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Peter Gerstenzang, Esq.
Gerstenzang, O'Hern, Hickey & Gerstenzang
210 Great Oaks Boulevard
Albany, New York 12203
Call 518.456.6456
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A person charged with DWI in New York must be aware that several laws exist which, if applicable, call for the suspension of your driver's license pending prosecution. In other words, when you go to Court for your first appearance -- your arraignment -- on a DWI charge, the Judge will probably want to suspend your driver's license for the entire time that the case is pending.
In this regard, there may be legitimate defenses to avoid such suspension, and/or the ability to obtain a "hardship privilege" which lets you drive back and forth to work, school and/or to medical treatment. If your license is suspended pending prosecution, you may, after 30 days, be eligible for a "pre-conviction conditional license." In addition, you have a Constitutional right to a pre-suspension due process hearing known as a Pringle hearing.
Simply stated, suspension pending prosecution is an important and complicated area of DWI law which makes it critical that you obtain the advice of an experienced DWI attorney before you go to Court.
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A conditional license allows you to drive:
- To, from and during work;
- To and from the Drinking Driver Program and any related alcohol/drug treatment;
- To and from school;
- To and from probation;
- To and from DMV;
- To and from medical treatment;
- To and from your child's school or day care provider; and
- For one 3-hour time period per week to run errands.
To be eligible for a conditional license, you must be eligible for, and participate in, the Drinking Driver Program. However, there are numerous conditional license disqualifications. To find out if you are eligible for a conditional license, you should consult with a knowledgeable DWI attorney (or with DMV).
If you obtain a conditional license, you can use it until you are eligible for the return of your full driver's license. However, if you are convicted of a moving violation (e.g., speeding, no seatbelt, etc.) while on a conditional license, the conditional license will be revoked by DMV.
If you are convicted of DWAI Drugs, you are not eligible for a conditional license. However, you may be eligible for a restricted use license. A restricted use license is very similar to a conditional license, as are the eligibility requirements therefor.
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DMV will not issue you a conditional or restricted use license until your DWI, DWAI or DWAI Drugs conviction has been entered into the DMV computer. As a result, there is usually a delay of 10 to 18 days between the date that the Court takes your license (at sentencing) and the date that you can obtain a conditional or restricted use license.
To get you through this time period, most Courts will grant you a "20-Day Order." This document lets you keep driving for 20 days from the date that you are sentenced, which allows enough time for the Court paperwork to be entered into the DMV computer.
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There is a critical difference between a driver's license suspension and a driver's license revocation. A license suspension is for a fixed time period, which ends automatically upon your payment of a suspension termination fee. In other words, once you have served out your suspension time, DMV will reinstate your full driver's license the minute you pay the required suspension termination fee -- with no review of your driving record.
By contrast, with certain exceptions, a license revocation is not for a fixed time period, and does not end automatically. Rather, a license revocation is for a minimum time period, which will never, ever end until, among other things, you both (a) submit a reapplication to DMV with the appropriate reapplication fee, and (b) submit adequate proof to DMV that you have completed all required alcohol and/or drug treatment. In addition, when you reapply following a license revocation, DMV will conduct a review of your driving record, and will deny your application if, among other things, your driving record contains too many "negative units" (you accumulate a certain number of negative units for each conviction of a moving violation).
A critical exception to the general rules provided in this section is that, if you enroll in and successfully complete the Drinking Driver Program ("DDP") (including all required alcohol and/or drug treatment), DMV will terminate any outstanding suspension/revocation resulting from a DWI, DWAI or DWAI Drugs conviction. By contrast, successful DDP completion will not terminate an outstanding chemical test refusal revocation.
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To be eligible for a conditional license, you must, among other things, be eligible for, and participate in, the Drinking Driver Program ("DDP"). You are only eligible to participate in the DDP every 5 years. Thus, if you receive a new DWI, DWAI or DWAI Drugs charge within 5 years of completing the DDP, you will not be eligible for either the DDP or a conditional license if you are convicted.
The DDP is comprised of 7 sessions. The sessions are held once a week, and last between 2 to 3 hours -- for a total of 16 hours. The DDP addresses traffic safety issues and how the consumption of alcohol and drugs relates thereto.
All participants in the DDP are screened for alcohol and/or drug abuse. If a potential problem is detected, you will be referred for further evaluation (which is done through a qualified private treatment provider of your choice). If such further evaluation determines that alcohol and/or drug treatment is recommended, you must complete such treatment before your full driver's license will be restored.
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Most people convicted of DWI, DWAI or DWAI Drugs are sentenced to attend a Victim Impact Panel. This is a program in which presentations are made concerning the harm caused by, and the impact of, driving while intoxicated. The presentations are generally made by people who have lost friends and/or family members as a result of alcohol-or drug-related accidents.
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If you are caught driving while your driver's license is suspended or revoked for DWI, DWAI, DWAI Drugs, Zero Tolerance or refusing to submit to a chemical test, you will be charged with the crime of Aggravated Unlicensed Operation of a Motor Vehicle ("AUO"). If you do so while committing a new act of DWI, DWAI or DWAI Drugs, you will be charged with felony AUO.
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If you are convicted twice of DWI or DWAI Drugs involving accidents where physical injury resulted (including physical injury to yourself), your driver's license will be permanently revoked.
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Where a Court fails to impose, or incorrectly imposes, a license suspension or revocation for a DWI, DWAI or DWAI Drugs, the Department of Motor Vehicles is required by law to fix the mistake, and to impose the correct suspension/revocation.
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