“We wrote the book on defending DWI’s.”
As a result of your arrest for Driving While Intoxicated(DWI), you are going to have numerous questions that need to be answered by me or other members of the law firm. Our firm has learned over the years, however, that certain questions are often asked by clients who are charged with an alcohol-related offense.
When reviewing this information, please be aware that many changes to the law surrounding DWI prosecutions over the past several years. As a result, much of this new legislation has not been reviewed by the courts. Therefore, our legal advice on these topics may change as the justice system provides us with guidance on the new areas of law.
Discussed below are several of the most commonly asked questions and concerns that arise in DWI cases. Please review this information, along with the accompanying Chart so that you have a better understanding of your case and the penalties that could be imposed should there be a conviction under any section of VTL § 1192. Please keep in mind that this is only a summary of several frequently encountered topics in a DWI case. Feel free to call us with more specific questions or print this page out and bring it with to your first meeting.
NEW LICENSE regulations for multiple offenders
As of September 2012
*All re-licensing will require “lifetime” reviews of the driving record.
**Serious Driving Offense- 20 points on license in 25 years, 2+ five point driving convictions, fatal crash, driving-related penal law conviction.
FAQs and Info
If you submitted to a chemical test of your blood (the most common method being a breath test) and “scored” .08 BAC or more, you license shall be suspended at arraignment.
If you had a valid driver’s license prior to the suspension pending prosecution and did not have a prior conviction for Driving While Intoxicated or Impaired, or complete the Drinking Driver Program within the proceeding five (5) years, you may be eligible for a conditional license after the expiration of 30 days. The conditional license will be issued by the Department of Motor Vehicles. Please discuss this issue with me should you have any questions.
Sometimes a driver may be eligible for a hardship license. The court which conducts your arraignment will decide your eligibility for this limited license. To be eligible, the court must determine that you will be subject to “extreme hardship” without this license. NY VTL § 1193(e)(7)e defines “extreme hardship” as:
...the inability to obtain alternative means of 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.
This license only allows the driver to operate their vehicle to and from their place of employment. It does not allow a driver to operate a vehicle for work.
A. The Drinking Driver Program (NY VTL § 1196)
If this is your first alcohol-related arrest, and you are convicted of either DWI or DWAI, then you are eligible to participate in the New York State Drinking Driver Program (DDP). This program consists of weekly classes for approximately seven weeks and involves a total of approximately fifteen (15) classroom hours. The cost to enroll in the DDP is approximately $225.00.
Participation in the DDP is limited. Repeat offenders are not permitted to participate in the program if the time from their prior completion of the program to the date of their next arrest is less than five years. The five years runs from the date the DDP was completed until the date of the most recent arrest. It does not run from the date of your last conviction.
B. Scope of Conditional License
If you are permitted to participate in the DDP, then, absent any aggravating factors, you are also eligible for a conditional license. Although there are limitations imposed on the holder of a conditional license, it does allow you to drive under the following conditions:
a. To and from your employment and during employment when required;
b. To and from a class or activity that is part of your rehabilitation program;
c. To and from classes at an accredited school or vocational institute;
d. To and from any court ordered probation activities;
e. To and from the DMV for the transaction of business associated with the license or program;
f. To and from medical treatment for yourself or a member of your household (requires a letter from a licensed medical practitioner);
g. During a period of three consecutive daytime hours;
h. To and from a place, including a school, where your children are cared for and that is necessary to maintain your employment or enrollment in school.
(See Section 1196(a) of the Vehicle and Traffic Law.)
The cost for the conditional license is approximately $75.00; this is in addition to the fee to enroll in the DDP. It will cost you an additional $25.00 to return your conditional license to the DMV.
One third of all DDP attendees are sent for additional assessments and/or treatment. If the Department of Motor Vehicles determines that he/she is in need of additional counseling, failure to complete that treatment will result in the revocation of all driving privileges including a conditional license.
Accompanying this letter is a chart which sets forth the mandatory minimum and maximum penalties that a court may impose should there be a conviction for an alcohol-related offense. You should review this chart to determine the potential penalties that may be imposed upon you. Be certain that you consider any prior alcohol-related convictions when utilizing the chart. Also, please pay particular attention to the additional fees that can be imposed by the Department of Motor Vehicles, should you sustain an alcohol-related conviction.
If your BAC was .18% or higher, you will face a charge called Aggravated Driving While Intoxicated, which, like Driving While Intoxicated, is an unclassified misdemeanor. This charge does, however, carry stiffer fines and harsher sanctions to your driver license.
If you are uncertain as to whether or not you have sustained a prior alcohol-related conviction (or the type of conviction), please let us know, and we will make arrangements with the Department of Motor Vehicles to obtain a printout of your driving history. If you had a prior alcohol-related conviction in another state, please let us know so that we can determine its impact upon your current charge. Such a conviction will normally show up on a criminal record check.
