Wednesday, March 19, 2014

Ithaca Lawyer Explains the Maryland Driver's License with a New York DWI


The Protections of Double Jeopardy and Administrative License Sanctions

All states are not the same. When it comes to DWI/DUI license penalties, one state will punish your first time out of state DWI/DUI, and another will do nothing about it. One state will fine you thousands of dollars (New Jersey is $3,000) another will have no fines at all (Pennsylvania). One state will take away your license with absolutely no conditional (work) privileges, and another will no effect any of your driving privileges.

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Many people mistakenly believe that double jeopardy applies to license punishments in DWI cases, it does not. Double jeopardy means you cannot be punished for the same crime twice but when it comes to license issues (problems) you can be punished twice!

BECAUSE

A license is a driving "privilege" NOT a right. It is a permission to do something akin to a property right in some sense. What that means is that if and when you are facing license sanctions (ie. punishments) in one jurisdiction (area/state) it is likely that you also be facing a license issue back in your home state as well. Administrative privileges have much lower levels of proof, almost lower than a civil level. If something is a little more likely than not to be true, well then it is.

The First KEY Point is Does the New York Offense = the Offense Back in Your Home State

By legal definition is it "substantially" the same? Or is it different?

I recently had two cases of Maryland licensed drivers with pending New York DWIs. The big win on both was getting the criminal misdemeanors reduced to our non-criminal violation offenses called DWAI (driving while ability impaired by alcohol). This is New York VTL 1192- 1.

I belong to the NCDD (National College of DUI Defense), and with out of state license holders I call my friends in these states who are conversant with the current laws and administrative rules pertaining to DUI/DWI.

Maryland DUI Law versus New York DWI Law

In these cases with Maryland I discovered that there is a Maryland charge of ability impaired. The Maryland DUI Impaired is "prima facie" at .07 BAC (blood alcohol concentration). Prima facie evidence means facially sufficient proof to bring the charge but not necessarily prove the charge. It is disputable, and arguably not impairment at .07 BAC. In Maryland it is "assumed" that at .07 you are impaired by alcohol. While in New York state if YOU are .06 BAC there is a legal presumption that your ability was impaired by alcohol. Maryland also imposes 8 points on your license for what they consider DUI impaired by alcohol.

This means that one could argue that Maryland alcohol impairment and New York alcohol impairment are fundamentally (substantially) different charges, and therefore any punishments (sanctions) brought on a Maryland licensed driver with a NYS DWAI should NOT be imposed.

Practical Decisions with Maryland Licensees with New York DWAI

First, Maryland has a MVA (Motor Vehicle Administration). I advised my clients who did not reside in New York to take the Maryland alcohol awareness course, called the AEP (alcohol education program). If they lived in NYS they could take our 15 hour 7 week course called the DDP (drinking driver program). New York should give reciprocity to the Maryland program as well. It is a total of 12 hours (6 sessions of 2 hours each session). The Maryland program includes an assessment which could lead to a referral if they feel you are an alcohol abuser or dependent. If you are referred, their full blown program is 26 weeks, easy math, 6.5 MONTHS!

If and when Maryland DMV comes knocking (and they will) YOU will be prepared to show YOUR completion of this course. It will likely take 4 or more months for your New York DWAI to get from our DMV to their DVA.

The big IF,

If Maryland wants more penalties from YOU then YOU can opt for an administrative hearing with their DVA, and then you and your lawyer can then demonstrate that the NYS offense that you plead to was not substantially the same as the Maryland DUI ability impaired.

Why Proactivity Trumps Passivity

I believe that having completed on your own accord (without prompting) the Maryland 12 hour alcohol awareness program would bode well to demonstrate your commitment to not repeat any further alcohol driving related transgressions. It combined with showing the inequality in law between Maryland and New York could sway an administrative judge to NOT punish you further, this is always a good thing!

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

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newman.lawrence@gmail.com
607-229-5184

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