Relicensing
after alcohol related revocations in NY State
Effective October 15, 2012 New York enacted new
re-licensing after revocation rules, codified in New York Code of Rules and
Regulations 15 NYCRR § 136.5. The new regulations specifically target motorists
who are repeat, recidivist drinking and driving offenders. It is no longer
a foregone conclusion that, at the end of a NY DWI / DWAI revocation you will
automatically get your driving privileges back. These regulations are now
the toughest in the nation for having a license restored after a DWI conviction.
Under the old regulations the NYS DMV reviewed
an application for restoration after revocation for a New York driving while
intoxicated or a NY driving while ability impaired (DWAI) incident in the
vacuum of just that incident without regard to the totality of your driving
record. This is no longer the case. Now, the New York State Department of
Motor Vehicles conducts a “lifetime look back” of the entire driving history
upon application for restoration after revocation. Further, the review not
just for a DWI crimes and infractions, but includes “alcohol related incident,”
such as chemical test refusals and “per se” findings of alcohol consumption
for under 21 at the time of the finding. A complete explanation of the changes
and definitions are below, but in a nutshell the changes are:
1st time application for restoration |
No Changes |
|
|
2nd time application for restoration |
If a prior alcohol incident within 25 years,
full driving privileges cannot be restored upon completion of the NYS
DDP. The applicant must wait out the entire 1 year revocation period |
|
|
3rd & 4th applications
for restoration
when applicant is not under revocation for alcohol
related incident |
If applicant is currently revoked for non alcohol
or drug related incident and within the last 25 years applicant has
3 or 4 alcohol related incidents and no additional driving offenses
defined as “serious” (see below), said application will be denied. Applicant
and can re-apply after a 2 year waiting period. Upon approval applicant
is eligible for a 2 year restricted use license, after which period
applicant can apply for full driving privileges |
|
|
3rd & 4th applications
for restoration when applicant is revoked for an alcohol related incident |
If applicant is currently revoked for an alcohol
or drug related incident and has 3 or 4 alcohol related incidents but
no serious driving offenses within the last 25 years, upon making application
applicant will be denied and can re-apply after a 5 year waiting period.
Upon approval applicant is eligible for a 5 year restricted use license
and must install an ignition interlock on any vehicle owned or operated
by applicant. After the 5 year period applicant can apply for full driving
privileges |
|
|
3rd & 4th applications
for restoration
when applicant has serious offenses |
If within the last 25 years applicant has 3 or
4 alcohol related incidents and in addition has at least one serious
driving offense the NYS DMV must deny the application |
|
|
5th application for restoration |
Permanently ineligible for a license in the State
of NY |
|
|
Miscellaneous |
If twice convicted of VTL 1192(3), VTL § 1192(4),
VTL § 1192(4-a) and in each instance there was an accident with injury,
permanent ineligibility for a license in New York State |
Why
these sweeping changes?
In his September 25, 2012 press release, Governor
Andrew Cuomo stated that the new regulations were enacted because 17,500 licensed
NY drivers who already have three or more alcohol-related convictions have
been causing mayhem on the streets. According to the governor’s statistics,
those 17,500 motorists:
·
Have been involved in at least one crash that injured
or killed someone after those convictions
·
Have been involved in over 22,000 crashes that injured
or killed someone, and
·
Resulted in over 500 fatalities.
Governor Cuomo touts these new regulations as:
“[A] multi-pronged initiative to keep drivers with a history of repeat alcohol…convictions
off the road…[T]he…new regulations…will give New York among the toughest protections
in the nation against drivers who persistently drive under the influence of
alcohol or drugs…”
The Governor’s office has estimated
that, as a result of the new DMV regulations, an estimated 20,000 drivers
will have their licenses permanently revoked or delayed this year.
Restoring your NY driving privileges
after revocation and keeping you on the road
These new regulations are problematic, apply after
the fact to all of those you have had any type of alcohol related conviction
or breathalyzer refusal in the past 25 years, and will likely pass constitutional
scrutiny. However, there is a lot we can do to work with the NYS DMV within
the
regulatory scheme in order for you to have your
NY driving privileges restored and maintained.
The devil is in the details, and the special rules
for applicants with multiple alcohol or drug related driving convictions or
incidents have been codified in Section 136.5 of the NYS DMV rules and regulations.
