DWI Lawyer in Buffalo, NY
One of the primary concerns for an individual charged with a alcohol or drug related driving offense is the impact it will have on his/her license. Aside from other penalties associated with an alcohol-related driving conviction, the licensing issue is by itself complex.
The status of one’s license in a DWI case is affected by a variety of factors including prior DWI history, BAC reading, whether there was a refusal, whether there was an accident resulting in a fatality or serious physical injury, and the type of license the individual holds.
Because of the importance and necessity of a license for most people, it should be addressed by an attorney at the very first meeting with their client. The circumstances of the client’s case will dictate how the licensing issue should be addressed.
Having an attorney that is familiar with licensing penalties, hardship license, conditional license, DMV refusal hearings, and the new and changing DMV regulations is essential in protecting your ability to drive.
The Prompt Suspension Law
If an individual took a chemical test which resulted in a BAC reading of .08 or more of 1% then his/her license will be “suspended pending prosecution” under the “Prompt Suspension Law”.
The Prompt Suspension Law applies to most alcohol-related driving charges. However it does not apply to driving while ability impaired by alcohol or driving while ability impaired by drugs only. There are also numerous procedural due process requirements that must be complied with before a suspension pending prosecution can take effect.
For example the court must have in its possession the results of a certified chemical test showing a blood alcohol content of over .08 of 1% and the court must determine that there is reasonable cause to believe that the driver operated a motor vehicle while having a blood alcohol level in excess of .08 of 1%.
If there are any issues with the accusatory instruments and supporting documents that would impact the imposition of The Prompt Suspension Law, then an attorney should request a “Pringle Hearing” which is typically held at arraignment but no later than three days after arraignment.
Unfortunately many times an individual will go to the first Court appearance or be arraigned without counsel. The court will nevertheless suspend the individual’s license without making any findings, holding a Pringle hearing, or providing the opportunity for the individual to present evidence.
If the Prompt Suspension Law is applicable in your case because you have been charged with a alcohol-related driving offense that falls under the statute, then you should have an attorney at your side who has prepared a formal “hardship motion”.
In order to properly and effectively request a hardship license allowing you to drive for such purposes as employment, school, and medical treatment, you must meet with an attorney well before the first court appearance and provide the relevant information that is required in such a motion. In addition supporting documentation is required such as pay stubs, school schedules, letters from employers, treatment schedules if applicable, affidavits if applicable, and bus schedules if applicable.
It must also be determined whether you are eligible for a hardship license. In certain cases, such as chemical test refusals, you will not be eligible for a hardship license. If you are convicted of any alcohol-related driving conviction within the preceding five years you will not be eligible for a hardship license.
Issuing a hardship license is solely in the court’s discretion. If there is not a proper basis with adequate supporting documentation to request a hardship license then a judge will not be inclined to issue one.
VTL §1193-2(e)(7)e provides that if suspension of the defendant’s license will result in extreme hardship to the defendant, then the Court may grant a hardship privilege allowing the defendant driving privileges under certain circumstances. The statute defines “extreme hardship” as:
“…the inability to obtain alternative means of travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or a member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate.”
The statute further states that a “finding of extreme hardship may not be based solely upon the testimony of the licensee”.
In People v. Bridgman, 163 Misc2d 818; 622 NYS2d 431 (City Court of Canadaigua 1995), the Court sets forth eight (8) factors that it believed should be considered when determining if extreme hardship exists.
These factors are:
- The presence of absence of licensed persons present in the licensee’s household;
- The ability of other licensed household members to provide transportation for the licensee;
- The occupation and health condition of the licensee;
- The proximity of the licensee’s place of employment, health care provider or school to his or her household;
- The presence or absence of any public transportation or taxi service to or from the licensee’s household to the place of employment, health care provider or school;
- A consideration of the licensee’s ability to afford public transportation or taxi service as an alternative means of transportation;
- The presence or absence of co-workers, friends or family members who may assist in the licensee’s transportation; and/or
- Any other factors that the court deems as appropriate to the determination.
Chemical Test Refusals
The refusal to submit to a chemical test upon request of law enforcement having reasonable cause to believe that an individual is driving under the influence of alcohol or drugs will impact one’s license differently than someone who takes a chemical test/breathalyzer.
New York Vehicle And Traffic Law §1194(1)(b) states that: “every person operating a motor vehicle which has been involved in an accident which is operated in violation of any of the provisions of the VTL shall, at the request of a police officer, submit to a breath test to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such operator to submit to a chemical test in the manner set forth in VTL §1194 (2).
New York Vehicle And Traffic Law §1194 (2)(a) states that: “when authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or with respect to a chemical test of blood, at the direction of the police officer: (1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of VTL §1192 and within two hours after such person has been placed under arrest for any such violation… or (2) within two hours after a breath screening test, as provided in VTL §1194(1)(b), indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member…”
If you are investigated for an alcohol/drug related driving offense, the police will conduct various field sobriety tests in addition to making other observations during their encounter with you. If there is reasonable cause to believe that you are in violation of any section of VTL §1192 then the officer will request that you submit to a chemical test, typically a breathalyzer.
