Legal advice on Out of state DUI

Charged with DWI in New York, Will I lose my License?

The short answer is, yes.

Generally speaking, your license is going to be suspended at the time of your first court appearance ("your arraignment"). The suspension most often used by the judge is what is commonly referred to as, "The Suspension Pending Prosecution".

The law in New York State allows for the arraigning judge to suspend your license if he/she has reasonable cause to believe your Blood Alcohol Content (or BAC) was a .08 at the time you were driving. A good DWI Attorney will argue the court has no right to suspend your license, if the Court does not have a chemical test result, and you do not have a prior alcohol conviction.

Since you may not be able to drive after the court appearance, there are two (2) things need to know to do prior to your court appearance. The first thing to do is to bring a person with you to drive you home from Court. The second thing you should do is have your attorney prepare an application for hardship driving privileges. Knowing these two (2) things will save you from being stranded at the courthouse without a ride, and help you retain some of your driving privileges going forward.

So, how will you get to work?

Your lawyer can ask for what's called hardship driving privileges, which are going to allow you to drive to and from one (1) work location and/or some previously scheduled medical treatment.

A good DWI Defense Lawyer will argue that the suspension pending prosecution will result in “Extreme Hardship” to you, if the factors of your situation lend themselves to the argument. If the judge agrees, he/she may grant you what is commonly referred to as "hardship driving privileges". Hardship driving privileges allow you to drive to and from one (1) work location and some specified medical treatments. The Court may approve a hardship application prepared with documents attached, without a hearing. If the Judge requires a "Hardship Hearing" it must be held within three (3) business days of your arraignment.

At the Hardship Hearing, your attorney must demonstrate extreme hardship and may not rely on your testimony alone. He must bring proof of where you live, work, or go to school, etc. It is helpful if you have a friend, relative, or employer who can confirm this information. The factors considered by the Judge at the Hardship Hearing are: the people who can drive you, your occupation/health condition; the closeness of your job, any doctor or school you need to go to, the presence of public transportation, and other factors the Court deems appropriate.

It may also be helpful for you to know that about thirty (30) days after your arraignment, you may be eligible for what is commonly referred to as a “pre-conviction conditional license.” If you need to drive from place to place for work, this license could save your job. But what if you have to drive for work?

About twenty (20) to thirty (30) days after your first court appearance, you may be able to go to the DMV, if you're eligible, and get what's called a pre-conviction conditional license. The pre-conviction conditional license gives you more driving privileges than hardship privileges. The pre-conviction conditional license will allow you to drive for purposes of work and a bunch of other specified purposes.

If you receive a conditional license or conditional driving privilege, you may drive under the following circumstances: · to and from your place of employment · during the hours of employment if your job requires you to drive a motor vehicle · to and from a Motor Vehicle office to transact business regarding the conditional license or Impaired Driver Program (IDP) (previously known as Drinking Driving Program or DDP) · to and from a class or activity that is an authorized part of the IDP · to and from a class or course at an accredited school, college or university, or at a state-approved institution of vocational or technical training in which you are enrolled - a conditional license/driving privilege CANNOT be used to drive to and from a high school · to and from probation activities ordered by the court · during an assigned period of three consecutive hours between 5 am and 9 pm once a week - the assigned period will not be changed unless this privilege is amended · to and from a medical appointment that is part of necessary treatment for you or a member of your household - you must carry a written statement from your licensed medical practitioner as evidence, and show it to any police officer who asks to see it · to and from a child’s school/day care if the child’s attendance at the school/day care is necessary for you to maintain employment or enrollment to an accredited school, college or university, or at a state-approved institution of vocational or technical training* *taken from https://dmv.ny.gov/tickets/conditional-license

So those are good things that your lawyer's going to tell you about if you're charged with DWI and your license is suspended. Your license most likely will be suspended if you're charged with DWI. But there are some ways that a good DWI defense attorney can alleviate some of that pain of the suspension. It is to your benefit to find yourself a competent DWI defense attorney and understand that you know going in to court that you're probably going to lose your license. As a reminder, you may need a ride home from court that night. Be sure to seek your attorney’s assistance in obtaining a hardship privilege, and potentially a pre-conviction conditional license, if you are elligible.

This is not legal advice and is for general informational purposes only. Please consult a lawyer if you're charged with a DWI.

Tom Anelli & Associates is a statewide DWI defense practice focusing on solely on DWI Defense matters. Tom Anelli holds certifications in the Science of Evidential Breath Alcohol Testing, and is factory trained on the breath testing instrument most used by local law enforcement. He is also a NHTSA Certified Practitioner and Instructor in Standardized Field Sobriety Testing. Further, Tom is the author of the New York Edition of The DUI Book: A Citizen’s Guide to Understanding DWI – DWI Litigation in America. Tom has appeared nationally as a regular legal commentator on TruTV.

