Appeal
of denial of your application to restore your license after a DWI revocation
You were arrested for DWI in NY; you went to court,
went through the system, were found guilty after trial or entered a plea,
your NYS license was revoked, you completed your classes and counseling, and
made an application to get your license back. However, instead of giving you
your license back you were handed pages and pages of your driving history
going back up to 25 years and an unintelligible reason why they are not restoring
your driving privileges. Now you are here. You have come to the right place.
In 2012 New York upgraded their re-licensing after
DWI revocation rules. New York State is now reviewing your driving history
going back at least 25 years to determine whether they will give you your
license back. If the NYS DMV has denied your application to restore your license
it’s a problem but we can help you.
The serious problems to getting your driving privileges
restored after a revocation begins when you attempt to get your license back
after a 3rd alcohol related incident. There may be either a 2 or
5 year waiting period, and then a period where you can only operate a vehicle
that has an interlock and only restricted privileges for a period of time
before regaining unrestricted privileges. Upon a 5th DWI conviction
you will be permanently banned from having a driver’s license in New York
State.
Getting your license back after denial of restoration
– a multi-step process
If you have hit this page and have not yet tried
to appeal the decision yourself – DON’T! First off, the appellate
process the papers indicate is very misleading. Understand that you are dealing
with an administrative agency and bureaucrats. If an appeal stating “…but
I really, really, really need my license back…” worked, they would
not have changed the regulations to begin with. You communicate with an administrative
agency in the language that they understand – within the regulatory discretion
and guidelines that they operate within.
First step – prior to appeal
The NYS DMV gives you 2 opportunities to challenge
a denial of restoration after a DWI or alcohol related incident caused a revocation.
You can make an immediate appeal to the NYS DMV appeal’s bureau, or you can
re-submit your application with new, different, or updated evidence. In addition
to the denial, The DMV gives the motorist a thumbnail sketch of your prior
driving history that is preventing a restoration. The historic convictions
may have even occurred out of NY State.
The first thing our office does is review your
official records from each state and compare them to what the NYS DMV is relying
upon. Often times the NY Department of Motor Vehicle examiner misinterpreted
the records as fitting into the requirements for denial.
A second problem we often uncover is that the underlying
courts often mis-record with the NYS DMV your actual conviction. For example,
you may have been charged with a 25 MPH speeding, which is a “serious violation”
justifying denial of restoration in consideration of the totality of your
record, however you had entered a plea to the lesser charge of a parking ticket,
which is not a serious violation. Another common problem is that when someone
is charged with NY DWI they are often charged with 2 counts, but are found
guilty or enter a plea on 1 count. However, the local court incorrectly advises
the NY DMV that you were guilty of 2 counts. When we find these errors we
contact the original court and have them fix the record with the NYS DMV.
This fix often brings you within the regulatory scheme to allow an immediate
restoration of your driving privileges.
Sometimes however the record is accurate. In those
cases we look for the easiest item or items on your driving history to go
back to the court or courts of record(s) and move the court to vacate a plea
to charge or charges previously entered and enter a plea that would be outside
of the regulatory scheme which is preventing your driver’s license restoration.
If none of that would work, there is still hope.
Even though the new regulations are extreme, there are exceptions to the rules.
The New York State Department of Motor Vehicles can deviate from the policy
if the motorist shows “…unusual, extenuating and compelling
circumstances…” Just declaring that you need your driver’s license
does not work. There are standards in the law to grant a hardship license
and ways an applicant proves the hardship. This must be supported with evidence
extrinsic of what the motorist states in self serving fashion. The evidence
required varies situationally, however we are experienced in hardship applications
and know how to put the best evidence forward.
So the first step is to re-apply with either a
corrected record or evidence of exception to the rules. If the application
is granted the job is done; if it is denied then we go onto the second step.
Second step – appeal to the NYS DMV appeal’s unit
If your best application is denied then you have
no choice but to appeal to the DMV’s appeal’s unit. The DMV’s appeal unit
cannot hear or consider new evidence, only review the decision
based on the evidence below. This is why it is so critical to retain counsel
to make your application below; because you are stuck with the record you
made to get your NY driver’s license reinstated after DWI revocation. If your
internal DMV appeal is granted then you are done. If not, you need to proceed
to the third step.
Third step – appeal to the New York State Supreme
Court
After all administrative remedies are exhausted
your denied application for restoration of appeal after a DWI revocation is
ripe for review in a court of law. This authority for this is found in New
York’s Civil Procedure Laws and Rules (NY CPLR) § 7800 – 7806, Proceeding
Against Body or Officer, or informally known as an “Article 78 Proceeding.”
At its core, an Article 78 proceeding is an appeal to a court of law of an
administrative decision. What a court is permitted to consider in an article
78 proceeding are:
·
Whether there was a failure to perform a duty
·
Whether the administration proceeded without or in excess of jurisdiction
·
Whether the decision was made in violation of lawful procedure, was
affected by an error of law or was arbitrary and capricious or an abuse of
discretion.
·
Whether a determination made as a result of a hearing held where
evidence was taken is supported by substantial evidence.
Why
hire a lawyer to do this?
Simple – to prevail. Now, no lawyer can guarantee
you a result. However, we can do it correctly so that you have the best opportunity
at prevailing in getting your NYS driver’s license restored after a restoration.
To do this correctly we may have to:
·
Correct
records
·
Move
to have convictions set aside
·
Gather
evidence to assert for the hardship exception
·
Make
an application or re-application
·
Make
an appeal to the DMV
·
Bring
an Article 78 proceeding to the Supreme Court
This work is very technical and not many attorneys
know how to do it correctly. So it is quite understandable that you would
not have an understanding of the process and procedure either. This is why
you should retain counsel to represent you through this process.