Definitions
of Section 136.5 - 15 NYCRR § 136.5(a)
Alcohol-
or drug-related driving conviction or incident means:
·
A
conviction of a violation of section 1192 of the Vehicle and Traffic Law (driving
while intoxicated or driving while ability impaired)
·
A
finding of a violation of § 1192-a of the VTL (under 21 per se)
·
A
conviction of an offense under the Penal Law for which a violation of § 1192
of the VTL is an essential element, or
·
A
finding of refusal to submit to a chemical test under section 1194 of the
Vehicle and Traffic Law, not arising out of the same
incident.
Serious
driving offense means:
· A fatal accident
· A driving-related Penal
Law conviction
· Conviction of two or more
violations for which five or more points are assessed on a violator's driving
record (reckless driving, VTL § 1212, passing a stopped school bus, VTL §
1174, speeding 21 MPH or more over the limit, VTL § 1180) ; or
· 20 or more points from
any violations.
Revocable
offense means:
·
The
violation, incident or accident that results in the revocation of the person's
driver’s license and which is the basis of the application for relicensing.
Upon reviewing an application for relicensing,
the commissioner shall review the applicant's entire driving record and evaluate
any offense committed between the date of the revocable offense and the date
of application as if it had been committed immediately prior to the date of
the revocable offense.
New
NY State regulations for approving or denying applications
to
reinstate driving privileges after revocation
Automatic
Denials
Under these
new regulations the NYS DMV must now conduct a lifetime review of a motorist’s
driving history for reinstatement. The application must be denied
if the lifetime review reveals shows that:
·
The
applicant has five or more alcohol or drug related driving convictions or
incidents in any combination within his or her lifetime
·
The
applicant has more than two and less than five alcohol or drug related driving
convictions or incidents within the past 25 years preceding and, in
addition, has one or more serious driving offenses within
the 25 years preceding the date of the revocable offense
·
The
applicant is twice convicted of VTL 1192(3)(driving while intoxicated), VTL
§ 1192(4) (driving while ability impaired by drugs), or VTL § 1192(4-a) Driving
while ability impaired with a combination of drugs and alcohol where physical
injury has resulted from such offense in each instance
Extended
revocation periods
An applicant’s
application for reinstatement shall be delayed for a period of at least
5 years if the lifetime review of the applicant’s record indicates
that:
·
The
applicant has more than two and less than five alcohol or drug related driving
convictions or incidents within 25 years, no serious driving offenses within
25 years; and the person is reapplying from revocation of an
alcohol or drug related driving conviction or incident.
Under the new rules, after such delay period the
applicant can re-apply for re-licensing. Upon approval, full driving privileges
are not restored. Rather, the motorist will be entitled to a restricted, limited
use license and the requirement that the motorist installs an ignition interlock
on any motor vehicle owned or operated by the motorist for five years thereafter.
Further, if during the 5 year restricted use period the motorist’s license
is revoked for an alcohol or drug related conviction, the motorist will be
thereafter ineligible for any type if operator’s license.
An applicant’s
application for reinstatement shall be delayed for a period of at least
2 years if the lifetime review of the applicant’s record indicates
that:
·
The
applicant has more than two and less than five alcohol or drug related driving
convictions or incidents within 25 years and no serious driving
offenses within 25 years; and the reapplication is from a non
alcohol or drug related revocation.
The application shall be denied for a period of
at least two years, after such waiting period the applicant can re-apply
for re-licensing. Upon approval of said application, full driving privileges
are not restored. Rather, the motorist will be entitled to a restricted, limited
use license, but with no ignition interlock requirement,
for a period of two years. In the event that the restricted use license is
later revoked for a subsequent alcohol or drug related driving conviction
or incident, such person shall thereafter be ineligible for any kind of NY
license to operate a motor vehicle.
Upon a second conviction of an alcohol- or drug-related
driving conviction or incident within the 25 years preceding the date of the
revocable offense, the DMV may approve the application
after the minimum statutory revocation period is served.
Rights
upon a denial of reinstatement after revocation
Under the new regulations a motorist who is denied
reinstatement after revocation has the right for the grounds for the denial
to be set forth in writing and a copy transmitted to the applicant. Further,
the applicant has a right to make an appeal of the denial to the DMV administrative
appeals board. The appeals board cannot consider any information that was
not submitted by the applicant on the initial application that was denied.
