Criminal Court of the City of New York, Bronx County, August 2, 2023

The Bronx Defenders (Brooke Edwards and Matthew Bruno of counsel) for defendant.

Darcel D. Clark, District Attorney (Ibrahim Haddad and Rashad Mujumder of counsel), for the People.

Defendant Rafael Gutierrez Cruz is charged by information with operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]) and operating a motor vehicle while ability impaired (Vehicle and Traffic Law § 1192 [1]). According to the information, on or about May 28, 2023, at about 6:00 a.m., a police officer observed defendant disregard three red traffic signals while operating a 2022 Audi sedan. The officer observed defendant to have watery eyes, slurred speech, and a strong odor of alcohol on his breath. Defendant allegedly told the officer that he had had "a few drinks." A chemical test indicated a blood alcohol content of .11 of one percent by weight.

Defendant was arraigned on May 29, 2023, at which time the court suspended his driver's license pending prosecution, pursuant to Vehicle and Traffic Law § 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 Vehicle and Traffic Law § 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 lives in the Bronx with his wife and three children, ages 2, 4, and 11. Prior to the suspension of his license, he would drive his wife to the high school where she works, his youngest child to day care, and the two other children to their schools, and then pick them all up at the end of the day. During the week between his license suspension and the hardship hearing, his wife drove herself and the children, with the exception that a friend picked up the youngest{**80 Misc 3d at 673} from day care. Defendant stated that under that routine, his wife arrives at work late, and although she had permission from her employer, she could lose her job if it continued. No other relatives lived in New York, and he had only asked the friend to pick up the toddler from day care that one week; he had not inquired of any other friends. He believed that taking [*2]the three children by public transportation would take too long, and he submitted evidence of bus routes and schedules. He also submitted evidence regarding taxi fares from the home to the schools and day care, which he asserted would be too expensive. He works part-time delivering for Uber Eats by bike and as a disc jockey; he averred that his wife has only modest savings and he none.

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 (Vehicle and Traffic Law § 1193 [2] [e] [7] [a]; see Pringle v Wolfe, 88 NY2d 426 [1996]).^[FN*] 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 NY2d 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 Vehicle and Traffic Law § 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 Vehicle and Traffic Law § 1193 (2) (e) (7) (e) and a conditional license under Vehicle and Traffic Law §§ 1193 (2) (e) (7) (d) and 1196 (7) (Pringle, 88 NY2d at 433).

A hardship privilege pursuant to Vehicle and Traffic Law § 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{**80 Misc 3d at 674} 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." (Vehicle and Traffic Law § 1193 [2] [e] [7] [e].)

Notably absent is operation of a vehicle as part of or a condition of employment (see People v Mallet, 34 Misc 3d 1216[A], 2011 NY Slip Op 52482[U], *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" (Vehicle and Traffic Law § 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" (Vehicle and Traffic Law § 1193 [2] [e] [7] [e]).

An "inability" to obtain alternative means of travel is a high hurdle. Inconvenience is insufficient (see Correa, 168 Misc 2d at 311). Similarly, longer or more expensive modes of travel, unless prohibitive, would not qualify.

The restrictiveness of the Vehicle and Traffic Law § 1193 (2) (e) (7) (e) hardship privilege becomes more understandable when read in conjunction with the provisions for a conditional license (Vehicle [*3]and Traffic Law §§ 1193 [2] [e] [7] [d]; 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{**80 Misc 3d at 675} 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" (Vehicle and Traffic Law § 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], 2022 NY Slip Op 50419[U], *2 [Crim Ct, Bronx County 2022]; People v Aharon, 58 Misc 3d 1223[A], 2018 NY Slip Op 50231[U], *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 [Canandaigua City Ct 1995]; see People v Criollo, 75 Misc 3d 1208[A], 2022 NY Slip Op 50419[U] [Crim Ct, Bronx County 2022]; People v Aharon, 58 Misc 3d 1223[A], 2018 NY Slip Op 50231[U] [Crim Ct, Kings County 2018]; People v Mallet, 34 Misc 3d 1216[A], 2011 NY Slip Op 52482[U] [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 [Nassau Dist Ct, 1st Dist 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{**80 Misc 3d at 676} 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." (People v Bridgman, 163 Misc 2d at 820.)

Defendant here seeks a hardship privilege to drive his children to and from school and [*4]day care. Of the three statutory scenarios, however, driving a defendant's family member is only contemplated for travel to and from necessary medical treatment; travel to and from employment and school is confined to the defendant him- or herself, in that Vehicle and Traffic Law § 1193 (2) (e) (7) (e) permits a hardship privilege:

"[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" (emphasis added).

The legislature's allowance for family members in one category and not the others in the three enumerated in Vehicle and Traffic Law § 1193 (2) (e) (7) (e) for a hardship privilege must be deemed intentional, particularly considering the express inclusion in Vehicle and Traffic Law § 1196 (7) (a) of a conditional license for travel

"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" (see People v Williams, 66 NY2d 659, 660 [1985] [presence of provision in one section of Vehicle and Traffic Law but not another showed the legislature knew how to{**80 Misc 3d at 677} include it when intended]).

Accordingly, defendant is not eligible for a hardship privilege.

In addition, key aspects of defendant's application were based solely on his testimony, which is insufficient, and compels denial on that basis as well (Vehicle and Traffic Law § 1193 [2] [e] [7] [e]; Criollo, 75 Misc 3d 1208[A], 2022 NY Slip Op 50419[U]). In particular, there was no corroboration of his assertion that his wife's employer would not give her continued permission, for the next three weeks until defendant could apply to DMV for a conditional license, to arrive late if she drove the children and that she would be fired. He also offered no documentary support regarding his wife's apparently separate finances.

On the merits, defendant failed to meet his burden. Even crediting his contention that public transportation would take him too long to bring the children back and forth from school and day care, and that the wife could not continue to do so, and that taxi or similar services would be too expensive, he conceded that he had never explored the possibility of somehow splitting up the responsibility, by having his wife drive one or two of the children and him take the other(s) by public transportation, or by asking friends; he admitted that he had only asked one friend to take one child one direction for one week.

Accordingly, defendant's motion is denied.