Aggravated Unlicensed Operation in the SECOND Degree in New York
As DWI defense attorneys in Ithaca and the surrounding Finger Lakes Region of upstate New York, we see all kinds of charges associated with DWIs. Some very common charges are AGGRAVATED UNLICENSED OPERATION in the 3rd, 2nd, or even, 1st degree.
What is Aggravated Unlicensed Operation or otherwise known as ("AUO") in New York?
Answer: It is driving when your license is revoked or suspended in NY. It's just that simple.
This article is about AUO in the SECOND Degree... but let's give some context about the other AUO degrees.
-AUO 3rd -- this is for driving on a first time license suspension --it is a B misdemeanor in NY. Possible sentences include: $200-$500 in fines, up to 30 days jail, and fees. If convicted, you will have a permanent criminal record in New York. That's why any AUO is a serious offense that must be defended.
*There is no expungement of criminal records in New York! A criminal conviction is there for LIFE.
How can you be charged with AUO 2nd?
- If you are convicted of a prior AUO in the past 18 months;
- If your current suspension/revocation is based upon a REFUSAL to take a chemical test;
- If your current suspension/revocation is based upon a conviction of a DWAI (alcohol), DWI, DWAI drugs or any other drunk/drugged driving offense (including the under 21 ZERO TOLERANCE ticket VTL 1192a);
- If your suspension was before a pending DWI or DWAI drugs case sentenced (suspension pending prosecution);
- If you were suspended/revoked on three or more separate dates.
As you can see, there are MANY ways to charge this crime.
However, the possible sentences change based upon the REASON you are charged with AUO 2nd.
What's the worst thing about an AUO 2nd degree?
*Mandatory JAIL or Probation sentence!
If the underlying license suspension was for anything ALCOHOL or DRUG related, (i.e. a conviction for a DWAI alcohol or DWI or DWAI drugs or Refusal), then the Court is required by law to impose EITHER:
Jail (minimum 7 days! up to max 180 days) or
Probation (period up to 2 or 3 years) [probation is worse than jail in New York!]
That's pretty harsh. If convicted of this crime, the Judge has very little flexibility on what sentence can be imposed. The state legislature has made it clear.
*There are also mandatory fines of minimum $500 to $1000.
*The court also MUST include a course of drug/alcohol treatment for anybody convicted of this crime with an underlying alcohol or drug related offense.
HOW DO WE DEFEND THIS CRIME?
Unlike an AUO 3rd (which is a first offense) for driving on a suspended license, this charge is inherently harder to defend because the charge itself tells the Prosecutor and Judge that you did NOT learn your lesson.
Due to the harsh sentencing requirements for an AUO 2nd conviction, I generally do everything I can to negotiate some kind of plea that involves pleading guilty to a DIFFERENT crime.
If you plead guilty to a different misdemeanor, then the Judge and Prosecutor have less restrictions on what the sentence can be. No other criminal charge has MANDATORY Jail or Probation sentences. That's why it makes sense to try to get the Prosecutor to agree to a plea of guilty to a different charge. They have the power to change it --but the Judge also has to agree.
If there was some lack of knowledge of the underlying license suspension/revocation, that is another way we try to defend. Unfortunately, in my experience, most Judges and Prosecutors do NOT believe that you "didn't know" about a suspension when a DWI or associated charge is involved (including Refusals and Zero Tolerance suspensions).
Sometimes the "I didn't know my license was suspended" defense is viable when the AUO 2nd charge is based upon 3 or more suspensions on 3 separate dates. Otherwise, it is usually not believable.
AUO 2nd is one of the worst charges to get because it truly limits the arguments that can be made on a Defendant's behalf. If you are charged with this serious crime, you absolutely must retain an attorney. The stakes are very high and possible JAIL or PROBATION sentences are looming. [Remember Probation means closely monitored supervision for up to 3 years --no drinking, no privacy, drug tests, permission before you move, permission before you get your license back, etc]
If you are charged with AUO 2nd or have questions about an AUO charge of any degree, Call us: 607-229-5184