Thursday, October 04, 2012

NY DWI Repeat Offenders: New DMV Rules in 2012

In my previous post I covered the phony emergency and bureaucratic end run in the new NY DMV DWI rules.

Now let's get into the meat of the new rules, all of which can be seen on the DMV Proposed Rules page (for now).
Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.
I'll start with the one that will affect the most people.

DMV rule 134.10(b) covers the process of getting your full license back after completing a rehabilitation program, commonly referred to as the DDP (Drinking Driver Program (pdf)). The amended language excludes you if you have:
two or more alcohol or drug-related driving convictions or incidents within 25 years from the date of enrollment in the program.
Here's an extreme scenario: In 1996 when you were 20 years old, you were arrested with a blood-alcohol content of 0.02 and convicted of VTL 1192-a - the Zero Tolerance Law.  In 2020 you're arrested for a DWI with a 0.06 BAC (I've seen it happen). Not knowing any better, you plead guilty to the DWI and your license is revoked. When you go to get your license restored, DMV refuses because of that 24-year-old zero tolerance conviction.

Anyone who's had any kind of DWI case in the past 25 years (and going forward) may face this problem. Most people in this situation will have a conditional license that lets them do most of the driving they need, but it will create significant problems for some.

We don't know the precise numbers in NY, but you might be surprised how many people have something on their record. According to a Minnesota DPS report (pdf, page 22), over 10% of their drivers have one. I've seen other numbers putting it as high as one in seven. If you live on a street with 20 houses averaging 2 drivers per home, then on average you've got about 5 neighbors who have a DWI history.

Part of the problem with the new rules are the broad definitions relating to "dangerous" drivers. Second 132.1(a):
Alcohol- or drug-related driving conviction or incident means a conviction of a violation of section 1192 of the Vehicle and Traffic Law, a finding of a violation of section 1192-a 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.
This includes anything under Section 1192. That's not shocking, but it includes the non-criminal DWAI offense under 1192(1), which is generally cases with BAC under 0.08, and widely perceived as far less serious than Aggravated DWI 1192(2-a) with BAC of 0.18 or higher. Treating these two offenses as the same is questionable.

The definition also includes 1192-a - the Zero Tolerance Law which is for a BAC as low as 0.02 for a young driver. Do we really want to punish people in their 40s for driving after one beer in their late teens?

And the definition includes "finding of refusal to submit to a chemical test." These findings are made with nowhere near the procedural protections one gets in a criminal case. The "hearing" is held in a tiny room in a DMV office. There is no jury. The decision is made by an Administrative Law Judge (ALJ). He (usually male) is an employee of the DMV, not like a judge in the court system. There is no discovery - zip, zero, nada, none. Your right to cross-examine the police officer is limited by the whim of the ALJ. Some of the ALJs are fair. Some aren't. If you can't afford a lawyer you don't get a public defender. You do have the right to an attorney, but many people don't know what their rights are. In a criminal proceeding the judge is required to instruct you about your rights. Most people don't even go to the hearing, and they lose even when they're innocent.

There's more in the definitions, but what matters here is how this impacts people. The new regulation under Section 132.2 calls for a "lifetime record review" of anyone convicted of a "high-point driving violation," which is defined as any violation of five or more points, such as passing a stopped school bus, reckless driving, and speeding more than 20 mph over the limit. If the review shows enough relevant convictions or incidents in the driver's lifetime, or a different threshold in the past 25 years, then their license will be revoked. And they might never get it back.

Here's the extreme situation. Ralph had a bad run in his teens and 20s. He had a zero tolerance violation at 19. He had four more convictions or incidents in his 20s. He served his time, paid his debt to society, etc.

Fifty years later Ralph is driving south on the Northway and doesn't notice the speed limit dropped from 65 to 55 mph. He gets a ticket for 76 in a 55. Ralph mails in a plea of guilty and pays the fine. The lifetime record review ensues. Because of the five convictions/incidents from fifty years ago, Ralph's license is revoked.

But wait ... there's more. Ralph applies to have his license reinstated after the revocation period is up. New regulation 136.5(b)(1) requires states: "the Commissioner shall deny the application." Ralph just lost his license permanently because of a recent 76 in a 65 and his bad behavior that happened fifty years ago.

Really what's happening is Ralph is being punished again for what happened long ago. That's not what the Courts will say. They'll say this isn't punishment. It's not a penalty at all, just an administrative remedy.

