Tuesday, March 20, 2018

Ending the New York DMV IDP Confusion

This is an update to my old post about the former New York DMV DDP (drinking driving program). That original post got the most views over the past years. I looked it over and it definitely needed a refresh as we all do from time to time.

New York's DMV's Drinking Driver Program is NOW called the IDP (impaired driving program) 

It is usually a given that you will eventually take it if you have a New York DWI or DWAI case. Some of the common issues:

1. How does the alcohol/drug evaluation counselor determine the need for treatment?
2. When is the IDP mandatory?
3. Can I get my full license privilege back early by completing the IDP?
4. How does my conditional license pre conviction relate to my conditional license post conviction?

1. Alcohol/Drug Evaluations with OASAS certified providers have a wide range of formats. 

The most common format is the two visit, screen and evaluation. I have heard of four visit evals. In some of the wealthier parts of New York State (not Ithaca), I have seen fees of $125 a visit with four visits to reach a conclusion. In Ithaca, it is around $80 a visit. I have seen evaluations with drug/alcohol screenings (Urine tests) and breath tests. Sometimes these may surprise the unwary.

You should discuss with your lawyer you use of controlled substances, prescribed or not. Because if they show up unexplained in the urine, this surprise could bring more grief than needed to the process.
The evaluators can be very subjective as to who requires treatment. I have spoken to some evaluators who feel the charge of DWI alone or a breath test with a BAC of over .08 qualifies a person for twelve weeks of three time a week twelve step classes. I have heard that positive responses to the following questions could automatically signal an abuse diagnosis:

Question 1: Do you have or had you had any hangovers?
Question 2: Do you think it is OK to have one drink and drive?
Question 3: Have you drank any alcohol since your arrest?

I would want a definition of hangover before answering that first question, but then I'm an attorney. Is feeling tired or bad the day after drinking a hangover? I sometimes feel that way after eating too much late night ice cream, would that qualify as a hangover? Be careful how you answer any question.

Again discuss with your attorney before going and who you are going to. You do NOT want to be misappropriately diagnosed. 
Now some evaluators are fair and some are not. Some will view the totality of person's life and behavior before rendering an opinion while others unfortunately do not. I have been surprised in both directions. Sometimes my clients did not get a treatment recommendation when in my opinion, half common sense and half legal, they needed help. And while I am not a drug/alcohol counselor you can often tell who needs help.

Other clients who only drink socially, never to excess, and with no underlying problems were given an alcohol abuse diagnosis. Please NOTE: You are allowed a second opinion BUT you really want this first evaluation to count because most certified evaluators will input into the DMV computer system directly to avoid your doctor (evaluation) shopping.

2. The IDP is mandatory in the following two situations:

-When the Court orders it as part of your CD, conditional discharge (a condition of your compliance with paying fines, and the VIP (victim impact panel)).

-It is also mandatory if you want a conditional license (New York) privilege post conviction.

Remember the NYS DMV only awards privileges for NYS whether that conditional license is good (valid) in any other state is ?

This is a crucial distinction. 

There is a PCCL (Pre-Conviction Conditional license) while you await a final disposition of your criminal case. It is given by the DMV after 30 days have run on your hardship privilege (the hardship privilege license is a conditional bridge license). The hardship privilege is merely for the 30 days following your suspension pending prosecution which occurs at the initial appearance if your BAC was .08 or higher.

When your criminal matter is resolved, usually at sentencing, you are supposed to "hand in" your pre conviction conditional license (PCCL) to the Court. If you or your attorney request, the Court will give you a 20 day stay of your suspension period. In other words, you will get your full privilege to drive back for 20 days from your sentencing date. You will get another 3 part form (like the hardship privilege document) that states the stay period, and the start of the suspension period. If after the 20 days have run and you have not signed up for the DDP classes you now have NO license privilege.

You are expected to sign up for the DDP to get a Post conviction conditional license, and you will get your full license back after the program is completed (for first time DWI offenders over the age of 21) and you pay "somemore" DMV fees.

3. The great news is after a total of seven weeks (16 hours) of IDP classes you will get your full license privilege back even if you had a DWAI: 90 day license loss or a DWI: 6 month license loss. There are some exceptions where the DMV will not shorten the Court mandated suspension period. See NOTE below.

You will have a 6 month PROBATION with the DMV on your new driver's license. No tickets of any type or you will lose this license.
If you are still driving at this point, without signing up for the IDP you are driving on a suspended license. If you are pulled over without a post conviction conditional license you are going to be charged with an AUO (aggravated unlicensed operation), a misdemeanor.

NOTE: Even if you complete the IDP the DMV will not give you back your full license privilege until the end of the revocation/suspension period:

1. if you originally had refused the breath test (the chemical test back at the station),
2. if you committed the alcohol or drug-related violation while driving a commercial vehicle,
3. if you were under 21 at the time of your arrest.
4. if this is not a first time DWI or DWAI offense in your lifetime (since 2012)
However, you can still complete the IDP and maintain your post conviction conditional license while the suspension/revocation period runs.

4. Do not confuse Pre and Post conviction Conditional licenses. The "pre" is given while awaiting the resolution of your criminal case without taking a IDP class. The pre is before your case is resolved. The "post" is only given in conjunction with signing up for and taking the IDP classes.

So I hope that this sheds some light on this pre, post, PCCL, IDP, and DWI alphabet soup. If not call or shoot me an email.

The big disclaimer: The Power of the DMV, especially since 2012 

The DMV has the ultimate discretionary powers to deny any driving privileges (limited or full) and/or relicensure depending on the motorist’s driving history and any other factors they wish to consider. This discretion may be exercised despite eligibility and after the minimum statutory periods of revocation or suspension has expired. Always check with the DMV concerning your driving status before you drive. Sometimes the Court may have sent the wrong paperwork or no paperwork to the DMV. In addition, if the DMV informs you that you do not have to do the IDP but the Court does, you still have to complete the DD.

Bottom line is get good guidance going through this whole process. People who do not will be slotted for a bad diagnosis and potentially a lot of treatment. Rehabilitation for a problem you do not have can be time, energy, and money consuming. All it takes is one person with power and authority to make your life a living hell, imagine multiples.

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