If you are arrested for Driving While Intoxicated, Driving While Ability Impaired by Drugs or Driving While Ability Impaired by Alcohol and Drugs, and you have a minor age fifteen years old or younger in your vehicle, you will face a charge of Aggravated Driving While Intoxicated with a Child.
Aggravated Driving While Intoxicated with a Child is a class E felony. It carries the same license penalties as the misdemeanor charge of Aggravated Driving While Intoxicated per se, but, because it is a felony, has the potential for larger fines and longer periods of incarceration.
Drivers arrested for Aggravated DWI with a Child also will be reported to the Department of Social Services.
It is important to understand that there are two types of breath tests. If you refuse a “screening test” prior to an arrest, you may be issued a ticket and, if convicted, be fined for refusing.
After an arrest, you may be requested to take a chemical test. This test, which is usually a breath test but may also be a test of blood, urine, or saliva, is the test used as evidence in court. If you “refuse” to take this chemical test, there is a different set of penalties.
A chemical test refusal mandates suspension of your license at your arraignment, which usually occurs at your first appearance before a judge. At your arraignment the judge will direct that you provide him or her with your driver's license. Thereafter, the court will mail your license to the Department of Motor Vehicles in Albany, NY.
Although there is no hearing associated with the judicial suspension of your license, the court will schedule a “refusal hearing” with the Department of Motor Vehicles. This hearing must be scheduled within 15 days of your arraignment or your license will be reinstated by the Department of Motor Vehicles.
A refusal hearing is an evidentiary proceeding conducted before an Administrative Law Judge. If the Administrative Law Judge concludes that you, in fact, refused to take a chemical test as requested by a member of law enforcement, then your license must be revoked for a minimum of one (1) year.
In addition to revocation of your license, you will be required to pay a $500.00 civil penalty prior to restoration of your “full” driving privileges pursuant to NY VTL § 1194(d)(2). A refusal adjudication will also affect future suspensions and revocations arising out of unrelated alcohol-related convictions. For instance, a second chemical test refusal within five years of an initial refusal or alcohol conviction carries an enhanced civil penalty of $750.00. More serious, however is the fact that a second refusal revocation within five years of a previous alcohol violation or refusal results in a mandatory minimum eighteen month revocation of your license.
If your license is “revoked” by the administrative law judge at the refusal hearing, it means your license is canceled. To get a new license, you must re-apply to the Department of Motor Vehicles once the revocation period is over. The Department of Motor Vehicles will decide whether or not you will be issued a new license.
You do not have an absolute right to speak to an attorney before agreeing to submit to a breath test. Instead, in New York State you have a qualified right to speak with an attorney. In People v. Gursey, 22 NY2d 224, 292 NYS2d 416, 239 NE2d 351 (1968), the New York State Court of Appeals held:
Where the defendant wishes only to telephone his lawyer or consult with a lawyer present in the station house or immediately available there, no danger of delay is posed. But, to be sure, there can be no recognition of an absolute right to refuse the test until a lawyer reaches the scene. (Gursey at p. 229.)
A New York State Appellate Division court ruled in 1994 that a motorist who sought to first consult with his attorney before submitting to a test was, in essence, refusing.
Several courts in New York State now have “drug court” programs. Some individuals arrested for alcohol-related driving offenses may be eligible for the programs; the specific criteria necessary to enter varies from court to court. Also, some courts may strongly encourage participation in a drug court program as a way to avoid incarceration.
Drug court programs divert the defendant, while the charge remains pending, into an intensive, court-monitored program of group and individual counseling. The defendant waives his or her constitutional rights and consents to such conditions as random breath tests and regularly reporting to the court. The length of this program varies, but it typically lasts from six to twelve months. If the defendant fails to comply with the conditions of the program, there are several different sanctions, including jail time, that may be imposed. If the defendant successfully completes the program, he or she usually will receive a lesser sentence.
Every jurisdiction in New York State establishes its own policy regarding if and when a defendant is eligible for a plea to a reduced charge. A plea to a reduced charge will be explored by your defense team, but we cannot guarantee such a plea will be extended by the District Attorney‘s Office.
In addition to the plea policy of each District Attorney's Office, New York State Vehicle and Traffic Law section 1192 (a) imposes the following limitations on pleas to reduced charges in DWI related cases:
(i) In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section, other than subdivision five or six, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.
Section 1193[1-a] the Vehicle and Traffic Law requires mandatory incarceration or the performance of community service by individuals convicted of Driving While Intoxicated or Driving with .08% or Greater BAC who also have one or more prior convictions for those offenses within the previous five years. The length of mandatory incarceration or community service depends on the number of prior convictions as set forth below:Mandatory IncarcerationCommunity ServiceOne prior Driving While Intoxicated or Driving with .08% or Greater BAC conviction within the past five yearsat least Five days; orat least Thirty daysTwo or more prior Driving While Intoxicated or Driving with .08% or Greater BAC convictions within the past five yearsat least Ten days; orat least Sixty days
If you have one or more prior convictions for Driving While Intoxicated or Driving with .08% or Greater BAC within the past five years, please contact our office. We can provide you with suggestions regarding where to perform community service.
