Most Rochester residents would agree that being arrested for any offense – including Driving with a Blood Alcohol Content of .08% or Greater – is not the same as being convicted.

Our legal system does not assume that people are guilty just because they were arrested.

As a result, people may question whether taking away the driving privileges of someone who has been arrested for Driving with a Blood Alcohol Content of .08% or Greater – but not yet convicted of anything – is a violation of that person’s constitutional rights.

Unfortunately for those arrested for alcohol-related driving offenses, the highest court in New York State, the Court of Appeals, has examined this issue and determined that the law suspending a driver’s license pending prosecution is constitutional.

In making this determination, the Court of Appeals agreed that a driver’s license is a substantial property right that a driver cannot be deprived of without due process.

It also found, however, that due process did not require that the criminal case be fully prosecuted and defendant convicted of a drinking and driving offense before any suspension occurred.

Instead, it found that the protections provided by the law surrounding suspensions pending prosecution adequately fulfilled due process requirements.

These protections include the requirement that the court hold a hearing prior to any suspension to determine whether the accusatory instrument (the document that is given to the defendant explaining the charge) sufficiently sets forth the facts supporting the charge.

The prosecution is also required to submit the blood or breath test result supporting the charge of Driving with a Blood Alcohol Content of .08% or Greater in admissible form.

Finally, the defendant is allowed to submit evidence to rebut the charges or the breath test result before the court may suspend his or her driving privileges.

The Court of Appeals also noted that there is a governmental interest in promoting highway safety, and requiring what would amount to a full trial before allowing license suspension would prove unduly detrimental to this governmental function.

It is important to know your rights following a DWI arrest. For legal help, call us at 585-484-7432.