension and subsequent revocation of his license, Ventura refused to submit to a chemical test. As mandated by statute, the arresting officer's completed report was submitted to City Court Judge Charles T. Maloy and on Ventura's arraignment on January 5, 1981, Judge Maloy immediately suspended Ventura's driver's license. Ventura was informed that a revocation hearing was scheduled before the New York State Department of Motor Vehicles on January 15, 1981.

On January 14, 1981 Ventura obtained an order to show cause why an order should not be made reinstating his driver's license and staying any further proceedings by the Department of Motor Vehicles until a final determination on this motion.

Ventura seeks a judgment declaring that insofar as subdivision 2 of section 1194 of the Vehicle and Traffic Law provides for an immediate suspension of a driver's license for refusal to submit to a chemical test before a hearing, it is unconstitutional on its face because it violates the basic constitutional requirements of notice and opportunity to be heard. ¹ Thus, the sole issue presented is whether due process requires that a hearing be held prior to the suspension of a driver's license. ²

The appropriate procedure here is to convert the article 78 proceeding to a declaratory judgment action and then proceed to the constitutional issue (Horodner v. Fisher, 38 N.Y.2d 680, 382 N.Y.S.2d 28, 345 N.E.2d 571; Harding v. Melton, 67 A.D.2d 242, 245, 415 N.Y.S.2d 286, affd. 49 N.Y.2d 739, 426 N.Y.S.2d 270, 402 N.E.2d 1171). It should be noted at the outset that there exists a strong presumption of constitutionality favoring a statute and petitioner here has the burden of establishing unconstitutionality beyond a reasonable doubt (Nik-O-Lok Co. v. Carey, 52 A.D.2d 375, 384...