Appeal of denial of your application to restore your license after a DWI revocation
You were arrested for DWI in NY; you went to court, went through the system, were found guilty after trial or entered a plea, your NYS license was revoked, you completed your classes and counseling, and made an application to get your license back. However, instead of giving you your license back you were handed pages and pages of your driving history going back up to 25 years and an unintelligible reason why they are not restoring your driving privileges. Now you are here. You have come to the right place.
In 2012 New York upgraded their re-licensing after DWI revocation rules. New York State is now reviewing your driving history going back at least 25 years to determine whether they will give you your license back. If the NYS DMV has denied your application to restore your license it’s a problem but we can help you.
The serious problems to getting your driving privileges restored after a revocation begins when you attempt to get your license back after a 3rd alcohol related incident. There may be either a 2 or 5 year waiting period, and then a period where you can only operate a vehicle that has an interlock and only restricted privileges for a period of time before regaining unrestricted privileges. Upon a 5th DWI conviction you will be permanently banned from having a driver’s license in New York State.
Getting your license back after denial of restoration – a multi-step process
If you have hit this page and have not yet tried to appeal the decision yourself – DON’T! First off, the appellate process the papers indicate is very misleading. Understand that you are dealing with an administrative agency and bureaucrats. If an appeal stating “…but I really, really, really need my license back…” worked, they would not have changed the regulations to begin with. You communicate with an administrative agency in the language that they understand – within the regulatory discretion and guidelines that they operate within.
First step – prior to appeal
The NYS DMV gives you 2 opportunities to challenge a denial of restoration after a DWI or alcohol related incident caused a revocation. You can make an immediate appeal to the NYS DMV appeal’s bureau, or you can re-submit your application with new, different, or updated evidence. In addition to the denial, The DMV gives the motorist a thumbnail sketch of your prior driving history that is preventing a restoration. The historic convictions may have even occurred out of NY State.
The first thing our office does is review your official records from each state and compare them to what the NYS DMV is relying upon. Often times the NY Department of Motor Vehicle examiner misinterpreted the records as fitting into the requirements for denial.
A second problem we often uncover is that the underlying courts often mis-record with the NYS DMV your actual conviction. For example, you may have been charged with a 25 MPH speeding, which is a “serious violation” justifying denial of restoration in consideration of the totality of your record, however you had entered a plea to the lesser charge of a parking ticket, which is not a serious violation. Another common problem is that when someone is charged with NY DWI they are often charged with 2 counts, but are found guilty or enter a plea on 1 count. However, the local court incorrectly advises the NY DMV that you were guilty of 2 counts. When we find these errors we contact the original court and have them fix the record with the NYS DMV. This fix often brings you within the regulatory scheme to allow an immediate restoration of your driving privileges.
Sometimes however the record is accurate. In those cases we look for the easiest item or items on your driving history to go back to the court or courts of record(s) and move the court to vacate a plea to charge or charges previously entered and enter a plea that would be outside of the regulatory scheme which is preventing your driver’s license restoration.
If none of that would work, there is still hope. Even though the new regulations are extreme, there are exceptions to the rules. The New York State Department of Motor Vehicles can deviate from the policy if the motorist shows “…unusual, extenuating and compelling circumstances…” Just declaring that you need your driver’s license does not work. There are standards in the law to grant a hardship license and ways an applicant proves the hardship. This must be supported with evidence extrinsic of what the motorist states in self serving fashion. The evidence required varies situationally, however we are experienced in hardship applications and know how to put the best evidence forward.
So the first step is to re-apply with either a corrected record or evidence of exception to the rules. If the application is granted the job is done; if it is denied then we go onto the second step.
Second step – appeal to the NYS DMV appeal’s unit
If your best application is denied then you have no choice but to appeal to the DMV’s appeal’s unit. The DMV’s appeal unit cannot hear or consider new evidence, only review the decision based on the evidence below. This is why it is so critical to retain counsel to make your application below; because you are stuck with the record you made to get your NY driver’s license reinstated after DWI revocation. If your internal DMV appeal is granted then you are done. If not, you need to proceed to the third step.
Third step – appeal to the New York State Supreme Court
After all administrative remedies are exhausted your denied application for restoration of appeal after a DWI revocation is ripe for review in a court of law. This authority for this is found in New York’s Civil Procedure Laws and Rules (NY CPLR) § 7800 – 7806, Proceeding Against Body or Officer, or informally known as an “Article 78 Proceeding.” At its core, an Article 78 proceeding is an appeal to a court of law of an administrative decision. What a court is permitted to consider in an article 78 proceeding are:
· Whether there was a failure to perform a duty
· Whether the administration proceeded without or in excess of jurisdiction
· Whether the decision was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.
· Whether a determination made as a result of a hearing held where evidence was taken is supported by substantial evidence.
Why hire a lawyer to do this?
Simple – to prevail. Now, no lawyer can guarantee you a result. However, we can do it correctly so that you have the best opportunity at prevailing in getting your NYS driver’s license restored after a restoration. To do this correctly we may have to:
· Correct records
· Move to have convictions set aside
· Gather evidence to assert for the hardship exception
· Make an application or re-application
· Make an appeal to the DMV
· Bring an Article 78 proceeding to the Supreme Court
This work is very technical and not many attorneys know how to do it correctly. So it is quite understandable that you would not have an understanding of the process and procedure either. This is why you should retain counsel to represent you through this process.