Relicensing after alcohol related revocations in NY State

Effective October 15, 2012 New York enacted new re-licensing after revocation rules, codified in New York Code of Rules and Regulations 15 NYCRR § 136.5. The new regulations specifically target motorists who are repeat, recidivist drinking and driving offenders. It is no longer a foregone conclusion that, at the end of a NY DWI / DWAI revocation you will automatically get your driving privileges back. These regulations are now the toughest in the nation for having a license restored after a DWI conviction.

Under the old regulations the NYS DMV reviewed an application for restoration after revocation for a New York driving while intoxicated or a NY driving while ability impaired (DWAI) incident in the vacuum of just that incident without regard to the totality of your driving record. This is no longer the case. Now, the New York State Department of Motor Vehicles conducts a “lifetime look back” of the entire driving history upon  application for restoration after revocation. Further, the review not just for a DWI crimes and infractions, but includes “alcohol related incident,” such as chemical test refusals and “per se” findings of alcohol consumption for under 21 at the time of the finding. A complete explanation of the changes and definitions are below, but in a nutshell the changes are:

1st time application for restoration	No Changes
2nd time application for restoration	If a prior alcohol incident within 25 years, full driving privileges cannot be restored upon completion of the NYS DDP. The applicant must wait out the entire 1 year revocation period
3rd & 4th applications for restoration when applicant is not under revocation for alcohol related incident	If applicant is currently revoked for non alcohol or drug related incident  and within the last 25 years applicant has 3 or 4 alcohol related incidents and no additional driving offenses defined as “serious” (see below), said application will be denied. Applicant and can re-apply after a 2 year waiting period. Upon approval applicant is eligible for a 2 year restricted use license, after which period applicant can apply for full driving privileges
3rd & 4th applications for restoration when applicant is revoked for an alcohol related incident	If applicant is currently revoked for an alcohol or drug related incident and has 3 or 4 alcohol related incidents but no serious driving offenses within the last 25 years, upon making application applicant will be denied and can re-apply after a 5 year waiting period. Upon approval applicant is eligible for a 5 year restricted use license and must install an ignition interlock on any vehicle owned or operated by applicant. After the 5 year period applicant can apply for full driving privileges

3rd & 4th applications for restoration when applicant has serious offenses	If within the last 25 years applicant has 3 or 4 alcohol related incidents and in addition has at least one serious driving offense the NYS DMV must deny the application
5th application for restoration	Permanently ineligible for a license in the State of NY
Miscellaneous	If twice convicted of VTL 1192(3), VTL § 1192(4), VTL § 1192(4-a) and in each instance there was an accident with injury, permanent ineligibility for a license in New York State

Why these sweeping changes?

In his September 25, 2012 press release, Governor Andrew Cuomo stated that the new regulations were enacted because 17,500 licensed NY drivers who already have three or more alcohol-related convictions have been causing mayhem on the streets. According to the governor’s statistics, those 17,500 motorists:

·        Have been involved in at least one crash that injured or killed someone after those convictions

·        Have been involved in over 22,000 crashes that injured or killed someone, and

·        Resulted in over 500 fatalities.

Governor Cuomo touts these new regulations as:

“[A] multi-pronged initiative to keep drivers with a history of repeat alcohol…convictions off the road…[T]he…new regulations…will give New York among the toughest protections in the nation against drivers who persistently drive under the influence of alcohol or drugs…”

The Governor’s office has estimated that, as a result of the new DMV regulations, an estimated 20,000 drivers will have their licenses permanently revoked or delayed this year.

Restoring your NY driving privileges after revocation and keeping you on the road

These new regulations are problematic, apply after the fact to all of those you have had any type of alcohol related conviction or breathalyzer refusal in the past 25 years, and will likely pass constitutional scrutiny. However, there is a lot we can do to work with the NYS DMV within the

regulatory scheme in order for you to have your NY driving privileges restored and maintained.

The devil is in the details, and the special rules for applicants with multiple alcohol or drug related driving convictions or incidents have been codified in Section 136.5 of the NYS DMV rules and regulations.

