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New Administrative Penalties for DWI/DUI in New York

Posted by attorney Joseph Petito

A lot of my clients have asked me to simplify the new DWI administrative penalties, effectuated by the New York Governor. Here it is in a nutshell. Albany has passed some major DMV licensing rules this past September. These rules could have a dire effect on those convicted of DWI’s and DWAI’s.

In a nut shell, the DMV has created a 25 year look back procedure, which will determine whether a motorist who has received a revocation for an alcohol related operating event should be re-licensed. Though this new procedure is in its infancy, some important information can be gleaned from the new regulations.

Beginning first with subdivision [c] of section 2.2, a new paragraph called Problem Driver Restriction has been added. This allows the DMV to impose restrictions on individuals deemed to be a problem driver. In that regard, it allows them to impose an ignition interlock requirement for a substantial period of time. For the most part, this will be utilized when the DMV, in their discretion permits a motorist with three or four alcohol or drug related operating offenses to be relicensed.

Section 132.1 is the enabling section of the new regulations. It defines a dangerous repeat alcohol or drug offender-for which the regulations apply. This section includes every violation under the vehicle and traffic law section 1192 (alcohol related offenses), in addition to refusals to submit to a chemical test—exclusive of an 1192 conviction. A dangerous offender is an individual whom has five or more alcohol or drug related convictions or incidents in any combination in his or her life time.

Subdivision (b)(2) also includes drivers who have four or more alcohol or drug related convictions or incidents in any combination and one or more “serious driving offenses" within the past 25 years. A serous driving offense is defined as fatal accident with no attribution of fault, a driving related penal law conviction, conviction of two or more high point driving violations—other than one which forms the basis for the review, 20 or more points from any violations other than the violation that forms the basis for the review. Further, a high point driving violation is one where five or more points may be assessed.

Procedurally, once the DMV receives information that an individual fits within the dangerous repeat alcohol or drug offender category, they will issue a proposed revocation notice. Any individual who receives this notice shall have a right to a hearing, to contest the proposed revocation. The burden at the hearing requires a showing of “unusual, extenuating and compelling circumstances.

The new regulations also modify an individual’s right to obtain their full driving privileges after a DWI or DWAI conviction. Previously, when an individual has finished the DDP program, the DMV rescinded the remaining portion of the revocation or suspension. However, if the individual has two or more alcohol or drug related driving convictions or incidents within 25 years from the date of the program, they are ineligible for restoration of full driving privileges. Simply put, the individual would have to ride out the full suspension or revocation.


If an individual has five or more alcohol or drug related operating indents, they will be permanently denied licensing. If an individual has three or four alcohol or drug related incidents and one serous driving offense, he or she will be deemed a persistently dangerous driver, and receive permanent denial unless the individual can establish unusual and compelling circumstances.

The next two categories and consequences depend on the basis of the immediate revocation. If the revocation occurs because of an alcohol related offense or incident, and the individual has three or four alcohol related offenses, which precede the date of the revocable offense, the individual shall be denied licensing for a period for five years in addition to the statutory revocation. These individuals will also be subject to an interlock requirement for an additional five years.

Conversely, if the revocation occurs for a non-alcohol related operating offense, or the incident and the driver has not been found to have committed a serous driving offense, but has three or four alcohol related operating offenses or incidents prior to the date of the revocable offense, then licensing will be denied for a period of two years in addition to the statutory period. Further, they will be subject to a restricted license for a two year period.

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