Hardship Licenses

A defendant charged with DWI should be aware that New York State mandates the immediate suspension of his New York State driver’s license pending prosecution.

This so-called “Prompt Suspension Law” calls for a prompt suspension at arraignment (which is typically the first court appearance for most defendants). Arraignment is also the time at which the court initially reads the charged crimes to the defendant and the defendant pleads not guilty.

If the defendant is found to have a BAC above .08% at the time of his arrest, his license will be suspended at arraignment.

The “Prompt Suspension Law” does not apply if a driver is charged with DWI (as a result of ingesting drugs - not alcohol) or DWAI (meaning having a BAC below .08%) or where a driver has refused to take a chemical test or breathalyzer (also called a DWI Refusal).

Pursuant to the “Prompt Suspension Law”, the court will order that the driver hand up his New York State driver’s license immediately at the time of arraignment (which is usually the first court appearance).

For out of state drivers charged with DWI the court will order that the person’s New York State driving privileges be suspended pending the final disposition of the case.

Accordingly, from the date of arraignment (usually the first court appearance) until final disposition of your case, you will not have a license (or privilege to drive in New York State) unless a hardship license is granted.

However, a driver whose license is suspended pending prosecution in New York State (for having a BAC above .08%) may be granted a hardship license in certain limited circumstances.

The hardship license may only be granted to allow a driver to drive to and from:

  1. Home;
  2. Work; and
  3. Medical care for them or their immediate family members.

The statute requires an “extreme hardship.”

Accordingly, if the defendant’s place of work, school or medical is easily accessible (or close to home) or there is additional transportation available (like public transportation or another licensed driver in the home), a hardship license will not be granted.

Moreover, the hardship license permits a driver only to drive to and from his or her “principal place of employment”. A driver will not be given an open ended license to drive to multiple locations during the day (such as frequently occurs with construction workers or medical personnel who drive to and from multiple facilities during the day).

If it can be shown at the hardship hearing that there are no licensed drivers in a person’s home who could drive you, and public transportation is not easily available or is extremely expensive and beyond a person’s means, a hardship license may be granted.

A person charged with driving while intoxicated is not eligible for a hardship license if he has a prior DWI conviction within the preceding five years or where he has refused to take a breathalyzer or a chemical test.

A hardship hearing must be conducted within three days of arraignment under New York State Law. No exceptions may be made to this three day requirement. The three day requirement for obtaining a hardship license typically presents problems for drivers who appear in court for the first time without a DWI lawyer. Accordingly, it is imperative that a driver speak to a lawyer immediately after their DWI arrest.

A defendant’s testimony alone is insufficient at a hardship hearing. A person must bring to court with them a family member, friend or a co-worker who will corroborate their story of “extreme hardship” in open court and under oath administered by a judge.

As a long time DWI attorney I have witnessed firsthand how devastating a long term loss of a person’s driver’s license may be. Accordingly, I will sit down with you to help you formulate the best game plan for obtaining a conditional license at the hardship hearing.

If you need to speak to an attorney regarding obtaining a hardship license, please contact Stewart A. McMillan immediately at (914) 358-4326 or on his 24 hour cell phone at (917) 538-5016 or e-mail him at samcmillan@mcmplaw.com.

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