DWI ARRESTS IN NEW YORK
DWI Arrest and License Suspension
If you are arrested for violation of VTL section 1192, commonly known as DWI or DUI, you will also have your driver’s license suspended. The amount of time your license is suspended will depend on the charges against you. This will often present problems for you in that it will interfere with your ability to travel to and from work, school, medical appointments or child care. In these situations an attorney should make an application for a hardship privilege at the first court appearance.
Suspension, Hardship Privilege and Conditional License
In most DWI cases, a your driver’s license will be suspended at arraignment. If you took a chemical test (Breathalyzer, Blood or Urine), which showed a blood alcohol level (BAC) of 0.08% or greater, the judge will suspend your license, usually at arraignment (VTL 1193 (2) (e) (7). “Suspension” means the driver’s license, permit or privilege to drive is taken away for a period of time. After 30 days, you may be eligible for a Conditional License.
In the interim period between the Suspension and awarding of a Conditional License, you may be eligible for a “Hardship Privilege”. In order to be eligible for this Hardship Privilege, the court must find “extreme hardship” (See “Obtaining a Hardship Privilege” below). This hardship hearing will usually take place at the first court appearance following arraignment, which is within two weeks or less of your arrest.
Refusal and Revocation
If you refused a chemical test (Breathalyzer, Blood or Urine), you will NOT be eligible for a hardship privilege. Your license will be suspended until you have a chemical test refusal hearing. Depending on the outcome of the hearing, your license will either be restored or revoked for one year. “Revocation” means your license, permit or privilege to drive is voided; it no longer exists. To get a new license, or permit you must re-apply to DMV once the revocation period is over.
If you did not submit to a breath test but had blood taken, your license will probably not be suspended at arraignment because the DA will not yet have the test results. In this scenario your license will more likely be suspended on the first court appearance, assuming the test results show a BAC of .08 or greater.
Obtaining a Hardship Privilege in a DWI case
During the 30 days before you are eligible for a Conditional License, you may be eligible for a “Hardship Privilege”. The hardship privilege provides the driver with a very limited right to drive in NY. To be eligible for a Hardship Privilege, you must have had a valid license prior to the suspension date, and you are NOT charged with a refusal to take a chemical test. To get such a privilege, the court must find that there is an “extreme hardship” in finding alternative means of travel to and from work, medical appointments, and/or school.
VTL 1193 (2) (e) (7) (e) 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 trave to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate.”
How Do I Apply for a Hardship Privilege?
Following arraignment, a hearing for hardship privilege will be held. The judge may either conduct a formal hearing to determine hardship privilege or ask the driver’s attorney to articulate the elements detailed below to establish the privilege.
At the hearing, you will likely testify about the circumstances of your commute and the alternative options you researched. You should also have the following proof with you:
- Documentation establishing:
- home address, (driver’s license, utility bill)
- work address (paystub)
- Proof of salary (paystub)
- Court document completed to include the times and locations of your commute
- Testimony or Information on:
- bus travel, with pricing (Too expensive/not feasible)
- train travel, with pricing (Too expensive/not feasible)
- cab or taxi fare (Too expensive/not feasible)
- driving responsibilities relative to work, school, medical, etc.
- no family, friend, co-worker available to car pool
*A hardship privilege will not allow you to drive a commercial vehicle.
** The hardship privilege is only available to drivers who do not have a prior conviction for DWI or DWAI in the past 5 years.
*** Some judges require testimony of an independent witness to corroborate travel circumstances.
Pre-Conviction Conditional License
Once the suspension following the DWI arrest is pending for 30 days, DMV will notify the you of your right to apply for a “Pre-Conviction Conditional License”, which is somewhat more flexible that the Hardship Privilege. It affords the driver the right to drive to and from work, school, medical appointments, court and may include additional freedom beyond those circumstances.
What to do if you are arrested and charged with DWI
If you are arrested and charged with DWI, keep in mind that a refusal to take a chemical test will result in the revocation (not suspension) of your license. A chemical test refusal will render you ineligible for a hardship privilege or conditional license. Immediately request an attorney. If the police continue to ask you questions, do not answer their questions and repeat your request for an attorney. Any information you provide to the police following your arrest for DWI could negatively impact your case.
If you have any questions or concerns about DWI, whether to submit to a chemical test, license suspension, revocation, conditional license or hardship privilege, please call The Law Offices of Creedon & Gill PC at 631-656-9220.