If the individual doesn't have five incidents in his lifetime, he can still get hit if he has three convictions or incidents in the past 25 years, plus one or more serious driving offenses. The definition of "serious driving offense" is also troubling:
Serious driving offense means (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of two or more high-point driving violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part; or (iv) 20 or more points from any violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part.
The fatal accident one sounds serious, but it doesn't say it has to be the driver's fault. And one can have a fatal accident arising out of a minor driving offense.

A "driving related Penal Law conviction" is vague. Does that include a marijuana violation resulting from a traffic stop? Or a shoplifting arrest that occurs after you started driving away from the store? What if you drive away from the gas station without paying for the gas? This may not be a big concern because it's not clear if the DMV's system tracks such convictions.

Then we have "conviction of two more more high-point driving violations." So if you had two of the 76/55 speeds in the past 25 years, you're on the hook. Or with the last category, you could get one ticket every four years for 66 in a 55 (11 mph over). Each counts for four points. You'd have 20 points in 20 years.

So, like Ralph's situation, 22 years ago you had a bad run. You got a couple DWAIs and a DWI. As a part of that you also got a couple speeding tickets or other point-bearing violations. Then you had a couple of low speeds 15 years ago. Now you get your 76/55, the record review, and you're revoked. Under 136.5(b)(2), your application for reinstatement will be denied - permanently. Again, the individual is being punished not for the 76 in a 55, but for the long ago conduct.

There's more in these rules, including situations where an ignition interlock device would be required for someone who is getting their license back. That's complicated and we've covered quite a bit here already.

This is all very new, and I may have missed something. I certainly appreciate any comments, suggestions or corrections.


mjbro said...

i know the past law was: permanent revoke but after 5 years a waiver could be issued. i believe it is still intact? do people have to wait another five years or are they going to count the five years served and give them an a2 license? how can these new laws be legal? there must reasons why they didn't pass in the senate...

Anonymous said...

These new laws have been keeping me up at night since their inception just a fews weeks ago.

I have been convicted of three DWI offenses, all within a ten year period. The most recent occurred in November of 2010, and I have just served my mandatory eighteen month suspension period, which just happened to coincide with the introduction of these new regulations. During this time, I have completed a thirty-six month out-patient rehabilitation program, successfully completed treatment court, and have just been granted approval by a county judge to adjust the terms of my probation, so that I will be able to apply for a license.

We all have pasts, some of which are more respectable than others, but they are our pasts regardless. I have learned a lot since my most recent incident, a lot of which I attribute to receiving treatment (which I was not recommended after my first or second DWIs) and maintaining a strong support network. I am going to be submitting my application to apply for a license, but I am greatly uncertain as to what is going to happen. I have a strong inclination that I will be denied and my suspension period will be extended another two to five years, which is going to be life altering.

I currently have a lawyer who is assisting me with this matter, but can anyone offer me some input as to what I can realistically expect from the DMV? If I am denied, which I am expecting, then I am ready to pursue requesting a hearing, or possibly an article 78, if it is prudent.

I do not think that this regulation was rightfully instituted by the DMV, and seems more of a political ploy and a show of power than anything else. There really are cases out there where, through much hardship, people have changed and learned from their mistakes. These new regulations are basically a slap in the face to those of us who fall into this category, as not all of us live in areas with public transportation. I think that these cases should be examined individually to make a determination based upon many current factors, instead of just throwing the book at the individual.

Unknown said...

"I currently have a lawyer who is assisting me with this matter, but can anyone offer me some input as to what I can realistically expect from the DMV?"

That is a conversation you should have with your lawyer.

Anonymous said...

These regulations are new to him, and he is currently seeking answers to this question. I was just curious if others had any relevant knowledge pertaining to the matter, as a second opinion or sorts.

Unknown said...

We are all new to this.

Anonymous said...

I am in the same boat that the anonymous individual who made a previous comment. I have a DWAI when I was 19, and two more recent DWI's. I completed DWI court in Febuary of this year and have since been granted reapplication privliages for my license. I have not driven a vehicle since July 21, 2009 and according to the new laws it looks like I won't be driving until July of 2016. This is devasting news. I have completed 22 months of both inpatient and outpatient treatment and have been completely sober for 3 years now. In that time I have completed my degree, been poromoted 4 times at work, bought a house, got engaged, and I am expecting my first child next month. This rulling is a complete smack in my face to all my fiance and I have accomplished. I will also be looking into possible legal action when I finanlly get my results, which according to DMV could be "a while". I am 32 years old and I made some poor choices in my teens and 20's and now I am being punished for a total of 12years of consiquences. Don't forget you have to install a alcohol monitor in your vehicle after you have not driven for 6 years. We are not all dangerous people, I have never been in a car accident or even gotten a speeding ticket before. I'm glad it doesn't matter what you plea to at the time of conviction anymore in this state. How am I supposed to get to work, or drive my daughter around? People will say, "you should have thought about that before you decided to drink and drive"; well what its been so long that all of these woderfull things in my life have come to be after all of my mistakes?

