Friday, March 16, 2012

Ithaca Lawyer Tells A Tale of Two Conditionals

You are arrested for a DWI, if you took a breath or a blood test or refused testing then you will be facing a driver's license suspension.

The NYS DMV DWI conditional licenses are most definitely a confusing matter.

The laws, the statutes, the integration or lack thereof between the Courts and the DMV, and lastly the practical application make it a mess to understand.

TIMING IS EVERYTHING

Basically it works like this:

You are driving in New York State with a FULL license or Privilege (if you don't possess a NYS driver's license you still have a privilege to drive here). For those out of staters, instead of taking your license physically the Court will merely suspend your privilege to drive in NYS. It all goes into the computer.

It all begins here: You are arrested for a Common Law DWI (at roadside), VTL 1192(3)  AND

If you have a BAC (blood alcohol concentration) of .08 or more based upon a blood or breathalyzer test then,

Your FULL license or Privilege is suspended at COURT arraignment (the initial/first appearance).

NOTE: if you have less than a BAC of .08 or they don't have a blood test then they should not suspend. Judges do have a catch all exception to suspend under NYS Vehicle Traffic Law section 510, but is is rarely used and only for those that are dangerous or reckless.

MUST "SHOW" NO ALTERNATIVE REASONABLE MEANS OF TRANSPORTATION


You may be entitled (can apply for) a HARDSHIP PRIVILEGE (this is not a Conditional license). People including Judges and attorneys call this a conditional license (it is NOT). Legally the hardship application by law must be within 3 days of the suspension but upstate it generally happens at the initial appearance.

It is strictly construed for 3 things:

TO and FROM privileges to drive to and from a job
TO and FROM privileges to drive to and from school
TO and FROM privileges to drive to and from medical care

NADA MAS (nothing more)!!!

NOTE: Some judges want more proof than others, ie. specific dates, times, pay stubs, school schedules. Other judges give open (no specifics to and from a place) privileges. I have represented the gamut of people in 9 different counties, from farmers to contractors, and the diversity of driving allowance most definitely varies from place to place.

THEN AFTER 30 days from the arraignment (the initial appearance) then you can go to the DMV,

- AND APPLY FOR A PCCL (pre-conviction conditional license), this is where the first of TWO conditional licenses begin:

IT allows the following types of driving:

SCOPE and/or Course of employment privileges to drive FOR work
TO and FROM privileges to drive to and from school
TO and FROM privileges to drive to Court and proceedings
TO and FROM privileges to drive to treatment, evaluations, and rehabilitation
TO and FROM privileges to drive to during a pre-selected three hour window per week

After Sentencing on the final charges (plea of guilty or a finding of guilt after trial)

Your attorney will likely request a 20 day STAY of the suspension period to begin. This allows the paperwork to process through Albany (main DMV), and trickle down to the local branches. You will at this point have back FULL license privileges for 20 days. The Court will issue the suspension paperwork which states when the suspension is to begin. They should date this 20 days from the final Court date to be effective.

BE PROACTIVE

You should (but don't count on it) get a letter from the NYS DMV after about 2 weeks (from sentencing) stating, "you are now eligible for a conditional license and to take the DDP (drinking driver program)."

AND YOU CAN THEN APPLY FOR A PRCL (post-revocation conditional license), this is the second of TWO conditional licenses. Called the PRCL because it comes after your license has been revoked by the Court (DWIs get revocations of licenses, DWAIs get suspensions of licenses).

Is there a difference between the PCCL and the PRCL?

Only that they are set and designed for two different time periods. In terms of privileges they are exactly the same.

Most confusion comes between hardship privileges, and conditionals.

Can you just keep and use your hardship privilege until the end of your case (matter)?

Yes you can but I think it is better to change it over for a number of reasons:

1. if you violate the hardship (go off the grid), ie. wind up at a bar in Rochester instead of work, then that is an
Aggravated Unlicensed Operation (a crime). If you violate the conditional license, it is merely a traffic offense, not a crime.

2. the conditional will give you vastly greater driving privileges, and more importantly if you are pulled over law enforcement views the conditional license differently than the hardship privilege.

Lastly, please remember that when you finally get your license back it is a PROBATIONARY license for six months, it is as if you just got a brand new license and your 17 again. IF you violate (speed, careless, etc.) then it will be taken away. Drive like a Saint because being upstate without a license can make for a long winter.

see my video, the two conditional licenses here:

http://www.youtube.com/watch?v=6_eu2cCJNBA

Law Offices of Lawrence Newman
504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com