Extreme
Hardship Licenses In New York When License is
Suspended Pending Prosecution for Driving While Intoxicated
New York State permits Criminal Court
judges to suspend the driving privileges of people merely accused
of driving while intoxicated under a few different circumstances, the
most common of which is when the blood alcohol reading from a test
administered during the arrest process is over a certain limit
(currently 0.08).
Click Here to
read the relevant portions of the New York Vehicle and Traffic Law
(found at the end of this article).
If a Criminal Court intends to suspend a
driver's license as a result of this rule, the driver can make the
argument that the suspension of the license pending prosecution would be
an "extreme hardship".
The concept of "extreme hardship" is
specifically defined by the New York Vehicle and Traffic Law.
For the purposes of the New York Vehicle
and Traffic Law "extreme hardship" is defined as follows:
the inability to obtain
alternative means of travel to or from the licensee's employment,
or to or from necessary medical
treatment for the licensee or a member of the licensee's household
if the licensee is a matriculating
student enrolled in an accredited school, college or university
travel to or from such licensee's school, college or university if
such travel is necessary for the completion of the educational
degree or certificate.
The statute requires that the
determination with respect to the suspension be made at the conclusion
of arraignment and that the arraignment can be delayed no more than
three days for the purpose of permitting a defendant to gather evidence
and obtain counsel to conduct the extreme hardship hearing.
Although the statute does not
specifically list the specific factors a judge must consider when
considering extreme hardship applications, one local court in New York
wrote an extensive opinion in which perhaps the most significant are
discussed.
In the case, the Court listed the
following factors as being the most significant to consider when
evaluating a hardship application:
The full text of this
hardship application opinion is available in PDF format by
clicking here.
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;
4. 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.
If one of the above factors applies to
you, then you may have a good argument that you ought to be granted an
extreme hardship license pending prosecution.
Of course any individual situation will
have to be evaluated in the context of the entire set of circumstances
by a criminal defense lawyer, but the above
list should give you some idea of the sorts of things a court is likely
going to be looking for.
If you are successful in obtaining a
hardship privilege, you must realize that the license is only valid for
the purposes for which you were able to obtain the hardship privilege.
In other words, if you are able to demonstrate the hardship for getting
to and from work, that will be the extent to which the privilege will
extend. The hardship privilege does not restore your full driving
privileges.
Even if you are unable to qualify for an
extreme hardship license pending prosecution, the law provides that you
may be eligible, through the New York Department of Motor
Vehicles, for a conditional license 30 days after your license is
suspended pending prosecution.
If you have been given an adjournment for
the purpose of permitting you to make an extreme hardship argument, you
need to consult with an attorney about making this argument for you as
well as defending the criminal case itself.
Relevant Excerpts from New York Vehicle and Traffic Law Section 1192.3
About Suspension Pending Prosecution and Extreme Hardship
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Suspension pending prosecution; excessive
blood alcohol content.
...a court shall suspend a driver's
license, pending prosecution, of any person charged with a violation of
subdivision two or three of section eleven hundred ninety-two of this
article who, at the time of arrest, is alleged
to have had .08 of one percent or more by weight of alcohol in such
driver's blood as shown by chemical analysis of blood, breath, urine or
saliva, made pursuant to subdivision two or three of section
eleven hundred ninety-four of this article.
...
b. The suspension occurring under clause a of this subparagraph shall
occur no later than at the conclusion of all proceedings required for
the arraignment ...the next regularly scheduled session of the court
after the arrest or at the conclusion of all proceedings required for
the arraignment; provided, however, that if the results of any test
administered pursuant to section eleven hundred ninety-four of this
article are not available within such time period, the complainant
police officer or other public servant shall transmit such results to
the court at the time they become available, and the court shall, as
soon as practicable following the receipt of such results and in
compliance with the requirements of this subparagraph, suspend such
license
In order for the court to impose such
suspension it must find that the accusatory instrument conforms to the
requirements of section 100.40 of the criminal procedure law and
there exists reasonable cause to believe either that (a) the holder
operated a motor vehicle while such holder had .08 of one percent or
more by weight of alcohol in his or her blood as was shown by
chemical analysis of such person's blood, breath, urine or saliva, made
pursuant to the provisions of section eleven hundred ninety-four of this
article or (b) the person was the holder of a class DJ or MJ learner's
permit or a class DJ or MJ driver's license and operated a motor vehicle
while such holder was in violation of subdivision one, two and/or three
of section eleven hundred ninety-two of this article. At the time of
such license suspension the holder shall be entitled to an opportunity
to make a statement regarding these two issues and to present evidence
tending to rebut the court's findings.
c. Nothing contained in this subparagraph shall be construed to prohibit
or limit a court from imposing any other suspension pending prosecution
required or permitted by law.
d. Notwithstanding any contrary provision of this chapter, if any
suspension occurring under this subparagraph has been in effect for a
period of thirty days, the holder may be issued a conditional license,
in accordance with section eleven hundred ninety-six of this article,
provided the holder of such license is otherwise eligible to receive
such conditional license. The commissioner shall prescribe by regulation
the procedures for the issuance of such conditional license.
e. If the court finds that the suspension imposed pursuant to this
subparagraph will result in extreme hardship,
the court must issue such suspension, but may grant a hardship
privilege, which shall be issued on a form prescribed by the
commissioner. For the purposes of this clause, "extreme hardship"
shall mean the inability to obtain alternative means of travel to or
from the licensee's employment, or to or from necessary medical
treatment for the licensee or a member of the licensee's household, or
if the licensee is a matriculating student enrolled in an accredited
school, college or university travel to or from such licensee's school,
college or university if such travel is necessary for the completion of
the educational degree or certificate.
The burden of proving extreme
hardship shall be on the licensee who may present material and relevant
evidence. A finding of extreme hardship may not be based solely upon
the testimony of the licensee. In no event shall arraignment be
adjourned or otherwise delayed more than three business days solely for
the purpose of allowing the licensee to present evidence of extreme
hardship. The court shall set forth upon the record, or otherwise set
forth in writing, the factual basis for such finding. The hardship
privilege shall permit the operation of a vehicle only for travel to or
from the licensee's employment, or to or from necessary medical
treatment for the licensee or a member of the licensee's household, or
if the licensee is a matriculating student enrolled in an accredited
school, college or university travel to or from such licensee's school,
college or university if such travel is necessary for the completion of
the educational degree or certificate.
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