In doing so the officer will provide you with the option to either take the test or refuse it. That officer must read you the following refusal warnings: (1) you are under arrest for driving while intoxicated; (2) a refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you were arrested; (3) if you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest; (4) will you submit to a chemical test of your (breath, blood, urine).
If you have refused the chemical test your license is immediately suspended temporarily. At your first court appearance (arraignment), the judge must schedule a refusal hearing to be held within 15 days of the arraignment to determine whether you in fact refused the chemical test.
An individual who refuses a chemical test will not be entitled to a hardship license. If there is a refusal there will typically be a period of time in which an individual is unable to drive. An effective DWI attorney can minimize the period of time that the client is not driving and attempt to restore driving privileges as soon as possible.
Perhaps the most frequently asked question of someone charged with a DWI is will I be able to drive. The answer depends on a variety of factors and is highly dependent on whether someone has a history of DWI convictions and if so the nature of that history.
For a first offense DWI, the client will usually be able to obtain a conditional license. Eligibility for individuals having prior DWI convictions depends on how long ago the last conviction was. There is a five year eligibility range which is calculated as the completion date of the drinking driving program for the prior offense up to the date of the new arrest.
There are two different types of conditional license, a pre-conviction conditional license and a post conviction conditional license. After a defendant is charged with a DWI, he/she may receive a letter from the Department of Motor Vehicles advising them that they are eligible for a pre-conviction conditional license. Although this license will provide slightly more driving privileges than a hardship license, there is a cost associated with a pre-conviction conditional license, and it will ultimately be taken at the conclusion of the case when the individual can then apply for a post conviction conditional license.
At the time of sentencing, if a person has a hardship or pre-conviction conditional license, the DWI attorney should request a “20 day order”, which will stay the commencement of the revocation/suspension period. Within 20 days the Department of Motor Vehicles will send a letter advising that person that they are eligible for a post conviction conditional license and how to apply for same. The 20 day order essentially ensures that there is no gap in the person’s ability to drive while awaiting to apply for a post conviction conditional license.
Upon receipt of the letter, the individual should immediately go to a DMV office and obtain a post conviction conditional license. The person will pay for the license and at the same time sign up for the Drinking Driving Program (DDP) otherwise known as the Impaired Driver Program (IDP). In order to keep the conditional license the person must engage in and successfully complete the DDP program.
The individual will pick the location and dates of the DDP program and pay the applicable fee. The program consists of seven classes which are between 2 and 2 1/2 hours in duration. If someone is only convicted of the lesser included offense of driving while ability impaired by alcohol as a violation which results in a 90 day suspension of one’s license, then that person will typically be able to reapply for their license at the conclusion of the DDP program.
The scope of a conditional license includes the following:
(1) enroute to and from the holder’s place of employment, (2) if the holder’s employment requires the operation of a motor vehicle then during the hours thereof, (3) enroute to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program and at which his attendance is required, (4) enroute to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training, (5) to or from court ordered probation activities, (6) to and from a motor vehicle office for the transaction of business relating to such license or program, (7) for a three-hour consecutive day time period, chosen by the administrators of the program, on a day during which the participant is not engaged in usual employment or vocation, (8) enroute to and from a medical examination or treatment as part of the necessary medical treatment for such participant or member of the participant’s household, as evidenced by a written statement to that effect from a licensed medical practitioner, and (9) enroute to and from a place, including a school, at which a child or children of the holder are cared for on a regular basis and which is necessary for the holder to maintain such holder’s employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training.
The driving parameters of a conditional license must be adhered to. There are numerous reasons for the Department of Motor Vehicles to revoke someone’s conditional license including but not limited to failure to attend the DDP program, a new alcohol-related driving arrest, conviction to speeding or speed contest, and driving outside the parameters of the conditional license among other such reasons.
Practically speaking a conditional license will allow you to drive for those things that you necessarily have to drive for. Having a DWI attorney that knows how to secure a conditional license for his/her client as soon as possible can mean the difference between driving now or waiting to get back on the road.
DMV Refusal Hearing
A refusal to submit to a chemical test/breathalyzer results in a separate civil/administrative DMV hearing. The hearing addresses the following four issues: (1) Did the officer have reasonable grounds to believe that such person had been driving in violation of any subdivision of VTL 1192; (2) Did the police officer make a lawful arrest of such person; (3) Was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license whether or not such person is found guilty of the charge for which the arrest was made; and (4) Did such person refuse to submit to such chemical test or any portion thereof.
The burden is on the officer to prove each of these elements by clear and convincing evidence. The rules of evidence are relaxed at a refusal hearing and hearsay evidence is admissible. If it is found that an individual did refuse the chemical test then their license will be revoked for a period of at least one year. Further the DMV will impose a civil penalty in the amount of $500.00 plus a driver responsibility assessment fee of $750.00 which can be paid in full or in yearly installments of $250.00 per year for three years.
In most cases the officer will be able to sustain his burden. However there are many opportunities for an effective and creative DWI defense attorney to achieve positive results at a refusal hearing. The refusal hearing can be utilized to obtain discovery for the underlying criminal case, can result in a temporary reinstatement of the client’s license, or if there is a defense to the claim of refusal, a finding in favor of the motorist.
