Dangerous Repeat Offenders and Increased Look Back Time Periods

A trend that I am seeing in the area of driver’s licenses is an increasing number of clients who have committed multiple alcohol-related offenses who are facing serious limitations to their ability to have an unrestricted driver’s license, even a lifetime denial of their driving privileges.

This is an area of the law that attorneys who represent clients charged with DWI related matters need to be fully educated so they can sufficiently inform their clients as to ramifications of their conviction. They can labeled as dangerous repeat alcohol and drug offenders, and as such, can be subject to New York State’s lifetime denial of relicensure.

25 year Look Back Period for Prior Convictions Rather than 10 Years

Notably, the courts are now able to utilize an extended look back period in these cases of 25 years, when the look back period used to be only ten years. Also, the courts can combine alcohol-related offenses with other offenses such as reckless driving which they could label as serious driving offenses. As a result, I am finding that more existing or potential clients are calling me and saying, “Hey, I just received this letter from the DMV saying that I have had three or four alcohol-related driving convictions in the past twenty-five years; and as a result, they are telling me that I have a lifetime license suspension.”

A driver with three or more alcohol or drug related convictions within a 25-year period of time, without another serious driving related offense, and whose current revocation is not as a result form a alcohol related conviction, will be subject to a two-year license revocation in addition to any statutory revocation. Serious driving offenses per the NYS DMV include a fatal accident, a driving related criminal law incident or a conviction of two or more violations that carry five or more points.

Drivers who have three or more alcohol or drug related convictions in the past 25-year period, who do not have a serious driving conviction on their record but whose current revocation is for an alcohol or drug related driving conviction will be denied a license for five years in addition to the statutory revocation. Further, when they are permitted to obtain a license after the five-year period, they will be categorized as a problem driver and they will have an interlock device mandated for another five-year period. What that means is a driver with multiple DWI convictions can find themselves without full driving liberties for a period of over ten years. Five years with no license, five with an IID restriction combines with whatever statutory exposure they had for the most recent conviction.

Lifetime License Suspension for Multiple Convictions

Drivers with three or more alcohol or drug related driving convictions within 25 years, who also have a serious driving conviction, will be permanently denied NYS driving privileges barring extenuating circumstances. Drivers who have five or more alcohol related driving convictions, who have no other serious driving related conviction, will also be permanently denied a NYS driver's license.

If you receive a lifetime license suspension there is a minimum five-year waiting period in effect with respect to your license revocation; and after that time period elapses the DMV Commissioner is allowed to approve an application for a relicensure. All too often, however, the DMV is denying that first relicensure application and is forcing drivers to face another two-year period of revocation at a minimum.

The lifetime denial of relicensure is becoming so prevalent that we are seeing a cottage industry pop up in relation to assisting people with getting their licenses back once they have been put in this lifetime denial category. An effective way to help a client achieve this goal is to make an application to the court and file a Coram Nobis motion to have one of the client’s alcohol-related offenses re-opened and their conviction changed to some other charge that will not have the impact of a lifetime license suspension.

Simply put, we try to get the DA’s consent to the motion we have filed, and then we try to have the client’s charge changed to something less onerous. If the client has been convicted of a violation-level DWI our task is easier, as they may be able to plead to some other charge instead; and if they have a misdemeanor DWI on their record we can often have the charge changed to something else. For many years, we would seek to change a previous alcohol-related offense conviction to a charge of nystagmus Reckless Driving—a Misdemeanor under New York Vehicle and Traffic Law Section 1212 that comes with five points. However, that strategy no longer works since the law changed in 2012; now you can have one or two DWI-related convictions on your license record, and as well as a serious driving offense such as reckless driving, and you still be subject to lifetime suspension. Consequently, the only way to get a lifetime suspension lifted before the waiting period terminates—which, again, is after a minimum of five years—is to have one of the convictions that is causing you to be in that category vacated and replaced with something else.

Article adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books, A Thomson Reuters business.