Defendant Byron Solano Criollo stands charged with operating a motor vehicle while under the influence of alcohol or drugs and related offenses. Pursuant to the vehicle and traffic law and under certain circumstances, a court may suspend a defendant's driving privileges pending prosecution. Defendants may seek an extreme hardship exception to that suspension to allow for travel to work or school, and a court may conduct a hearing and either grant or deny the exception.

At that hearing, commonly referred to as a "hardship hearing," a finding of extreme hardship may not be based solely upon the testimony of the defendant (Vehicle and Traffic Law § 1192 [2] [e] [7] [e]). In this case, the defendant testified at the hardship hearing, but offered no additional evidence in support of his application. As a result, defendant's application was denied. This decision is a written confirmation of the oral decision rendered at the conclusion of the hardship hearing.

On February 14, 2022, defendant was arraigned on an information charging him with operating a motor vehicle while intoxicated (Vehicle and Traffic Law §§ 1192 [2] and [3]) and operating a motor vehicle while impaired (Vehicle and Traffic Law § 1192[1]). The information alleges that on February 14, 2022, at 12:05 AM, in the vicinity of Willis Avenue and the Major Deegan Expressway, defendant was operating a 2008 red GMC Acadia, with a blood alcohol content of 0.118. The arraignment court suspended defendant's drivers' license pending prosecution pursuant to VTL § 1192 [2] [e] [7] [a], and the case was adjourned to February 18, 2022, for defendant to make an application for a hardship privilege.

On February 18, 2022, this court presided over an extreme hardship hearing. Defendant testified under oath at the hardship hearing and this court credits his uncorroborated testimony [*2](HH. p. 4).^[FN1] Defendant stated that he lives in Ridgefield Park, New Jersey, where he resides with his girlfriend (Id). He is the sole provider in the household (Id). Defendant is a self-employed electrician for approximately 15 years (Id). He works seven days a week and his hours vary depending on the number of job sites he reports to (Id). On any given day, defendant could report to up to five different job sites (Id). His job sites include driving to locations within the five boroughs and traveling to New Jersey and Connecticut (Id. at 6). Defendant's job requires him to transport several tools, including but not limited to, a six-foot ladder from job site to job site in order to complete repairs (Id). Defendant claimed he is unable to utilize public transportation because he must carry tools to work (Id). Defendant's girlfriend does not possess a driver's license (Id).

Following the defense's presentation of evidence, which consisted of only the defendant's testimony, and direct and cross examinations of the defendant, and then oral argument from the prosecution and the defense, defendant's application was orally denied.

Vehicle and Traffic Law § 1192 [2] [e] [7] [e] states in pertinent part that a court may grant a hardship privilege if the court finds that the suspension of a defendant's license will result in "extreme hardship." The statute explicitly defines an "extreme hardship" as the inability to obtain alternative means of travel to or from the licensee's employment, or to or from necessary medical treatment for the licensee or a member of the licensee's household, or to or from the licensees' school, college or university if such travel is necessary for the completion of an educational degree or certification (VTL § 1192 [2] [e] [7] [e]). The burden of proving "extreme hardship" is placed on the defendant (People v Correa, 168 Misc 2d 309, 311 [Crim Ct Richmond Co 1996]). The defendant may present material and relevant evidence at the hardship hearing; however, "a finding of extreme hardship may not be based solely upon the testimony of the defendant" (VTL § 1192 [2] [e] [7] [e]) (emphasis added).

A finding of "extreme hardship" is left to the discretion of the court. In determining whether a defendant has sustained the burden of proving an "extreme hardship," factors to consider include:

(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;

(5) the presence or absence of any public transportation or taxi service to or from the licensee's household to the place of employment;

(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.

A cursory review of caselaw discussing hardship hearings demonstrates that defendants routinely present documentary and other forms of evidence in seeking an extreme hardship exception to license suspension (see eg People v Correa, 168 Misc 2d 309, 310 [Crim Ct Richmond Co 1996] ("In support of his contentions, the defendant submitted a letter from Captain Francis Ritchie of Engine Company 74"); People v Aharon, 58 Misc 3d 1223(A) [Crim Ct Kings Co 2018] (defendant provided documentation from her employer as evidence of her employment); People v Mallet, 34 Misc 3d 1216(A) [Crim Ct Kings Co 2011] (defendant submitted an excerpted copy of the MTA rule and regulations, MTA notice of examination for signal maintainer, and requirements to be appointed)).

In the instant matter, defendant's testimony was the only evidence offered in support of his application for a hardship privilege. The defendant failed to provide any other material and relevant evidence in support of his application. As such, defendant did not meet the minimal statutory requirement needed to satisfy his burden. Accordingly, defendant's application for a hardship privilege is denied.

The foregoing constitutes the decision and order of the court.