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| "From that day on, if I was goin' somewhere, I WAS RUNNING!" - Forrest Gump |
WHEN
DOES A DWI HARDSHIP HEARING REQUIRE EXTREME HARDSHIP?
Anyone
in New York charged with a DWI that is based upon a breath or blood test of .08
or higher (blood alcohol content) or has refused to take a chemical test is
subject to having their driving privileges suspended. This is called a
suspension pending prosecution.
What Happens to My
Physical Driver's License After a DWI?
The judge acts as an
administrator for the NYS DMV, and must suspend your driving privileges
temporarily (while your criminal case is pending). If you have an out-of-state
driver's license, then only your NYS privileges are suspended. If you are from
another state they will merely photocopy your out-of-state license- not take it
away. If you have a NYS driver's license you must surrender it to the court.
The Extreme Hardship
to the Mild Hardship
Under New York state
law you are entitled to a hardship hearing within three days (72
hours) of your arraignment and license suspension where you can make
application for a hardship license privileges. Hardship license privileges are
supposed to be awarded or more rewarded upon proof that you have NO reasonable
means of transportation to work, school, and/or medical care.
"Reasonableness" with
Hardship Privileges is a Standard... or Is It?
Some judges view the
word extreme in all it's glory. When is it an extreme hardship? I once had a
client from Rochester, to get to his place of work he needed to take four to
five buses a various times. The judge in that case said NO to a hardship
privilege for work. In another case, I had a client who lived out in farm
country (most of the Finger Lakes) and the judge said he could bike the two
miles to work. Even though I argued this was January (snow season) and freezing
cold temperatures and biking at night. He didn't care.
What is the DWI
Hardship License Standard and How is it Applied?
The New York standard
for hardship is found in the case of People v. Bridgman. The Bridgman court
came up with eight factors to be taken into consideration by the judge to grant
or award hardship driving privileges:
“(1) the presence or
absence of licensed persons present in the licensee’s household; (2) the
ability of other licensed household members to provide transportation for the
licensee; (3) the occupation and health condition of the licensee; the
proximity of the licensee’s place of employment, health care provider or school
to his or her household; (5) the presence or absence of any public
transportation or taxi service to or from the licensee’s household to the place
of employment, health care provider or school (6) a consideration of the
licensee’s ability to afford public transportation or taxi service as an
alternative means of transportation; (7) the presence or absence of co-workers,
friends or family members who may assist in the licensee’s transportation; and
(8) any other factor that the court deems appropriate to the determination.”
Creative Lawyering to
Maintain DWI License Privileges By the Court
Are these the only
factors or the main factors, in a word no. I have argued lateness of night, and
dangers to women walking alone to their cars. I have creatively argued time of
day, and non-existent bus schedules. I have argued for daycare privileges,
helping a parent with their medical care, and even having to drive for work in
New Jersey and Massachusetts. When license privileges are on the line
creativity must come to the forefront.
Saving a license and
the ability to drive, especially for the necessities of life and living, are
paramount to the majority of people.
If you have questions about a DWI case or a DWI Refusal case in New York, call us: 607-229-5184
or find us online: www.ithacadwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
BY Larry Newman, D.C., Esq.
Educational Purposes only. Copyright 2016.
If you or a loved one are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes -including the potential loss of your freedom.
