This case presents an issue often confronted by the Court at arraignment when a Defendant is charged with a violation of VTL 1192(2) (Driving While Intoxicated) and the People seek a suspension of the Defendant's license pending prosecution because it is alleged that the Defendant has a blood alcohol content (hereinafter BAC) above .08% and the Defendant seeks a hardship privilege.

The Defendant was arrested on January 28, 2018 and charged with Driving While Intoxicated by Alcohol, in violation of VTL §§ 1192(2) & (3), Driving While Ability is Impaired by Alcohol, in violation of VTL § 1192(1), Reckless Driving in violation of VTL § 1212 and an Improper Left Turn in violation of VTL § 1160(b). The complaint in relevant part alleges that the Police Officer observed the Defendant make a left turn from the right lane and observed her to be exhibiting signs of intoxication: to wit slurred speech, red watery eyes, odor of alcohol beverage on breath and an unsteady gait. The Defendant submitted to a chemical test to determine the Defendant's blood alcohol concentration with a result of .087% alcohol content and the Defendant made an incriminating statement that she had one drink of Hennesy and Coke.

At arraignment on January 28, 2018, the People sought an immediate suspension of the Defendant's driver's license which was denied by the Court and the matter was adjourned to February 1, 2018 for the People to produce the certified Intoxilyzer results which the People did not have at arraignment. On February 1, 2018, the People produced the certified Intoxilyzer results showing that the Defendant had a BAC of .087% and requested an immediate suspension of the Defendant's driver's license. The Defendant requested a hardship privilege to drive to and from work. The Court held a hearing on that day and for the reasons set forth herein granted the hardship privilege.

The Court of Appeals has noted that “in an effort to reduce the incidence of drunk driving *2 on New York's roadways, the State legislature enacted the prompt suspension law (Vehicle and Traffic Law § 1193[2][e][7]), which under certain circumstances mandates the suspension of a driver's license to operate a motor vehicle pending the prosecution for driving while intoxicated (Pringle v. Wolff, 88 NY2d 426, 429 (NY 1996). In recognizing the constitutionality of the prompt suspension law, the Court of Appeals stated that ”the statute permits the arraigning court to grant hardship relief (Vehicle and Traffic Law § 1193[2][e][7][e])“(Pringle. at 433). The Court may grant a hardship privilege where a Defendant makes the requisite showing that the mandatory suspension under VTL § 1193[2][e][7] will create an extreme hardship ”to 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 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“ (VTL § 1193[2][e][7][e]).

In determining whether to grant a hardship privilege, the Statute does not prescribe a rigid formula for the Court to apply. Rather, the decision is left to the sound discretion of the Court after consideration of all of the facts and circumstances presented. The determination must be made on a case by case analysis. The burden of establishing the extreme hardship rests squarely with the Defendant (People v. Mallet, 34 Misc 3d 1216(A) (Crim. Ct. Kings Co. 2011)).

In People v. Bridgman, 163 Misc 2d 818 (City Ct. Canandaigua Co. 1995), the City Court adopted the following factors and determined that the Defendant met his burden in granting a hardship privilege; (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. This approach was rejected in People v. Correa, 168 Misc 2d. 309 (Crim. Ct. Richmond Co. 1996) where the Court declined to follow the enumerated factors in Bridgman and found that the Defendant did not meet his burden in establishing a hardship as a result of the suspension of his driving privilege while the Court in People v. Reick, 33 Misc 3d 774 (Crim. Ct. NY Co. 2011) appeared to follow the Bridgman factors and granted a hardship privilege to the Defendant.

This Court finds that the approach applied in Bridgman and followed in Reick to be persuasive. The Bridgman factors are by no way exhaustive or exclusive. Each case will need to be judged by its own facts and circumstances with the Defendant ultimately bearing the burden of establishing that her set of facts and circumstances warrant a finding of hardship. Here, most relevant are the factors addressing alternative means of transportation available to the Defendant to and from work as well as the distance from the Defendant's employment to her home.

The Defendant has shown that she lives in Queens and works in New Jersey. Her commute to and from work is approximately 63 miles. She has provided documentation from her employer as evidence of her employment. She drives to and from work 3 days a week Mondays, Tuesdays and Wednesdays between the hours of 8:00 a.m. and 8:30 p.m. and there are no other *3 realistic alternatives for her to commute to and from work. Essentially, she will be left unemployed if she is unable to drive to and from work. Under these circumstances, the Court finds that the Defendant has met her burden of establishing a hardship.

Accordingly, The Defendant's driver's license is suspended and the Defendant is granted a hardship privilege for the express and limited purpose of driving to and from work 3 days per week, Mondays, Tuesdays and Wednesdays between the hours of 8:00 a.m. and 8:30 p.m. only.

The foregoing constitutes the opinion, decision and the order of the court.

DATED: February 20, 2018

Brooklyn, New York

Christopher Robles, J.C.C.