He earned his B.A. at Syracuse University and his Juris Doctor at St. Thomas University School of Law before earning admission to the New York State Bar. Please remember you can call Tom Anelli 24/7 at 1-800-DWI-1100.

90-96.01. Drug education schools; responsibilities of the Department of Health and Human Services; fees.

(a) The Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall establish standards and guidelines for the curriculum and operation of local drug education programs. The Department of Health and Human Services shall oversee the development of a statewide system of schools and shall insure that schools are available in all localities of the State as soon as is practicable.

(1) A fee of one hundred fifty dollars ($150.00) shall be paid by all persons enrolling in an accredited drug education school established pursuant to this section. That fee must be paid to an official designated for that purpose and at a time and place specified by the area mental health, developmental disabilities, and substance abuse authority providing the course of instruction in which the person is enrolled. If the clerk of court in the county in which the person is convicted agrees to collect the fees, the clerk shall collect all fees for persons convicted in that county. The clerk shall pay the fees collected to the area mental health, developmental disabilities, and substance abuse authority for the catchment area where the clerk is located regardless of the location where the defendant attends the drug education school and that authority shall distribute the funds in accordance with the rules and regulations of the Department. The fee must be paid in full within two weeks of the date the person is convicted and before he attends any classes, unless the court, upon a showing of reasonable hardship, allows the person additional time to pay the fee or allows him to begin the course of instruction without paying the fee. If the person enrolling in the school demonstrates to the satisfaction of the court that ordered him to enroll in the school that he is unable to pay and his inability to pay is not willful, the court may excuse him from paying the fee. Parents or guardians of persons attending drug education school shall be allowed to audit the drug education school along with their children or wards at no extra expense.

(2) The Department of Health and Human Services shall have the authority to approve programs to be implemented by area mental health, developmental disabilities, and substance abuse authorities. Area mental health, developmental disabilities, and substance abuse authorities may subcontract for the delivery of drug education program services. The Department shall have the authority to approve budgets and contracts with public and private governmental and nongovernmental bodies for the operation of such schools.

(3) Fees collected under this section and retained by the area mental health, developmental disabilities, and substance abuse authority shall be placed in a nonreverting fund. That fund must be used, as necessary, for the operation, evaluation and administration of the drug educational schools; excess funds may only be used to fund other drug or alcohol programs. The area mental health, developmental disabilities, and substance abuse authority shall remit five percent (5%) of each fee collected to the Department of Health and Human Services on a monthly basis. Fees received by the Department as required by this section may only be used in supporting, evaluating, and administering drug education schools, and any excess funds will revert to the General Fund.

(4) All fees collected by any area mental health, developmental disabilities, and substance abuse authority under the authority of this section may not be used in any manner to match other State funds or be included in any computation for State formula-funded allocations.

(b) Willful failure to pay the fee is one ground for a finding that a person placed on probation or who may make application for expunction of all recordation of his arrest or conviction has not successfully completed the course. If the court determines the person is unable to pay, he shall not be deemed guilty of a willful failure to pay the fee. (1981, c. 922, s. 8; 1991, c. 636, s. 19(b), (c); 1993, c. 395, s. 1; 1997-443, s. 11A.118(a).)

§ 90-96.1. Immunity from prosecution for minors.

Whenever any person who is not more than 18 years of age, who has not previously been convicted of any offense under this Article or under any statute of the United States of any state relating to controlled substances included in any schedule of this Article, is accused with possessing or distributing a controlled substance in violation of G.S. 90-95(a)(1) or 90-95(a)(2) or 90-95(a)(3), the court may, upon recommendation of the district attorney, grant said person immunity from prosecution for said violation(s) if said person shall disclose the identity of the person or persons from whom he obtained the controlled substance(s) for which said person is being accused of possessing or distributing. (1973, c. 47, s. 2; c. 654, s. 3.)

§ 20-179. Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments. (a) Sentencing Hearing Required. – After a conviction under G.S. 20-138.1, G.S. 20-138.2, a second or subsequent conviction under G.S. 20-138.2A, or a second or subsequent conviction under G.S. 20-138.2B, or when any of those offenses are remanded back to district court after an appeal to superior court, the judge shall hold a sentencing hearing to determine whether there are aggravating or mitigating factors that affect the sentence to be imposed. The following apply: (1) The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists. (2) Before the hearing the prosecutor shall make all feasible efforts to secure the defendant's full record of traffic convictions, and shall present to the judge that record for consideration in the hearing. Upon request of the defendant, the prosecutor shall furnish the defendant or the defendant's attorney a copy of the defendant's record of traffic convictions at a reasonable time prior to the introduction of the record into evidence. In addition, the prosecutor shall present all other appropriate grossly aggravating and aggravating factors of which the prosecutor is aware, and the defendant or the defendant's attorney may present all appropriate mitigating factors. In every instance in which a valid chemical analysis is made of the defendant, the prosecutor shall present evidence of the resulting alcohol concentration.