New York DUI checkpoints and the duty to stop

Start with what does not exist. New York has never enacted a checkpoint statute of the kind some states have, and there is no Vehicle and Traffic Law section that tells a driver a checkpoint stop is mandatory in those words. The authority comes from decisions of the New York Court of Appeals, People v. Scott being the case usually cited for the standard that a checkpoint must be conducted under a uniform, non-arbitrary procedure that limits the discretion of the officer in the field. That is judge-made law and is described here as context only; every figure below comes from a codified section.

The duty to stop is statutory, just not checkpoint-specific. Vehicle and Traffic Law § 1102 provides that no person shall fail or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic. It contains no penalty of its own, so § 1800(a) classifies it as a traffic infraction and § 1800(b)(1) supplies the sentence: a first conviction is punishable by a fine of not more than one hundred fifty dollars or imprisonment for not more than fifteen days or both, a second conviction where both offenses fell within eighteen months by a fine of not more than three hundred dollars or forty-five days, and a third or subsequent conviction within the same eighteen month window by a fine of not more than four hundred fifty dollars or ninety days.

What happens once you are stopped is governed by § 1194. Subdivision 1(b), headed "Field testing", requires every person operating a motor vehicle which has been involved in an accident, or which is operated in violation of any of the provisions of the Vehicle and Traffic Law, to submit at a police officer's request to a breath test administered by the officer. The predicate is written into the sentence: an accident, or an observed violation of the chapter. If the screening test indicates the operator has consumed alcohol, the officer may then request the chemical test described in subdivision 2.

Subdivision 2(a) is New York's implied consent rule. Any person who operates a motor vehicle in this state is deemed to have given consent to a chemical test of one or more of breath, blood, urine, or saliva, to determine alcoholic and drug content of the blood. New York's four-fluid list is broader than the breath-or-blood formulations used elsewhere. The test must be administered by or at the direction of a police officer who has reasonable grounds to believe the driver was operating in violation of a subdivision of § 1192 and within two hours after arrest, or within two hours after the stop where the suspected violation is § 1192-a, the zero tolerance provision for drivers under twenty-one. Subparagraph (2) supplies a second route: within two hours after a § 1194(1)(b) breath test indicates alcohol has been consumed. For a driver under twenty-one, subparagraph (4) forbids arrest for a § 1192-a violation altogether but allows temporary detention solely for the purpose of requesting or administering the chemical test.

Refusal has an administrative track that runs independently of the criminal case. Before a refusal counts, the driver must have been informed that the license and any non-resident operating privilege will be immediately suspended and subsequently revoked, and § 1194(2)(c) requires that warning to have been given "in clear or unequivocal language". The officer makes an immediate written report of the refusal, which may be verified by a form notice that false statements are punishable as a class A misdemeanor under Penal Law § 210.45. The court temporarily suspends the license at arraignment without notice, and must transmit the report to the Commissioner of Motor Vehicles within forty-eight hours; that transmittal may not be waived even with the consent of all parties. The driver is entitled to a Department of Motor Vehicles hearing on four issues only: reasonable grounds to believe the person had been driving in violation of § 1192, a lawful arrest, a sufficient warning in clear or unequivocal language, and an actual refusal. If the department fails to provide the hearing fifteen days after the date of arraignment, the license is reinstated pending the hearing. A finding in the driver's favor on any one of the four issues terminates the suspension; a finding against on all four means immediate revocation, appealable under article 3-A of the Vehicle and Traffic Law.

The sanctions are fixed by statute. A revocation for refusal lasts at least one year, and at least eighteen months where the driver has a prior refusal revocation or a § 1192 or § 1192-a conviction within the preceding five years not arising out of the same incident. A commercial driver's license is revoked for at least eighteen months, or three years if the driver was transporting hazardous materials at the time, with permanent disqualification on a second refusal or a listed prior conviction. A driver under twenty-one loses the license for at least one year, or until reaching twenty-one, whichever is longer, where there is a qualifying prior. On top of the revocation, § 1194(2)(d)(2) imposes a civil penalty of five hundred dollars, rising to seven hundred fifty dollars for a second or subsequent revocation within five years or where the driver has a § 1192 conviction within the past five years; the commercial figures are five hundred fifty and seven hundred fifty dollars. No new license or permit is issued and no non-resident privilege is restored until the penalty is paid, and the money is paid into the general fund of the state treasury. Section 1194(2)(f) makes evidence of the refusal admissible in any trial, proceeding or hearing based on a § 1192 violation, but only on a showing that the warning was given in clear and unequivocal language and that the driver persisted in the refusal, § 1194(2)(g) entitles a driver who was tested to the results on request, and § 1194(2)(d)(3) bars the commissioner from setting aside a refusal revocation on the ground that the driver joined the alcohol and drug rehabilitation program under § 1196.

The enforcement itself is organized county by county. Vehicle and Traffic Law § 1197 creates the special traffic options program for driving while intoxicated, known as STOP-DWI. A county that establishes an approved program receives the fines and forfeitures collected within it for § 1192 and § 1192-a violations, the § 1194-a civil penalties, and fines for the vehicular assault and vehicular homicide offenses listed in the section, and must deposit them in a separate account under the exclusive control of the county's chief fiscal officer. Expenditures require the approval of the Commissioner of Motor Vehicles, and the chief fiscal officer must forward a written certificate of moneys expended quarterly. The program coordinator is designated by the county's chief executive officer, or by the chairman of the governing board where there is none, and in the City of New York by the Mayor.

Driving past or refusing to obey the officer directing traffic at a New York checkpoint is a violation of Vehicle and Traffic Law § 1102, a traffic infraction under § 1800(a), punished under § 1800(b)(1) by up to a $150 fine or fifteen days for a first conviction, up to $300 or forty-five days for a second within eighteen months, and up to $450 or ninety days for a third or subsequent within eighteen months. Refusing the chemical test after a proper warning leads to immediate suspension by the court at arraignment under § 1194(2)(b)(3), a Department of Motor Vehicles hearing limited to four issues under § 1194(2)(c), and on an adverse finding a revocation of at least one year, at least eighteen months with a qualifying prior within five years, at least eighteen months for a commercial license and three years if hazardous materials were being transported.

The § 1194(2)(d)(2) civil penalty is $500, or $750 for a second revocation within five years or where there is a § 1192 conviction in the past five years, and no license is reissued until it is paid. Evidence of the refusal is admissible at trial under § 1194(2)(f). If the department does not provide the hearing within fifteen days of arraignment, § 1194(2)(c) restores the license pending that hearing.