Free Book
The Law Office Of
Lawrence Newman
Library
Practice Areas
Blog
Free Evaluation
Begin your case review by filling out the form below or call us 24 Hours a day at 1-607-229-5184.
Lawrence Newman, DWI Lawyer
504 N. Aurora Street
Ithaca, NY 14850
Phone: (607) 229-5184
Fax: (866) 381-3122
Name:
Phone:
Email:
Tell Us More:
Questions
Copyright ©2009, Lawrence Newman, Attorney At Law. All Rights Reserved. Website Design By Ithaca Website Design. Site Map
Call Today
(607) 229-5184
Fax: (866) 381-3122
Local, Focused, and Personal Representation
THE DWI WITH A BAC > .08
DMV LICENSE SUSPENSION
HARDSHIP LICENSE
When you are arrested for a DWI, there are actually two different processes working against you at the same time: One is the criminal case, and the other is the DMV license suspension or DMV revocation process.
DMV LICENSE SUSPENSION
I was arrested for DWI in New York. Is my license automatically suspended? It depends…
If you submitted to a chemical test of your blood (the most common method being a breath test) and "scored" .08 BAC or more, your license shall be suspended at arraignment. This is called a Suspension pending Prosecution (NY VTL §1193[2](e)(7)).
If you had a valid driver's license prior to the suspension pending prosecution and did not have a prior conviction for Driving While Intoxicated or Impaired, or complete the Drinking Driver Program within the proceeding five (5) years, you may be eligible for a conditional license after the expiration of 30 days. The conditional license will be issued by the Department of Motor Vehicles.
HARDSHIP LICENSE
If my license is suspended for a DWI, can I get a license to drive to work and/or school? It depends…An experienced DWI attorney can request a hearing to obtain a Hardship License.
Sometimes a driver may be eligible for a hardship license. The court which conducts your arraignment will decide your eligibility for this limited license. To be eligible, the court must determine that you will be subject to "extreme hardship" without this license. NY 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 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.
This license only allows the driver to operate their vehicle to and from their place of employment. It does not allow a driver to operate a vehicle for work.
NOTE: Under New York Law the hardship hearing must occur within 72 hours of the arraignment. In Tompkins County Courts, the Hardship Hearing is usually held in conjunction with the arraignment. An experienced DWI attorney must come prepared to prove your case to obtain a Hardship License.
THE HARDSHIP FACTORS
While the statute defines extreme hardship, it does not set forth a specific set of criteria for courts to consider when determining if a driver is eligible for the hardship privilege. In People v. Bridgman, 163 Misc2d 818, 622 NYS2d 431 (City Court of Canandaigua 1995), the court set forth eight factors that it believed should be considered when determining if extreme hardship exists.
There are Eight Factors Considered by the Court before awarding a Hardship Driving Privilege
These factors are:
1. the presence or absence of licensed persons present in the licensee's household;
DO YOU LIVE ALONE OR WITH PEOPLE WITHOUT CARS OR DRIVER’S LICENSES TO DRIVE YOU?
2. the ability of other licensed household members to provide transportation for the licensee;
CAN THESE PEOPLE BE AVAILABLE TO DRIVE YOU WHEN YOU NEED THEM FOR SCHOOL, HEALTHCARE, AND/OR WORK?
3. the occupation and health condition of the licensee;
WHAT ARE YOUR JOB DUITES AND WHEN MUST YOU BE THERE?
HOW IS YOUR HEALTH? DO YOU HAVE KNEE, BACK, OR HIP PROBLEMS?
CAN YOU WALK TO PUBLIC TRANSPORTATION?
4. the proximity of the licensee's place of employment, health care provider or school to his or her household;
HOW FAR FROM YOUR HOME IS YOUR JOB, MEDICAL CARE, OR SCHOOL?
5. 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;
DO YOU LIVE CLOSE TO PUBLIC TRANSPORTATION?
IS IT AVAILABLE THE TIMES WHEN YOU NEED IT?
6. a consideration of the licensee's ability to afford public transportation or taxi service as an alternative means of transportation;
CAN YOU AFFORD TAXIS AND BUSES?
7. the presence or absence of co-workers, friends or family members who may assist in the licensee's transportation; and,
DO YOU HAVE CO-WORKERS, FRIENDS, OR FAMILY THAT CAN DRIVE YOU TO MEDICAL CARE, WORK, AND/OR SCHOOL?
8. any other factor that the court deems appropriate to the determination.
NOTE: The hardship privilege is a temporary bridge of approximately 30 days until you can go to the DMV and make application for a conditional license.
Give Us A Call Today For Your Free Consultation!
(607)229-5184
Making Sense of New York’s 1192 DWI Laws
New York laws under which drivers are brought up on DWI charges also affect how New York Courts handle DWI cases. Some of the primary DWI NY Vehicle & Traffic Laws (VTL’s) are as follows:
(Vehicle & Traffic Law) VTL § 1192 –1
Driving While Ability Impaired by Alcohol (VTL 1192 (1)):
“Prohibits a person from operating a motor vehicle while the person’s ability to operate the vehicle is impaired by the consumption of alcohol. This charge is usually filed when an individual has more than .05 of one per centum but less than .08 of one per centum of alcohol in the person’s blood, as shown by chemical analysis of such person’s blood, breath, urine or saliva, or when evidence is not sufficient to charge a person with DWI. For a first time offense, which is considered a violation, the penalty is a fine of between $300 to $500, or 15 days in jail, or both. Penalties increase for those who have prior convictions. License suspension and revocation may also apply.”
(Vehicle & Traffic Law) VTL § 1192-2
Driving While Intoxicated (VTL 1192 (2)): Prohibits a person from operating a motor vehicle while such person has .08 of one per centum or more of alcohol in the person's blood, as shown by chemical analysis of such person’s blood, breath, urine or saliva. For a first time offense, which is deemed a misdemeanor, the penalty is a fine of $500-$1,000 or up to one year in prison, or both. Penalties increase for those who have prior convictions. License suspension and revocation may also apply.1
(Vehicle & Traffic Law) VTL § 1192 (2-a) Aggravated Driving While Intoxicated, Per se takes place when a driver operating a vehicle “while such person has .18 of one per centum or more by weight of alcohol in such person’s blood, breath, urine or saliva.” This is a misdemeanor, punishable by a fine of “not less than $1,000 nor more than $2,500” or a maximum jail term of up to one year, 3 years probation or a combination of all three. License revocation will apply.
Driving While Intoxicated/Common Law (VTL §1192(3)) states that, "No person shall operate a motor vehicle while in an intoxicated condition." This is referred to sometimes as a Common Law DWI. No breath test is needed, only the officer’s opinion based on attributable facts. This is usually based on the officer’s observation (defendant’s speech, driving, odor of alcohol, sobriety test, etc.) his experience and training. For a first time offense, which is deemed a misdemeanor, the penalty is a fine of $500-$1,000 plus a surcharge or up to one year in prison, 3 years probation or a combination of all three.
DWAI Drugs (VTL § 1192 (4-a)) when a “person’s ability to operate… (a) motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.” This is a misdemeanor punishable by a fine “of not less than $500 nor more than $1,000” or a maximum jail term of one year, probation or a combination of all three.
