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Charlotte's Law - Repeat DWI Offenders, DWI Lawyer Buffalo NY

15 NY-CRR I J 136.5

PART 132. DANGEROUS REPEAT ALCOHOL OR DRUG OFFENDERS

Charlotte's Law (a bill that did not pass), provoked amendments to the NY State DMV Regulations adding new rules designed to impact DWI repeat offenders that for some will require legal analysis or intervention to get driving privileges restored (see below). Yet for others there may not be a remedy. The rules effect anyone that has had an alcohol or drug related driving conviction or incident on their driving record, and are applying to the DMV to restore their license after a revocation (even if your license is not currently Revoked as a result of a DWI Conviction or Refusal)

Thank Governor Cuomo

The new rules could cause some drivers to suffer an additional 2 year, 5 year, or in some cases a Lifetime Revocation at the time they apply to have their Licenses Reinstated.

Some repeat DWI offenders may have their licenses revoked if they get flagged for a "lifetime record review" after being convicted of a traffic offense worth five or more points, such as passing a stopped school bus, reckless driving, or speeding more than 20 mph over the limit. When these Drivers apply to restore their licenses after the revocation period has ended they may also suffer an additional 2 year, 5 year, or Lifetime Revocation.

Some DWI and DWAI offenders will also find that even if they qualify and complete the Drinker Driver Program they will not be able to have their licenses fully restored after completing the program because they have two or more alcohol or drug-related driving convictions or incidents within 25 years from the date of enrollment in the program. These offenders will have to continue on with their conditional license until the suspension or revocation period expires.

Revocation Triggers a Lifetime Review Upon Application to Restore License


Whenever a driver applies to have a license restored after serving a Revocation the Commissioner will conduct a lifetime review of such person's driving record to see whether the driver has a history of alcohol or drug related driving convictions or incidents and/or Serious Driving Offenses.

An alcohol or drug related driving conviction or incident means a conviction of a violation of section 1192 of the Vehicle and Traffic Law(DWI, DWAI), a finding of a violation of section 1192-a (Zero Tolerance) of the Vehicle and Traffic Law, a conviction of an offense under the Penal Law for which a violation of section 1192 of the Vehicle and Traffic Law 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, or 20 or more points from any violations.

Discretionary Approval of Application to Restore License

If the driver has two alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period, then the commissioner may in his or her discretion approve the application after the minimum statutory revocation period is served.

Two(2) Year Additional Revocation Upon Application to Restore License

If the driver has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period; and the person is not currently revoked as the result of an alcohol- or drug-related driving conviction or incident, then the commissioner shall deny the application for at least two years, after which time the person may submit an application for relicensing. Such waiting period shall be in addition to the revocation period imposed pursuant to the Vehicle and Traffic Law. After such waiting period, the commissioner may in his or her discretion approve the application, provided that upon such approval, the commissioner shall impose an A2 restriction, with no ignition interlock requirement, for a period of two years. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle

Five (5) Year Additional Revocation Upon Application to Restore License

If the driver has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period; and the person is currently revoked for an alcohol- or drug-related driving conviction or incident, then the commissioner shall deny the application for at least five years, after which time the person may submit an application for relicensing. Such waiting period shall be in addition to the revocation period imposed pursuant to the Vehicle and Traffic Law. After such waiting period, the commissioner may in his or her discretion approve the application, provided that upon such approval, the commissioner shall impose the A2 restriction on such person's license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

Lifetime Revocation Upon Application to Restore License

If the driver has five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime, then the commissioner shall deny the application to restore the license.

If the driver has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the commissioner shall deny the application to restore the license.

If the driver has been twice convicted of a violation of subdivision three, four or four-a of section 1192 of the Vehicle and Traffic Law or of driving while intoxicated or of driving while ability is impaired by the use of a drug or of driving while ability is impaired by the combined influence of drugs or of alcohol and any drug or drugs where physical injury, as defined in section 10.00 of the Penal Law, has resulted from such offense in each instance, then the commissioner shall deny the application to restore the license.

How To Get Your License Restored After Multiple DWI's in New York

Currently there has been little progress in overturning the new DMV Regulations. I believe they will withstand the challenges. Nonetheless, there are a couple of ways that a person could get their license restored. It is best to take action before applying for the restoration of your license.

The first is the filing of a petition for a writ of coram nobis. In Lyons v. Goldstein, the Court of Appeals held that a court has the power to investigate its own judgment of conviction and if necessary, set it aside (290 N.Y. 19 (N.Y. 1943). Coram nobis is available when a defendant has been denied constitutional rights (among other things). This may work to reopen a prior case where a conviction for DWI occurred based on a plea bargain. The constitutional violation, as the argument goes, was when the defendant waived his right to trial without having the benefit of knowing the gravity of his plea. In other words, he would have chosen to go to trial had he known about the current changes to the DMV regulations. This will do you no good in a case were you refused the chemical test, as that counts as an alcohol incident even if the DWI conviction is removed from your record. The planets will have to be aligned for this to work. The judge will have to rule in your favor, the ADA will have to offer you a plea to a non-dwi offense or fail to prevail at trial, and it has to be beneficial to your DWI count.

The second is to file an Article 78 Petition to remove a prior finding that you refused a chemical test. This will work to reduce your DWI count on a case where the DWI charges were dismissed in the court case because of a constitutional violation (bad stop, payton violation ect.). Of Course the DMV will argue that you failed to appeal the finding so an Article 78 can't be filed, but I think the DMV will be unable to prove that they gave proper notice of your right to appeal, so the argument goes. Again, this may only help you if you had hired a lawyer that exercises proper motion practice, and you benefit from one less alcohol incident on your record.

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