An “ignition interlock device” is, to put it simply, a breath test machine attached to the ignition of an automobile. The driver must blow into the device and register no alcohol in his or her breath before being able to start the car.
As of August 15, 2010, if you are convicted of Driving While Intoxicated, Driving While Intoxicated per se, or Aggravated Driving While Intoxicated, the court must require that an ignition interlock device be installed or your vehicle. Courts are, however, free to impose the installation of any ignition interlock before the effective date of this legislation.
The installment of an ignition interlock device is in addition to any fine or period of incarceration imposed by the court. It must remain on your vehicle for the entire term of the period of probation or conditional discharge imposed by the court, or at least six months, whichever is longer.
If you are required (or directed by the court) to install such a device, in most cases you will be responsible for the installation fee and monthly charge associated with its operation. Failure to install or maintain an ignition interlock device is grounds for revocation of a conditional license.
Individuals who drive a company vehicle for work may do so without an ignition interlock device being installed on the vehicle provided that it is only driven for work and the employer provides written documentation to the court and probation department that he or she is aware of the driver’s conviction.
New York State has enacted a system requiring different levels of alcohol and drug use evaluation and potential treatment for different offenses. At arraignment or, at the discretion of the court, prior to sentencing, you shall be required undergo either mandatory screening or a mandatory assessment. The details of this system are broken down below.
First time violators charged with Driving While Ability Impaired by Alcohol, Driving While Intoxicated, or Driving While Intoxicated per se and either had a breath test result of less than .15% or refused the chemical test, must be screened by treatment professional using a standardized written screening test. If your screening indicates that you are abusing or dependant upon alcohol or drugs, you then must undergo the mandatory assessment as set forth below.
You will be required to undergo a mandatory assessment under any of the following circumstances:
- The screening process set forth above indicates abuse or dependance upon alcohol or drugs;
- You have been charged with Driving While Intoxicated or Driving While Intoxicated per se and had a BAC score of .15% or greater;
- You have been charged with Aggravated Driving While Intoxicated;
- You have been charged with violating any provision of VTL § 1192 and have either (a) a prior conviction for any provision of VTL § 1192, Vehicular Assault or Vehicular Manslaughter within the last 5 years, or (b) two such convictions within ten years.
The assessment must be forwarded to you and the court within thirty days. If it indicates that treatment is required, the court must require such treatment as a condition of any sentence of probation or conditional discharge.
Miscellaneous Provisions regarding Screening/Assessment/Treatment All screenings and assessments, along with any treatment arising from such assessment, must be conducted by an “alcohol or substance abuse professional” or “licensed agency” approved by the New York State Office of Alcoholism and Substance Abuse Services. While many alcohol counselors are professionally licensed by the New York State Education Department and/or approved by the Department of Motor Vehicles, this level of approval is not sufficient to participate in the new court-mandated program.
In you are allowed to enter a guilty plea to a charge of Driving While Ability Impaired by Alcohol, participation in the Drinking Driver Program shall be considered compliance with the mandatory treatment program.
Moreover, in addition to requiring the installation of ignition interlock devices in certain cases, Section 1193[1-a](c) of the Vehicle and Traffic Law also requires that, for defendants convicted of Driving While Intoxicated or Driving with .08% or Greater BAC two or more times within five years, the Court “order that such person receive an assessment of the degree of their alcohol abuse. Where such assessment indicates the need for treatment, such court is authorized to impose treatment as a condition of such sentence.”
Section 1199 of the Vehicle and Traffic Law requires that, in addition to any other court imposed fines, a driver convicted of ADWI, DWI, DWAI, or of having refused a chemical test, must pay a mandatory “driver responsibility assessment” to the Department of Motor Vehicles in the amount of $250 per year for three years. If you are convicted of any of these offenses, you will be notified by the Department of Motor Vehicles through the US mail regarding the time and manner of making these payments. Failure to pay any portion of this assessment will result in a suspension of your driver license or, if you do not have a driver license, suspension of your privilege to obtain a license, until it is paid in full. You may also wish to speak with the DMV about your payment options.
Section 1196(g) of the Vehicle and Traffic Law states:
Notwithstanding anything to the contrary contained in a certificate of relief from disabilities issued pursuant to article twenty-three of the correction law, any conditional license or privilege issued to a person convicted of a violation of any subdivision of section eleven hundred ninety-two of this article shall not be valid for the operation of any commercial motor vehicle. In addition, no such conditional license or privilege shall be valid for the operationof a taxicab as defined in this chapter.
