Here are THREE examples of when you will NOT get your New York driving privileges suspended following charges for DWI, DWAI (drugs) or DWAI (combined drugs/alcohol).
Now these situations all have one thing in common at the start of a case---LACK OF LEGAL PROOF. There's a legal threshold to charge somebody with a crime and then there are additional thresholds to prosecute somebody further throughout the criminal judicial process.
1. If your BAC (Blood Alcohol Concentration) is LESS THAN 0.08% [which is the NY legal limit], then the Judge cannot suspend your license at the first court appearance. If the BAC number on the certified breath test or blood test does not rise to the level of 0.08...then the Judge cannot suspend your license pending prosecution. This is because the prosecutor does not have the LEGAL PROOF of impairment of a BAC over 0.08%. The law that says this is Vehicle and Traffic Law s. 1193 (2)(e)(7).
However, like all things in the law, there is an exception.. if your license is a "Junior License." .If you are under 18 years old, your license is a "DJ" or an "MJ": [which stands for Driving Junior or Motorcycle Junior respectively], and ANY alcohol related charge allows a judge to suspend your license under VTL s.1193 (2)(e)(7)(a-1) , NY has a "zero tolerance" law that allows a Judge to suspend driving privileges if the under age Defendant has ANY alcohol in their blood. So even a BAC of 0.01% allows a judge to suspend a youth's license in NY.
What if the BAC is exactly 0.08% ????
Well, the law seems clear in a way on this--but it wouldn't surprise me if a judge went the other way. Here's some history, NY used to have a legal limit of 0.10% BAC for drunk driving charges. Today, it's been lowered to 0.08% to match the rest of the country.
There was a landmark DWI case in New York in 1996 called Pringle v. Wolf. This case made clear that Defendants had a right to a hearing about suspending their driver's license at the beginning of a DWI case as well as other important things.
In that case, the state's highest court [NY Court of Appeals] said that: "The court may NOT order suspension of a driver's license unless it has in its possession the documented results of a reliable chemical test showing that the driver's blood alcohol leve was in excess of 0.10% as shown by the test."
Obviously, the law is now 0.08% but the principle in the case remains the same--therefore, it is my professional opinion that if you have a BAC of 0.08% or less, then the court should NOT suspend your driving privileges.
2. If the prosecutor cannot provide a CERTIFIED BREATH TEST at the initial appearance, then the judge cannot suspend your license. VTL s. 1193 (2)(e)(7). This piece of paper is the legal proof required for a judge to suspend.
3. If the prosecutory cannot provide the BLOOD TEST RESULT at the initial appearance, then the Defendant cannot have their license suspended. This is pretty common.
I see the lack of blood results all the time because it usually takes 6-8 weeks following a blood draw for the prosecutor to obtain a copy of the blood result. Therefore, Defendants charged with DWAI (drugs) or combined drugs/alcohol usually do not have their license suspended immediately.
There is an upside and downside to this...since the DMV only allows you to apply for a "pre-conviction conditional license" after your license has been suspended for 30 days under the above law, if you have to wait to get suspended while waiting for a blood test result, then you will also have to wait an EXTRA 30 days after the suspension to apply for your conditional license. That means, that you can only apply for a "hardship license" at that moment when the prosecutor gives the blood test results --and those are harder to get. Hence the name, "hardship license." So, basically, DWAI drugs charges really suck.
--SUMMARY THOUGHTS--
As you can see, the above stuff is pretty complex. There's always exceptions or things to think about with your license when a DWI charge of any kind is on the line. Just be sure that you're confident with your attorney before you walk into court and don't be afraid to ask questions --not only about your criminal charges, but also about what will happen to your license.
Thanks for reading!
BY: Attorney Mike Cyr
P: 607-229-5184
E: mike.ithacadwi@gmail.com
Twitter: @ithacadwi