Unknown said...

im in the same boat as most here, i have made poor decisions when i was younger, and most recently i took a plea for a misdameanor in 2011 and my revokation period was up on feb 2013, According to this new law, im not getting my license ,ever, if i had known this at the time i would have had a trial ,,this is crazy, and its going to push people ,hard working people into a corner,,,not good

Anonymous said...

Whats going to happen is DMV will institute a new fee of several hundred dollars to get your license restored. As with every other DMV rule its all about the money.

Anonymous said...

We can only hope it will be fixed with a fine so good people will have a way to get to work!

Anonymous said...

We can only hope that there will be a new fee to get the license back. That way good people will be able to legally get to work. These new rules a ridiculous!!!!!

Anonymous said...

They rewrote the book this year as you point out and I guess I'm their poster child. I had 2 DWAI's & 1 DWI back in the early 90's (~16 years ago) I did my rehab and paid the fines back then and now the DMV denied my application that I mailed in a year ago (Dec. 2011). I quit drinking cold turkey after the DWI and have recently been suffering from epileptic partial grand mal seizures. I suffered one in July 2010 hit a building and as a result and a man died. I've actively pursued finding the cause of the seizures with many kinds and types of doctors and have been seizure free 2 years since the accident. The ALJ @ the safety hearing gave me a speeding ticket and revoked my license for 30 days in Sept. 2011. The pompous jerk had his mind made up before we ever started that day. What could I do? It was a ACCIDENT as I was not conscious at the time but he didn't want to hear it. Someone died and I should have hung from the yard arm!! I reapplied for a license in Dec. 2011 and just a few days ago I got the letter from DMV citing my alcohol history and other tickets make me an immediate danger to public safety. I'm a 51 YO man with a failing job and no way to get there unless I break the law and face stiff penalties if I do and I get caught driving. Worse yet there is going to be layoffs again soon and I fear being unemployed due to my difficulties getting to work. I own a home in a rural area where public transportation is unavailable so my life is falling apart because the political elitists (safety Nazi's) have deemed anyone who drank and quit a criminal and unworthy individual to receive the privilege to drive a car / earn a living in this state. I've retained a legal professional but have done time searching around for help & suggestions and found this website and I wonder if there is any sort of Class action against the new ultra-strict DMV laws. Yes, the new laws are a political gold mine for our elected officials but I believe the state DMV and our elected officials have left the realm of reality and over-done it!! The only thing the new laws will accomplish is to fill the jails with poor schleps that have to break the law to try and earn a living because you almost absolutely need a car to get around! The state has used this as a huge sledge hammer to wield and keep folks under their thumbs! I understand that their intentions are good but using this new law against folks that were dumb enough to commit old offences when the laws were different and NOW hold them accountable is bull! Should I just give up and join the throngs of NYS inmates?? I'm running out of time & Options and need help!

Anonymous said...

For the Anonymous poster child above, I will point out to you that once you have a seizure you are prohibited from driving for one year from your last seizure. That death was not an "accident", it resulted from a conscious decision that you made to keep driving despite the dangers to others, just as when you were drinking and driving. The reason for the "new ultra-strict DMV laws" is that the rest of society is tired of being put at risk by drivers such as yourself. In your post, I read a lot of complaints about the inconveniences to you, but little or no acknowledgement of your responsibility for your actions. Doing your rehab and paying your fines is not enough; you have stopped drinking but you are what is called a "dry drunk". If you want to change your behavior, your attitude towards your actions needs to change. I strongly recommend counseling, either AA or otherwise.

Anonymous said...