Nonetheless, if a motorist failed to support his or her application with relevant
material the motorist can make a new application with the relevant material.
Why
you should consider utilizing a lawyer to make your application
or
appeal to reinstate your driving privileges after revocation
Before making the application, our office will
thoroughly review your driving record for accuracy. This includes out of state
violations that have been recorded on your NY DMV history. Often times prior
violations are mis-recorded. For example, you may have plead guilty to a parking
ticket on a plea in a small court Onondaga County 10 years ago, but the clerk
reported it to the DMV as a plea of guilty to the speeding charge of 26 MPH
over the limit by mistake. Such a mistake is easy to fix BEFORE you make your
application for reinstatement. Often times, the local courts record your one
DWI or DWAI conviction as two convictions in error. This too can be repaired
prior to making the application.
Second, while the regulations are tough, there
are exceptions written into the rules. The regulations specifically state
that:
“…[T]he commissioner [DMV]
shall not be foreclosed from consideration of unusual, extenuating and compelling
circumstances that may be presented for review and which may form a valid
basis to deviate from the general policy…in the exercise of discretionary
authority granted under section 510 of the Vehicle and Traffic Law…”
Now, before you get excited and
think you can do this on your own, I have to warn you that “I really,
really, really, need my driver’s license because [full in the blank]”
will NOT work. If it were that easy, they would not have
enacted these tough regulations to begin with. Understand that whether or
not you think it is fair, if you fall into this category it is YOU
that the New York State wants permanently off of the road.
There is a certain way one communicates
with an administrative agency. You communicate with an agency with an understanding
that they have broad discretion and that the only way a court can overturn
a decision of their decision is if it is arbitrary, capricious, or an abuse
of discretion.
In the context of considering
whether your case falls into the category of extenuating and
compelling circumstances, the applicants unsupported self serving assertions
are meaningless. The way you do that is prove it through 3rd party
evidence in admissible form.
Further, we review the regulations
in their entirety to see what, in other contexts, the DMV deems there to be
unusual, extenuating and compelling circumstance. Such regulatory framework
is found in the plain language of the regulations at 15 NYCRR § 136.1. Under the regulation, the DMV’s primary concern
is that of public safety to highway users. Further, The DMV is directed to
utilize its own driver improvement programs to rehabilitate and educate “problem
drivers.” Further, there is a presumption that the involved driver would present
a danger to himself and others if highway use is allowed.
A person is
deemed a problem driver when they had a revocation or revocations due to a
series of convictions, incidents and/or accidents and upon review of the applicant’s
entire driving history, establishes that the person would be an unusual and
immediate risk upon the highways. Another way of being a problem driver is
if the applicant has a history of abuse of alcohol or drugs, consisting of
a record of two or more incidents, within a 10-year period. For these
drivers, rehabilitative effort must include treatment by an agency certified
by the Office of Alcoholism and Substance Abuse and/or agents authorized by
professional license or professional certification and evidence of abstinence
from alcohol and/or drugs for a period of time sufficient to indicate that
such person no longer constitutes a danger to other users of the highway.
So clearly
bring to the DMV evidence of ongoing substance abuse counseling through either
the DMV or a counseling organization they recognize is key in getting your
driving privileges back sooner than the regulations allow.
Other
techniques to re-instate your driving privileges
The evaluation begins with a good understanding of your criminal
alcohol related convictions, a particular serious offense conviction, or several
courts if your serious offense is predicated on a total of 20 or more points
or several convictions. Correcting the record to remove erroneous convictions
is one thing. However, going back to the courts where you were correctly convicted
and making a motion to vacate archaic convictions is another thing to be considered.
Such an application is allowed under NY Criminal Procedure Law § 440 – post
judgment motion to vacate a conviction. Under that law, a trial court has
broad discretion to vacate and set aside a criminal conviction.
Lastly, if the DMV fails to reinstate your driving privileges
after your administrative appeal, your only recourse left would be to proceed
into NY Supreme Court under CPLR § 7801 - § 7806, commonly called an “article
78 proceeding.” In short, this is where the supreme court reviews the entirety
of the administrative action of the administrative agency, in this case the
New York State Department of Motor Vehicles. The Supreme Court acts as an
appellate court and, if they find error, order the agency to reverse their
decision. However, the Supreme Court can only review from the record below.
This is why it is so important to retain counsel to make these applications
for you before the DMV and the Supreme Court.