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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.
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)
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.