Can a New York State Judge Seal a Conviction for a Per Se DWI if I Blew Above a .08: DWI and NY CPL 160.59

Unlike DWI arrests in New York where you refuse to “blow,” there are other DWI or DUI crimes that are based on evidence of a person having a BAC of .08 or more. These drunk driving crimes are codified in New York Vehicle and Traffic Law 1192.2. While VTL 1192.2 is the same misdemeanor offense as a Common Law or Refusal DWI of VTL 1192.3, they are also different. These former DUI crimes are not based on whether you were staggering, unsteady on your feet and had slurred speech, but simply on whether your BAC was equal to or exceeded .08 even if you did not exhibit any of the indicia of intoxication. This blog entry addresses the conviction sealing eligibility issues found in New York Criminal Procedure Law 160.59 as it relates to a VTL 1192.2 arrest and conviction. Further, this article briefly examines whether you can seal a DWI conviction and, if so, how you file an application to seal your DWI.

As identified in another entry involving Common Law DWI, VTL 1192.3, the fundamental questions you and your conviction sealing lawyer will address are both standard as well as mandatory. Is your DWI conviction more than ten years old? Other than this conviction for DWI, do you have any other criminal convictions? If so, is it a sex offense or violent crime? Do you have any current cases winding their way through the criminal justice system? In short, more than two criminal convictions in total, more than one felony criminal conviction, any conviction for a sex or statutorily defined violent crime, and a conviction ten years old or less is a bar to sealing your DWI, or any, conviction. Some of these elements, such as the timing of the conviction you seek to remove from your public record, is eventually surmountable when the time frame exceeds ten years, but other perquisites for criminal record sealing in New York – such as the number of felony convictions and whether they violate New York Criminal Procedure Law 70.02 – are not.

Looking at your conviction for DWI, assuming you are eligible, the court will turn from mandatory questions regarding eligibility to those involving merit. Why do you “deserve” to have your DWI arrest and conviction removed from the public domain and why should you be able to avail yourself of the benefits of New York Human Rights Law 296(16)? Did you have a prior or subsequent conviction for VTL 1192.1, Driving While Ability Impaired? Were there minors in the vehicle? Even if there was no injury or damage to another person’s property, did you crash your vehicle or were you involved in some form of an accident? At the time of your screening and since your arrest, did any professional recommend that you receive alcohol or substance abuse treatment? If so, did you comply and ultimately succeed in completing that treatment?

By no means are these issues and questions the only ones that you will face. For that matter, the evidence of your old conviction may be so unfavorable that either a judge decides to have a hearing or is required to do so because the prosecution exercises its rights to challenge your NY CPL 160.59 sealing motion or application. Whatever the case may be, being prepared, understanding the law, and having the right advocate can mean the difference between keeping your criminal status quo or breaking free from the criminal mark that has kept you down for more than a decade.

To read more about criminal conviction sealing in New York as well as how it applies to DWI and other crimes, follow the links above. Crotty Saland PC is a New York criminal conviction sealing firm representing clients in all NY CPL 160.59 motions throughout the State. The New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office.

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