As a result, even if you were not driving a commercial motor vehicle at the time of your arrest, you will be barred from holding a Commercial Driver License if you are convicted of any alcohol-related driving offense. This bar will remain in affect until your full driving privileges are reinstated.
Obviously, if you need a Commercial Driver License as a part of your job, this law could seriously impact your employment. You should make your attorney aware that you hold such a license immediately so that you may explore your options. Because the only legal mechanism by which an individual charged with an alcohol-related offense may continue operating a commercial motor vehicle without interruption is full acquittal from all alcohol-related charges, the need for a Commercial Driver License may seriously impact the manner in which you choose to proceed with your case.
A certificate of relief from disabilities, which may be issued by the sentencing judge, is not sufficient to have your privilege to drive a commercial motor vehicle reinstated.
Holders of a Commercial Driver License should also be aware that should you refuse to submit to a chemical test, your commercial driving privileges will be revoked for eighteen months. This revocation applies regardless of whether you were driving a commercial motor vehicle at the time of your arrest and of the outcome of your case in criminal court.
There has been a growing tendency for local newspapers to promptly report arrests for Driving While Intoxicated or similar offenses. Should your name appear in the newspaper or other media outlet regarding your arrest and prosecution, please provide us with a copy of the article. Thereafter, we can discuss with you whether there would be any advantage or benefit to crafting a response to the article. Under no circumstances should you contact or, if contacted, speak with any member of the media regarding your case. We can assist you with this aspect of your case.
Suspension or revocation of your driver’s license as a result of an alcohol-related conviction is just cause for your insurance company to cancel your automobile insurance policy.
An alcohol-related conviction increases the probability that your insurance company will not renew your present insurance policy. Assuming no other company agrees to offer you insurance, you will be relegated to the New York Automobile Insurance Plan (i.e., the “risk pool”) at a substantially higher cost. In general, alcohol-related convictions remain on insurance company records and are used as a factor to determine premiums for between five (5) and ten (10) years.
If you are convicted of any alcohol-related offense, you may be barred from entering Canada. Canada generally bars any U.S. citizens who have been convicted of a misdemeanor from entering their country. Canada has also been known to exclude individuals convicted of Driving While Ability Impaired by Alcohol (VTL § 1192, a traffic infraction) from entering the country.
To obtain entry to Canada following any conviction, you may need to apply for a Minister’s Permit with the Canadian Consulate. Approval of this application would allow you to enter into Canada for a short-term visit. An individual convicted of a crime may not obtain long term entry into Canada until at least five years have passed from the date his or her sentence was completed. At that time, he or she may apply to the Canadian Consulate for “rehabilitation.” If granted rehabilitation, a U.S. citizen with a criminal record may enter Canada in the same manner as if he or she had no criminal record.
The impact of a conviction upon your ability to enter other foreign countries varies from country to country. If being barred from traveling to a particular country could have a negative effect on your business or other dealings, you should inform your attorney so that this aspect of your case may be more thoroughly explored.
If you hold a pistol permit, the mere fact that you were arrested may result in an immediate suspension of your right to possess a firearm. If you are convicted of any section of VTL § 1192, a hearing will be held to determine the length of any revocation period. This hearing would be conducted separately from your case and may be before a judge or a judge’s law clerk.
If you hold a professional license, such as a license to practice law, a nursing license, an engineering license, or a certified personal accounting license, you should be concerned about the potential impact of a conviction on that license. If you hold a professional license, please bring this fact to the attention of your attorney. A conviction under VTL § 1192 may have to be reported to your professional licensing board and could trigger a hearing before the board to determine if your professional license should be suspended or revoked. Additionally, financial sanctions may also be imposed. Because of the impact this would have on your career, it is very important that the regulations surrounding your license and the impact of any conviction be fully examined before any determination is made regarding how to proceed with your case.
If your business holds a special license issued from a government agency (e.g., the New York State Liquor Authority), a conviction under VTL § 1192 may have adverse consequences to that license. You should provide a copy of any such license to your attorney so that any potential problem may be explored before your case is resolved.
Pursuant to NY CPL § 160.50, if you are convicted of the violation of driving while ability impaired or driving while intoxicated, your fingerprints and mug shots will not be returned to you and/or sealed by the court. Rather, they are permanently on file.
If you are convicted of Driving While Intoxicated as a felony, you will no longer be eligible for to serve on a jury. This applies to both grand juries and petit (trial) juries. If you are convicted of Driving While Intoxicated as a misdemeanor or Driving While Ability Impaired by Alcohol (a traffic infraction), it will not impact your ability to serve as a juror.
After reading the information contained in this letter and the accompanying chart, you may have additional questions. We encourage you to contact us with these questions or any other concerns you may have as a result of your arrest.