Wednesday, January 18, 2017

Ithaca DWI Lawyer: How DWI Clerical Mistakes Can Mess Up Your Getting a Conditional License

Excelsior is Latin for Ever Upward
New York State's judicial system has about 1,300 Justice Courts. With more than 2,000 Justices (Court Judges) handling about 2,000,000 cases a year. These Courts have the power to adjudicate (hold jurisdiction) over both civil and criminal matter. These Judges are responsible for administering justice over everything from simple speeding tickets to misdemeanor DWI cases.  Justice Courts are the local criminal Courts, and have jurisdiction over ALL criminal charges except felonies and preliminary jurisdiction over ALL offenses subject to their being divested (taken over) by Superior Court (County Court). So with all that power, What can happen if one of the Court Clerks checks an incorrect box on the DMV form in your DWI case?

 New York State Justice Courts Administer DWI DMV License Suspension Paperwork

When a criminal misdemeanor DWI with a breath first begins the Court MUST do a Driver's License Suspension. This is known as the Suspension Pending Prosecution. It can only happen if there is in fact a certified breath result and that result is .08 BAC or higher.

There are always NYS DMV forms that must be filled out, and then filed by the Justice Court with the DMV. In the majority of DWI cases this filling out, and filing of the forms is usually done by the Court Clerk. 

Suspensions Pending Prosecution Forms Have Two Main Boxes: The Two Types of Section VTL 1193 (2) (e) 1 and 7


These DMV Suspension Pending Prosecution forms are used for different types of DWI cases, and for different people the forms are just filled out just a bit differently. There is a box by VTL 1193 (2)(e)(1)  and then another box by VTL 1193 (2)(e)(7). There is only one decimal of difference in the numbers but a world of difference between these boxes.


  1. VTL Section 1193(2)(e)(7) is for people charged with violating VTL §1192.2, §1192.2(a), or §1192.3 who are alleged to have a BAC score of .08 or more, and have not been convicted of any DWI provision of § 1192 in the prior 5 year time period.

VTL 1192.2 is DWI BAC .08 or more
VTL 1192.2 a is Aggravated DWI BAC .18 or more
VTL 1192.3 is Common Law (NO BAC DWI)

  1. VTL Section 1193(2)(e)(1) is for people charged with violating VTL § 1192.2, § 1192.2(a), or § 1192.3 who have been previously convicted of any DWI § 1192 in the prior 5 year period.


You see some people have prior DWIs. If someone has a prior DWI within the previous five (5) years then they are NOT eligible for a Hardship License or a conditional driver's license.

For a First Time NYS DWI Even If You Don't Get a Hardship You Will Be Eligible for a DMV Conditional License

Even if you don't apply for or can't get a hardship license you should be able to get a NYS conditional driver's license. You just go to any DMV office 30 days after your first appearance in court and get one.

To Get a NYS Conditional License the Court Clerk Had to Check the Proper Box on the Suspension Pending Prosecution Form

The Court Clerk has three options: check nothing, check the wrong box, or check the correct box.

If the clerk checks off NO box then the DMV defaults to VTL Section 1193(2)(e)(1), meaning you had a prior DWI within the past Five years. Then you are NOT eligible for a conditional license by the DMV. Even if this is NOT true if there is NO box checked the DMV counts it as true.

If the clerk checks off the box with VTL Section 1193(2)(e)(1), meaning you had a prior DWI within the past Five years. Then you are NOT eligible for a conditional license by the DMV. Even if this is NOT true if there is THIS box checked the DMV counts it as true. 

For your first time DWI hopefully or if you have a lawyer that looks, they check off VTL Section 1193(2)(e)(7), meaning you have NO prior DWI within the past Five years. Then you are eligible for a conditional license by the DMV. 

A simple thing, but with a first time New York DWI so important not to mess up. Your driver's license privilege is your means to continue to make a living, perhaps go to school, visit the doctor, and to care for your family.