At the refusal hearing you and your attorney will appear with the document entitled “notice of refusal”. Your attorney will sign in on your behalf and provide the Administrative Law Judge a copy of his or her card with the “notice of refusal”. There is typically a separate room where the police officers will wait for the case to be called. Once there is a “match” (i.e. the officer and the motorist) the administrative law judge will call the case and begin the hearing.
The hearing is usually conducted in a small room wherein the Administrative Law Judge sits at the head of the table, the officer or officers sit across from the attorney and his or her client. The hearing is recorded by the administrative law judge.
Typically the Administrative Law Judge will render a decision at the end of the hearing. However if there are any novel issues, a request to submit legal memorandum or other documentation, or a request for the transcript, the judge may reserved decision and send a formal written decision at a later date.
It is important to have a DWI lawyer that is well-versed in all of the potential aspects of a DMV refusal hearing. Having an attorney that knows how to address both the refusal hearing and the criminal case appropriately can be the difference between being able to drive sooner than later.
Should I take the Breathalyzer
As a DWI defense attorney I am commonly asked the question “should I take the breathalyzer if I’m stopped for DWI”. The answer is, there is no right answer. Whether it is beneficial or not to submit to a chemical test is completely contingent on the circumstances of the given case.
In some circumstances I would advise a client to refuse the test. For example if there is an accident resulting in death or serious physical injury refusal is advisable. If there is a prior DWI conviction within 10 years a refusal is advisable. If you consumed many alcoholic beverages in a short period of time, or at the bar for an extended period of time and drinking heavily, or taking shots of alcohol regularly, then refusal may be advisable.
However if it is a first offense and you had a few more beers than planned or an extra glass of wine then it would be beneficial to take the breathalyzer.
If you are charged with an alcohol/drug related driving offense and are now looking for the right attorney for you, then it does not matter whether you took or refused to take the breathalyzer. What is important is retaining an attorney that understands the differences between a refusal case and a case in which there is a chemical test result.
While there are various resources to determine your blood alcohol content including such websites as : http://bloodalcoholcalculator.org/ or portable breathalyzer devices, it is very uncommon to utilize these resources. A DWI is never intended or planned. In many cases it is a law-abiding citizen that had too many beverages and drove home.
DWI Licensing Penalties
The licensing penalties for a DWI or drug related driving conviction vary substantially depending on a variety of factors including prior history, timing of the prior history, level of offense, the presence of an accident involving injury, or whether there was a refusal or not.
The simplest way to have a basic understanding of the potential licensing consequences of a DWI or drug-related driving offense is to utilize the Department of Motor Vehicles “penalties for alcohol or drug violations chart” which can be found at: https://dmv.ny.gov/tickets/penalties-alcohol-or-drug-related-violations.
However this is a very basic understanding of the potential licensing consequences. It is important that you are aware of the potential licensing consequences with respect to your individual case. It’s also important to be advised of your options for a conditional or restricted license.
As a DWI defense attorney I will review the charges facing my client and fully inform them of how their particular case will affect their license. I will also begin immediately preparing their case to obtain some type of driving privileges allowing them to drive for necessary purposes such as work, school, or medical appointments.
New DMV Regulations
In 2012 Governor Andrew Cuomo implemented new regulations through the Department of Motor Vehicles addressing the issue of repeat DWI offenders. Essentially the executive branch of the government bypassed the legislature and created administrative law which is now in effect. The new laws are perhaps the strictest in the entire country.
These new regulations have resulted in the permanent or lengthy revocation of many people’s licenses. The new regulations are legally problematic for a variety of reasons including that they were applied retroactively, violate ex post facto doctrine, are in direct contradiction with other provisions of the New York vehicle and traffic Law, and arguably unconstitutional in some respects.
Many DWI defense attorneys began and continue to fight the imposition of these new regulations upon their clients. In doing so a process and standards has been established for individuals affected by these new laws to contest them.
Unfortunately most courts defer to the Department of Motor Vehicles and their inherent powers to regulate driving and the issuance of licenses. As such it is quite difficult to have a DMV decision denying the reinstatement of your license overturned.
Applicants with three or four alcohol/drugged-driving related convictions or incidents within a 25 year period, without a serious driving offense and whose revocation does NOT result from an alcohol or drugged driving conviction or incident, will be denied relicensing for two years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for two years. A serious driving offense is a fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed, or 20 or more points from any violations.
Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, without a serious driving offense and whose revocation DOES result from an alcohol or drugged driving conviction or incident, will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock.
Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, with a serious driving offense will be permanently denied a driver license, unless there are compelling or extenuating circumstances.
Applicants with five or more alcohol/drugged-driving related convictions or incidents on their lifetime driving record will be permanently denied a driver license, unless there are compelling or extenuating circumstances.
The understanding and application of these new regulations is complex. In order to effectively address these potential serious consequences the DWI defense attorney must understand the different components of the new regulations including the look back period, the point system, the standards considered for reinstatement, the appeal process if denied re-licensing, and article 78 proceedings against the DMV and applicable.
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