When a person is charged with driving while intoxicated as a result of having a blood alcohol content by weight of at least .08 of one percent, the court must suspend his or her driver license pending prosecution, irrespective of whether the accusatory instrument has been converted to an information.

Defendant is charged by misdemeanor complaint with, among other things, two counts of operating a motor vehicle while intoxicated, in violation of Vehicle and Traffic Law § 1192 (2) and (3). In the sworn complaint, Police Officer Marilyn Trapanotto alleges that she was informed by Police Officer Daniel Galvani that Officer Galvani observed defendant operating an identified automobile in that "the key was in the ignition, the engine was running and defendant was behind the wheel," and further observed that defendant was intoxicated in that he "had watery and bloodshot eyes, had slurred speech, had the odor of an alcoholic beverage on his breath, was unsteady on his feet, had a flushed face and . . . [was] driving at an excessive rate of speed."

Officer Trapanotto additionally alleges that she was informed by Police Officer William Wilson that Officer Wilson "administered a test pursuant to [the] provisions of Section 1194 of the Vehicle and Traffic Law to determine the defendant's blood alcohol content and that such test indicated that the defendant had .127 of one per centum by weight of alcohol in his blood."

At defendant's arraignment on the instant complaint, the People filed with the court and served on defendant, among other things, a supporting deposition from Officer Wilson attesting that he had administered the chemical test alleged in the accusatory instrument, and that the test results were as there set forth. Not then provided, however, was a supporting deposition containing nonhearsay allegations of Officer Galvani, necessary to convert the misdemeanor complaint to a facially sufficient information with respect to the driving-while-intoxicated counts (see CPL 100.40 [1] [c]; 170.65 [1]). Upon adjourning the case for the required deposition, this court suspended defendant's driver license pending prosecution, pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7). This decision serves to explain the basis for the court's order.

Vehicle and Traffic Law § 1193 (2) (e) (7) — the prompt suspension law — provides that "a court shall suspend a driver's license, pending prosecution, of any person charged with a violation of [Vehicle and Traffic Law § 1192 (2) or (3)] who, at the time of arrest, is alleged to have had [*2].08 of one percent or more by weight of alcohol in such driver's blood as shown by chemical analysis of blood, breath, urine or saliva, made pursuant to" Vehicle and Traffic Law § 1194 (2) or (3) (Vehicle and Traffic Law § 1193 [2] [e] [7] [a]). Such mandatory suspension must occur "no later than at the conclusion of all proceedings required for the arraignment" (Vehicle and Traffic Law § 1193 [2] [e] [7] [b]).

In order to impose this suspension, however, the court must — after affording the defendant an opportunity to be heard (see Vehicle and Traffic Law § 1193 [2] [e] [7] [b]; Pringle v Wolfe, 88 NY2d 426 [1996]) — "find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and [that] there exists reasonable cause to believe . . . that . . . the holder operated a motor vehicle while such holder had .08 of one percent or more by weight of alcohol in his or her blood as was shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of" Vehicle and Traffic Law § 1194 (Vehicle and Traffic Law § 1193 [2] [e] [7] [b]).^[FN1] Plainly, there exists reasonable cause to believe that defendant operated a motor vehicle while having more than .08 of one percent by weight of alcohol in his blood, as shown by a properly administered chemical test,^[FN2] and defendant does not contend otherwise.

This court rejects the contention that the further mandate that the accusatory instrument conform to the requirements of CPL 100.40 — which governs the facial sufficiency of local criminal court accusatory instruments — authorizes a Vehicle and Traffic Law § 1193 (2) (e) (7) license suspension only when the accusatory instrument filed against the defendant is or has been converted to an information.

To be sure, CPL 100.40 (1) sets forth the requirements for a facially sufficient information, including that the information must be based on nonhearsay allegations that, if true, establish every element of the offense charged and the defendant's commission thereof (see CPL 100.40 [1] [c]). And if the prompt suspension law mandated that the accusatory instrument conform to the requirements of subdivision one of CPL 100.40, rather than of CPL 100.40 generally, the court would indeed lack authorization to suspend defendant's license under Vehicle and Traffic Law § 1193 (2) (e) (7). But CPL 100.40 also includes subdivision four, which applies not to informations, but to misdemeanor complaints. In specific contrast to an information, a misdemeanor complaint need not be based on nonhearsay allegations in order to be sufficient on its face under CPL 100.40. Accordingly, inasmuch as the court finds that the misdemeanor complaint now pending against defendant conforms to the requirements of CPL 100.40 (4), his driver license must be suspended pending prosecution.

Although I thus conclude that the suspension of defendant's license is mandatory in this case, I further note that the court would in any event be authorized to suspend his license as a [*3]matter of discretion in accordance with Vehicle and Traffic Law § 510 (3-a), which provides that a "license or . . . the privilege of a non-resident of operating a motor vehicle in this state . . . may . . . be temporarily suspended . . . pending any prosecution . . ." (see also Vehicle and Traffic Law § 1193 [2] [e] [7] [c] ["(n)othing contained in this subparagraph shall be construed to prohibit or limit a court from imposing any other suspension pending prosecution required or permitted by law"]).