To the anonymous poster child above; you had two DWAIs and one DWI, but how many total arrests for drunk driving? And how many times did you put the driving public at risk by driving drunk? And you should be aware that even one seizure means that DMV tells you not to drive until you have been seizure-free for one year. You did your rehab and paid your fines, but your attitude toward your actions still has not changed. You are a "dry drunk"; you are sober but you need counseling because otherwise your behavior has not changed. And, btw, the reason for "the new ultra-strict DMV laws" is that the rest of us are fed up with being put at risk, and if they are the only way to keep irresponsible drivers off the road, then they will stay ultra-strict. For some, the only way to keep the rest of us safe is to put them in jail. If you were aware of the risk of killing someone while driving with an inadequately treated seizure disorder, you could have been charged and convicted of criminally negligent homicide if not second degree manslaughter.

Anonymous said...

Yes, I am aware of the 1 year minimum suggestions above. It's been over 2 years since any epileptic problems though I'm still on medication. I had 2 DWAI's and one DWI. The DWAI's were in 1981 and 1984 respectively. (~30 years ago!) The DWI was in 1997. (16 years ago) The laws were different then and now the legislature has found fit to label all folks who have alcoholism threats to society? You say all that I am is a 'dry-drunk'? Nothing could be further from the truth. I will never drink again. We have lost two young sons of late along with this awful tragedy as well. I had been seizure free well over 2 years before that day and I do feel awful that it happened but you seem to think I am the one to blame for that event that day. Maybe all Epileptic drivers should be denied a license too? Maybe even worse? See what I'm saying?
If it was that I was a dry drunk I definitely would have started drinking again by now with your attitude? 'Don't judge a man until you have walked his path' was said by wiser men than I but I will suggest that to you for your consideration sir(s). **By the way I have been through AA and counseling as well so I'm way past that- OK?

As far as the second poster about the new laws.. If they want to enact something that strict they should limit it to anything that happens after the law takes effect. If I was conscious of the future ramifications of my stupid behavior I would have defiantly woken up and flew right earlier? This is like posting a law to prohibit skipping on the sidewalk 30 years ago then going out and arresting violators. It's just not fair/right. 30 years ago there were a lot less people driving (even driving) and drinking and driving was more prevalent but maybe you guys weren't alive then? Hard to say.

The "Road Safety Guru's" are legislating more and more controls to try and curb unsafe driving but driving is becoming worse. Too many distractions are prevalent to drivers nowadays for them to safely operate a vehicle. How many folks do you spot testing or driving irresponsibly when you are on the roads nowadays? It's quite a lot.

I had been driving very safely and within the law until that day when that awful medical event happened. I would agree if I was getting ticket after ticket with callous disregard for our driving laws but that was just not the case now was it? Everyone makes mistakes and has to learn (I do admit I was a slow learner) but there is just no leniency at all now. Thank You for replying to my post and I welcome any replies back.

Anonymous said...

I feel these new regulations should apply to those who offend any time after the new regulations were put into place 9-26-2012,not before. It's unfair because if I knew anything like this was going to be put in place I believe I would have made better choices. I have three D.W.I.'s in ten years and am worried sick I will never be given the privliage to drive again. I do know these new regulations will cause many unlicenced drunk drivers and just plain unlicenced drivers to be on the road. People will not seek treatment or pay DMV fines either if you already know there is no chance of getting it back. Why would I if I can never get my licence back? I hope something else get's worked out for people who seriously have taken sobriety seriously.

Anonymous said...

'Poster Child' agrees with the fellow above as to the ramifications.. Why the heck would anyone care if they are treated in this way? Fines would go unpaid and more unlicensed drivers than there already are will be on the road.. This whole thing is a political goldmine for the lawmakers!! The Lifetime review for Revocation's is BS.. What are they going to attack next? Cell phone violators? I'm allowed to live and work and pay taxes to empower these folks to remove personal liberties and any chance to learn and mature? Hope they can afford to build more and more jails to house the poor schleps who they have thrown under the bus! Government has now entered the surreal! It's like a sick Stanley Kubrick world we live in..

Anonymous said...

These tyrannical laws do nothing to address addictions and cause damage to the families of those with permanent loss of driving privileges. The loss of income for families will worsen the economy--50,000 or more individuals who may not be able to work will cause mental illnesses to increase. The fact is that being unable to find work due to background checks or being a non-driver will jeopardize our economic recovery in New York State. If our Gov. and state assemblymen had thought about it, they are the cause of an increase in mental illnesses, such as the resulting depression for those unable to maintain employment due to these laws. Sad state of affairs! Throw the alcoholics away too- yet you leaders say you care about mental illness! That is a laugh! Maybe these laws are unconstitutional as well--you are punishing people twice for the same mistakes or criminal offenses. They have paid in the past and quite a large number have learned from this and are reformed drinkers. Why not throw all the domestic abusers something like this? Take away their right to drive since they have taken away the mental well being of their spouses, partners and their innocent children! Their are offenses out there which are given the slap on the wrist. We can all think of some crimes which currently are not being addressed at all. Disgusted reader

Anonymous said...

