I frequently get calls from people who appeared at their first court appearance for a DWI case and had their license promptly suspended. Some of these people had no idea this would happen and neither did their attorney. Before retaining a lawyer for a DWI case it is very important to find a lawyer who not only knows criminal law, but has particular knowledge about DWI laws in New York.
The prompt suspension law, (NY VTL 1193(2)(e)(7)), requires the court to immediately suspend the driving privileges of any defendant who produced a chemical test of .08% BAC or higher at the first court appearance or arraignment. Because this measure creates drastic hardship for those who have to drive to work or school, the courts created the Hardship Privilege, which is a limited privilege to drive while a DWI case is pending. However, the Hardship Privilege is not given out just for the asking. There is a procedure the court must follow and hopefully the information below will help a defendant obtain the hardship privilege and be prepared for the first DWI court appearance.
Who is eligible for the hardship privilege? Most first time DWI defendants are eligible. Some repeat offenders are eligible as long as five years has elapsed since the date they completed the NY DMV Drinking Driver Program to the date of the new arrest.
What is the criteria to determine eligibility? To receive a Hardship Privilege the DWI defendant must be able to demonstrate to the court that the immediate license suspension will create a substantial hardship for them. Obviously, activities like getting to work, school, or the doctor that require driving are essential components of life for most people. The court will make an inquiry about alternative means of travel such as friends and family or public transportation.
How should I prepare to make the application for a Hardship Privilege? The court will not simply take your word and grant the privilege. You must come to court with some kind of evidence. Also, some courts require a written application. It is my standard practice now to draft an affidavit for my client's signature. The information in the affidavit will include my client's home address, school address, and work address. I will also include an affirmation that the client has no viable alternative means of travel. In addition, I tell my clients to bring a utility bill that indicates their home address, and a pay stub from their employer. Again, the court will want to see proof of the affirmations made in the application.
How do I make the application? I try to let the judge know as soon as I can after the case is called that I will be making the application. More experienced DWI lawyers will often request a Pringle Hearing, (I almost always do), but that is a subject for a different post. If a Pringle Hearing is conducted, the application will be made when the Pringle Hearing concludes.
Finally, after thirty days have elapsed since the arraignment, the DWI defendant can obtain a Pre-Conviction Conditional License that greatly expands the limited driving privileges contained in the Hardship Privilege.
