is one of only four lawyers
in the entire State of New York
who have been Board Certified as
Specialists in DWI Defense Law by the
National College for DUI Defense ("NCDD").*
Peter served as Dean of the
National College for DUI Defense
the only organization in the
United States that is accredited by the
American Bar Association to certify
attorneys as specialists in DWI law.
If you are charged with DWI, you should be aware of several statutes which, if applicable, call for the mandatory and/or permissive suspension of your driver’s license while the case is pending. The first statute — the so-called “prompt suspension law” — is applicable to a person who is charged with DWI and who is alleged to have had a BAC of .08% or more at the time of his or her arrest.
A second statute is applicable to a person who is charged with DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence and who either (a) has been convicted of any violation of VTL § 1192 within the past 5 years, or (b) is charged with Vehicular Assault or Vehicular Homicide in connection with the current incident.
A third statute is applicable to a person who is charged with DWAI, DWI, DWAI Drugs or DWAI Combined Influence and who is alleged to have refused to submit to a chemical test.
Since suspension pending prosecution generally takes place at arraignment, and since there may be legitimate defenses to such suspension, it is critical that you consult an experienced DWI attorney prior to your first Court appearance.
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A conditional license allows you to drive:
To be eligible for a conditional license, you must be eligible for, and participate in, the Drinking Driver Program (“DDP”). 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 therefore.
DMV will not issue you a conditional or restricted use license until your DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction has been entered into the DMV computer (assuming you are eligible for one). 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.
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. This is especially critical with the new DMV regulations dramatically increasing the sanctions for drivers with repeat alcohol – and drug-related offenses.
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), or you have been convicted multiple times in the past of alcohol- and drug related offenses.
A critical exception to the general rules provided in this section is that, if you enroll in and successfully complete the Drinking Driver Program (including all required alcohol and/or drug treatment), DMV will terminate any outstanding suspension/revocation resulting from a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction unless (a) you are under 21, (b) you possess a Commercial Driver”s License, or (c) you were also revoked for refusing a chemical test, or (d) you have a prior alcohol-or drug-related driving conviction within the preceding 25 years.
To be eligible for a conditional license, you must, among other things, be eligible for, and participate in, the Drinking Driver Program (“DDP”), and not have any VTL § 1192 convictions within the past 5 years.
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.
Most people convicted of an alcohol-related offense 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.
If you are caught driving while your driver’s license is suspended or revoked, you will be charged with the crime of Aggravated Unlicensed Operation of a Motor Vehicle (“AUO”).
If you are convicted twice of DWI, DWAI Drugs or DWAI Combined Influence involving accidents where physical injury resulted (including physical injury to yourself), your driver’s license will be permanently revoked.
Where a Court fails to impose, or incorrectly imposes, a license suspension or revocation for a DWI-related offense, the Department of Motor Vehicles is required by law to fix the mistake, and to impose the correct suspension/revocation.
Author of Handling the DWI Case in New York
Considered a standard reference for the defense of Driving While Intoxicated cases. (Published by Thomson/West)
Peter Gerstenzang, Esq.
Gerstenzang, Sills, Cohn & Gerstenzang
210 Great Oaks Boulevard
Albany, New York 12203
Phone: (518) 456-6456
Fax: (518) 456-6056
Cell: (518) 441-7011
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