Here's the DMV God Barbara Fiala spelling out the new edict they have enacted in 2012. There will not be any leniency for reformed drinkers and/or unlucky souls. It's not fair to folks who have made bad decisions but have reformed and seen the errors of their ways.

Look @ the video on the next page of the picture in this article. It is over reaching and should not be beheld to lifetime reviews. Guess I better buy a 'soap-on-a-rope..

Anonymous said...

I had a dwi which was reduced when I was 17 on New Years Eve. I then received another dwi when I was 21 on my first spring break from college. From that time until now I have not had any points on my license. I just recieved my third dwi at age 42 and I have not gone to court yet. So my first dwi at age 17 falls within the 25 years because they go from the dat of conviction from my first dwi to the date of arrest for my latest. If they went from arrest date to arrest date or conviction date to conviction date then this would be my second. I was just wondering if I have a chance to get my license back. It really isnt fair how they pushed this law through with out any warning and then hold these laws against people who were arrested or who had already gone to court and served out their revocation period prior to this law being passed. I was arrested in July for the offense. Do you think I would have taken the chance to drive if these new laws were in effect at that time. These laws need to be placed in effect for any one arrested after the laws were placed into effect. Also I dont feel the DMV should be given that kind of power.

Anonymous said...

the law makers are not being responsible with these new laws,simply require interlocks in the auto's ,stiff fines ,not stopping people from not being able to work.

Anonymous said...

Fifteen years ago when My husband had just died of cancer, and both of my parents were running around with alzheimers and senile dementia, and I was going thru menopause,I began to fall apart. I had a seven year old daughter to take care of, and believe me,I did not want to go crazy. My doctor prescribed me serzone in a sample pac. No warnings. The next day I got my 1st DUi of .07. About a year later he gave me another sample pac. Same thing happens. My lawyer didn't want to bring "Drugs" up. So now over 15 years later, my life is ruined. You can't be exonnerated under NY law from past driving offfeces. OH BOY

Anonymous said...

Same Bs!!! I was charged in 09 for my third dwi. I was eligable in may of 2011 for reinstate. Probation held it. Never missed an appt. Never pissed hot. I stopped drinking after 09 conviction. My probation officer judge approved me in march 12 ,my application was recieved in may,and dmv sat on it. While the new bullshit laws wete being made. I recived a letter from dmv before the laws were changed. So now dmv says i am eligble in 2016 WTF!!! In those 4 years i have bought a house got married and had a beautiful lilttle girl. Thinking i was getting me licence back in 2011. This is SO wrong. Now im laid off ,im a plumber i need to drive. I did my fucken time ,did jail time for this. So please someone please help i just hired another lawyer. So the dwai i caught in 91 i am paying for all over again. I was 17. My point is this is goin backwards. The new laws should be in affect for people that apply after the laws were put into affect.

Anonymous said...

Rehabilitation for DWI convictions is a politiciations word. Incarceration hasn't helped,astronomical court fines haven't helped, Lawyers fee's haven't helped, lost homes,childern,wifes, girlfriends/boyfriends,jobs,ect. ect. What in the world is losing a license for life going to do to a person that is obviously an alcoholic. I'll tell you. It's going to fill our jails, cause people to become extremely violent, depressed,psycotic, and emotionally unstable.Alcoholics need rehabilitation,continued abstinance from the guidance of a 12 step program. Passing laws that disable recovering people for life will be one of the worst mistakes our educated government could institute!

Anonymous said...

i had a lap of insurance and i had an accident on 01/12/12. on 6/21/12 i paid for the insurance laps and they restored my license but i still had the ticket the officer gave me on the scene.that ticket was reduced to a parking tiket on january of this year 2013 but the dmv revoked my license anyways on that same moth of there any way i can appeal? i already fix the ticket and paid the lap of desperated i have to drive for work(full time) and i attent school (full time) please what else can i do?

Anonymous said...

Its official.. Today I got the letter denying my license due in part to 30+ year old violations.. I love this new law.. I may as well sell the house and join the throngs of unemployed! Thanks to Cuomo & the DMV gods I'm screwed!! I gotta get to the doc and get medications to treat worsening depression and relieve suicidal thoughts.. This is a load of crap!