Sunday, August 30, 2009

The DMV has Pickles, Pockles, and Hardship: The Five Phases of DWI Licenses

The Five Phases of DWI Licensure

I really wasn't sure what to call this blog post. I originally started with: A Tale of Three: The Hardship, the Pickle, and the Pockle, it all began when I saw that people applying to Ivy League schools (like Cornell) sometimes got another type of bad news called a DWI.

In that case the DWI stands for Denied Admission Without Interview, should really be DAWI. I learned that from living and practicing in Ithaca, NY.

We live in worlds of acronyms, my world has it's own language. The world of New York DWI defense. Some states have OWI (operating while intoxicated), OUI (operating under the influence), or DUI (driving under the influence). BTW all under the influence types of offenses are very similar but NOT the same. How about a little alcohol to a lot of alcohol? In my opinion, understanding the process and the acronyms is only half the battle but feeling more comfortable with the language is a start in the right direction.

In my mind there are too many confusing acronyms. I will seek to shed some much needed light upon the Hardship (Hardship License or Hardship Privilege),
the Pickle (Pre Conviction Conditional License), and
the Pockle (Post Conviction Conditional License).

The first license issue begins at the arraignment also called the initial appearance. This will usually occur twice. You will be arraigned without counsel, and then at a later date with your attorney present. You will be apprised of the charges being brought against you by the prosecution, and you will need to enter a plea.

This is also the point in time where the license or privilege holder loses their permission to drive in New York State. Called the suspension pending prosecution. The suspension pending prosecution occurs one of two ways: if you had a BAC of .08 or higher or you refused to take the Chemical Test. If the person charged with a DWI is a New York State license holder then their license is physically taken from them. If the person is from another country or state (referred to as a foreign license holder) then their license is photocopied, and their privilege to drive within the State of New York is suspended. From this point forward any permission to drive within the state will come with specific conditions. Please note that if you refused to test you will not be granted any conditional privileges to drive in NYS without a plea or a conviction to one of the drinking related charges. If you were acquitted of all DWI charges your refusal would still stand to block any hopes of a conditional license privilege for one year barring your demonstration at a DMV refusal hearing that the refusal warnings were not properly given.

A hardship license hearing can be requested at the initial appearance, and must occur within 72 hours (3 days) of the initial appearance with counsel. Most Courts have a hardship hearing at the arraignment if counsel is prepared with the necessary proof at that time.

The hardship privilege license is for three primary activities: driving to and from work, driving to and from school, and driving to and from medical care. In actuality, it is also extended by some Judges for three additional areas: your childcare situation, your children’s education, and your children’s medical needs. For instance, some Judges will allow pick up and exchange of children for purposes of spousal employment. This is very often a necessity where almost fifty percent of parents are either living separate households. On the other hand, some Judges will be very restrictive in allowing any driving privilege outside of the three primary activities. Proof must be provided to the Court to evidence the transportation needs being sought. These needs must demonstrate to the Court that there is “no reasonable alternative means of transportation available.”

Under the law, the hardship license (all licenses are permissions) is clearly for “to and from” work not “for” work. For instance, if someone’s job requires delivering products and/or services to different people or places this license would not cover those job duties. The DMV makes a clear distinction and exception for one thing: job sites. If you travel to do work at different sites then that is an acceptable use of the hardship license.

The hardship license is granted by the Court at the time of arraignment, and is usually considered a bridge to the Pre Conviction Conditional License. The suspension of your New York State license or privilege will be reported to the main office of the DMV in Albany. It will take about two weeks for Albany to process this suspension. Approximately two weeks after your suspension you can make application for a PCCL (pickle) at the local DMV. It is granted to New York State license holders, and out of state license holders that can show a clean record in their own states. It is suggested to all out of state license holders at the first possible moment after your DWI arrest to obtain a copy of your out of state driving record.

The PCCL is much the same as the Hardship license, except the Pickle allows driving not merely “to and from” work but “in the course of employment.” The distinction in wording is huge. Now the PCCL holder may drive “for” work. In addition, with a PCCL you can select a three hour period of discretionary driving privileges per week.

The last in our series of conditional licenses is the Post Conviction Conditional License or Pockle. After your case is resolved by plea or by trial you now return to the DMV, and apply for the DDP. The DDP is the Drinking Driver Program. The completion of the DDP is usually a condition of the Court for DWAI, DWI, and ADWI convictions or pleas. With the DDP comes the POCCL. You will not get a POCCL without attendance at the DDP. It allows for all that was permitted by the PCCL plus the ability to drive to and from the DDP classes, and any associated drug/alcohol treatment. As always there is more to say and tell and explain, you are free to contact me for further information or enlightenment.

The 9 Most FAQ About NY DWI, here:

The New York Up State DWI Survival Guide, here:

Winning The NYS DWI Refusal Case, here:

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 550 blog posts, dozens of articles, and over 520 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.


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