Definitions of Section 136.5 - 15 NYCRR § 136.5(a)

Alcohol- or drug-related driving conviction or incident means:

·        A conviction of a violation of section 1192 of the Vehicle and Traffic Law (driving while intoxicated or driving while ability impaired)

·        A finding of a violation of § 1192-a of the VTL (under 21 per se)

·        A conviction of an offense under the Penal Law for which a violation of § 1192 of the VTL is an essential element, or

·        A finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law, not arising out of the same incident.

Serious driving offense means:

·  A fatal accident

·  A driving-related Penal Law conviction

·  Conviction of two or more violations for which five or more points are assessed on a violator's driving record (reckless driving, VTL § 1212, passing a stopped school bus, VTL § 1174, speeding 21 MPH or more over the limit, VTL § 1180) ; or

·  20 or more points from any violations.

Revocable offense means:

·  The violation, incident or accident that results in the revocation of the person's driver’s license and which is the basis of the application for relicensing.

Upon reviewing an application for relicensing, the commissioner shall review the applicant's entire driving record and evaluate any offense committed between the date of the revocable offense and the date of application as if it had been committed immediately prior to the date of the revocable offense.

New NY State regulations for approving or denying applications

to reinstate driving privileges after revocation

Automatic Denials

Under these new regulations the NYS DMV must now conduct a lifetime review of a motorist’s driving history for reinstatement. The application must be denied if the lifetime review reveals shows that:

·  The applicant has five or more alcohol or drug related driving convictions or incidents in any combination within his or her lifetime

·  The applicant has more than two and less than five alcohol or drug related driving convictions or incidents within the past 25 years preceding and, in addition, has one or more serious driving offenses within the 25 years preceding the date of the revocable offense

·  The applicant is twice convicted of VTL 1192(3)(driving while intoxicated), VTL § 1192(4) (driving while ability impaired by drugs), or VTL § 1192(4-a) Driving while ability impaired with a combination of drugs and alcohol where physical injury has resulted from such offense in each instance

Extended revocation periods

 An applicant’s application for reinstatement shall be delayed for a period of at least 5 years if the lifetime review of the applicant’s record indicates that:

·  The applicant has more than two and less than five alcohol or drug related driving convictions or incidents within 25 years, no serious driving offenses within 25 years; and the person is reapplying from revocation of an alcohol or drug related driving conviction or incident.

Under the new rules, after such delay period the applicant can re-apply for re-licensing. Upon approval, full driving privileges are not restored. Rather, the motorist will be entitled to a restricted, limited use license and the requirement that the motorist installs an ignition interlock on any motor vehicle owned or operated by the motorist for five years thereafter. Further, if during the 5 year restricted use period the motorist’s license is revoked for an alcohol or drug related conviction, the motorist will be thereafter ineligible for any type if operator’s license.

An applicant’s application for reinstatement shall be delayed for a period of at least 2 years if the lifetime review of the applicant’s record indicates that:

·  The applicant has more than two and less than five alcohol or drug related driving convictions or incidents within 25 years and no serious driving offenses within 25 years; and the reapplication is from a non alcohol or drug related revocation.  

The application shall be denied for a period of at least two years, after such waiting period the applicant can re-apply for re-licensing. Upon approval of said application, full driving privileges are not restored. Rather, the motorist will be entitled to a restricted, limited use license, but with no ignition interlock requirement, for a period of two years. In the event that the restricted use license is later revoked for a subsequent alcohol or drug related driving conviction or incident, such person shall thereafter be ineligible for any kind of NY license to operate a motor vehicle.

Upon a second conviction of an alcohol- or drug-related driving conviction or incident within the 25 years preceding the date of the revocable offense, the DMV may approve the application after the minimum statutory revocation period is served.

Rights upon a denial of reinstatement after revocation

Under the new regulations a motorist who is denied reinstatement after revocation has the right for the grounds for the denial to be set forth in writing and a copy transmitted to the applicant. Further, the applicant has a right to make an appeal of the denial to the DMV administrative appeals board. The appeals board cannot consider any information that was not submitted by the applicant on the initial application that was denied. Nonetheless, if a motorist failed to support his or her application with relevant material the motorist can make a new application with the relevant material.

