In the State of New York, a DWI arrest and conviction can be based on different theories of the law. One such DUI or drunk driving crime is found in New York Vehicle and Traffic Law 1192.3. Often referred to as either Common Law DWI or Refusal DWI, this Driving While Intoxicated crime is based not on a “blow” of .08 or higher, but merely on a police officer’s experience and observations of, for example, a flushed face, watery-bloodshot eyes and the smell of alcohol on your breath. No, this blog entry does not address the legality of a refusal to provide a breath sample or the legal sufficiency of a DWI complaint charging VTL 1192, but a set of question asked by countless individuals convicted of DWI in New York: Can I seal my criminal conviction for a Common Law or Refusal DWI or DUI and, if so, how do I seal and remove the DWI arrest from my rap sheet or criminal record?
Examining New York Criminal Procedure Law 160.59, the key elements for sealing pursuant to this law are as follows: You, the convicted person, have no more than two criminal convictions. Of these two crimes on your record, no more than one can be a felony offense. Irrespective of these factors, no conviction can involve a violent offense according to NY CPL 70.02 nor a sex crime. You do not have any currently pending criminal cases and it has been at least ten years since your conviction including any time you were incarcerated on your old case.
The above questions are mandatory issues the judge or court that sentenced you must examine before even finding you eligible for criminal conviction and case sealing in New York State. Assuming you pass these threshold matters, a judge may, and likely will, review additional factors. Did you have an alcohol problem? What, if any treatment did you receive? Do you have proof of treatment? Was there a car accident? Where there children in your vehicle? How many years have passed since your arrest? What are you doing now in terms of your career, family, life, and involvement in the community? How has this conviction affected you? Since this conviction or prior to it, did you plead to a DWI violation (non-criminal) VTL 1192.1, Driving While Ability Impaired. No, these are not all of the questions, but to draft a strong and convincing motion for sealing your DWI you and your New York conviction sealing lawyer must have answers to these questions and more. Remember, advocacy is critical in any application for CPL 160.59 sealing as you likely will have one chance to sway the court.
Whether your criminal conviction for VTL 1192.3, or any DWI offense, is one that is eligible for sealing and whether your NY conviction sealing attorney believes that you can present a compelling argument is dependent on the information you provide and the facts of your conviction. Can the prosecution object to your motion? Will a judge mandate a hearing prior to rendering a decision on sealing your criminal case? All of these questions and issues are ones you will address, but know if successful, “hiding” or “erasing” your DWI from public view can alter the trajectory of your life since you made a grave mistake over a decade ago.
Take advantage of CPL 160.59. Benefit from New York Executive Law 296(16), also referred to as NY Human Rights Law 296(16), that prevents New York employers from inquiring about your sealed conviction. Educate yourself by reading through the vast materials and information provided on this blog and Crotty Saland PC’s New York Sealing Information Page where you can find, among other things, the NY CPL 160.59 Conviction Sealing Quiz.
Crotty Saland PC is a New York criminal defense and conviction sealing firm. The CPL 160.59 lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients in all conviction sealing motions and applications throughout the State of New York.