Why you should consider utilizing a lawyer to make your application

or appeal to reinstate your driving privileges after revocation

Before making the application, our office will thoroughly review your driving record for accuracy. This includes out of state violations that have been recorded on your NY DMV history. Often times prior violations are mis-recorded. For example, you may have plead guilty to a parking ticket on a plea in a small court Onondaga County 10 years ago, but the clerk reported it to the DMV as a plea of guilty to the speeding charge of 26 MPH over the limit by mistake. Such a mistake is easy to fix BEFORE you make your application for reinstatement. Often times, the local courts record your one DWI or DWAI conviction as two convictions in error. This too can be repaired prior to making the application.

Second, while the regulations are tough, there are exceptions written into the rules. The regulations specifically state that:

“…[T]he commissioner [DMV] shall not be foreclosed from consideration of unusual, extenuating and compelling circumstances that may be presented for review and which may form a valid basis to deviate from the general policy…in the exercise of discretionary authority granted under section 510 of the Vehicle and Traffic Law…” 

Now, before you get excited and think you can do this on your own, I have to warn you that “I really, really, really, need my driver’s license because [full in the blank]” will NOT work. If it were that easy, they would not have enacted these tough regulations to begin with. Understand that whether or not you think it is fair, if you fall into this category it is YOU that the New York State wants permanently off of the road.

There is a certain way one communicates with an administrative agency. You communicate with an agency with an understanding that they have broad discretion and that the only way a court can overturn a decision of their decision is if it is arbitrary, capricious, or an abuse of discretion.

In the context of considering whether your case falls into the category of extenuating and compelling circumstances, the applicants unsupported self serving assertions are meaningless. The way you do that is prove it through 3^rd party evidence in admissible form.

Further,  we review the regulations in their entirety to see what, in other contexts, the DMV deems there to be unusual, extenuating and compelling circumstance. Such regulatory framework is found in the plain language of the regulations at 15 NYCRR § 136.1. Under the regulation, the DMV’s primary concern is that of public safety to highway users. Further, The DMV is directed to utilize its own driver improvement programs to rehabilitate and educate “problem drivers.” Further, there is a presumption that the involved driver would present a danger to himself and others if highway use is allowed.

A person is deemed a problem driver when they had a revocation or revocations due to a series of convictions, incidents and/or accidents and upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways. Another way of being a problem driver is if the applicant has a history of abuse of alcohol or drugs, consisting of a record of two or more incidents, within a 10-year period. For these drivers, rehabilitative effort must include treatment by an agency certified by the Office of Alcoholism and Substance Abuse and/or agents authorized by professional license or professional certification and evidence of abstinence from alcohol and/or drugs for a period of time sufficient to indicate that such person no longer constitutes a danger to other users of the highway.

So clearly bring to the DMV evidence of ongoing substance abuse counseling through either the DMV or a counseling organization they recognize is key in getting your driving privileges back sooner than the regulations allow.

Other techniques to re-instate your driving privileges

The evaluation begins with a good understanding of your criminal alcohol related convictions, a particular serious offense conviction, or several courts if your serious offense is predicated on a total of 20 or more points or several convictions. Correcting the record to remove erroneous convictions is one thing. However, going back to the courts where you were correctly convicted and making a motion to vacate archaic convictions is another thing to be considered. Such an application is allowed under NY Criminal Procedure Law § 440 – post judgment motion to vacate a conviction. Under that law, a trial court has broad discretion to vacate and set aside a criminal conviction.

Lastly, if the DMV fails to reinstate your driving privileges after your administrative appeal, your only recourse left would be to proceed into NY Supreme Court under CPLR § 7801 - § 7806, commonly called an “article 78 proceeding.” In short, this is where the supreme court reviews the entirety of the administrative action of the administrative agency, in this case the New York State Department of Motor Vehicles. The Supreme Court acts as an appellate court and, if they find error, order the agency to reverse their decision. However, the Supreme Court can only review from the record below. This is why it is so important to retain counsel to make these applications for you before the DMV and the Supreme Court.