Understanding a New York DWI Hardship Hearing: New York DUI Arrests and the Hardship Privilege

One of the worst side effects, if that is the proper way to describe them, of a New York arrest for DWI or DUI (pursuant to New York Vehicle and Traffic Law 1192.2) is the unfortunate reality that when you go before a judge for your arraignment the court will suspend your license to drive. For many people charged in New York City with drunk driving or driving while intoxicated, a license suspension may not mean all that much. After all, many denizens of NYC do not have vehicles and instead utilize public transportation. For others, however, a NYC DWI arrest for VTL 1192.2 and its subsequent license suspension can have terrible implications on a career, education or medical treatment. In these cases, a New York DWI lawyer or New York criminal defense attorney representing a client at a VTL 1192 arraignment can request what is commonly referred to as a “Hardship Hearing.”

The law of the New York DUI or DWI Hardship Hearing is found in VTL 1193[2][e][7][e]. Not merely a “regular” hardship, one must suffer an “extreme hardship” if one’s license to drive is suspended. Only then, upon a showing by the accused DWI driver, may the court grant a hardship license or hardship privilege. Even if the court does so, a defendant’s license to drive is still suspended, but driving privileges are restored on a limited basis.

Now that we know a straight hardship won’t cut it, what is considered an “extreme hardship?” Simply (although “simple” is not a term often used to described New York criminal law), there must be an inability to find an alternative method of travel to or from a job, medical treatment (for either the driver or a member of his or her household) or school. As noted above, the burden to prove the extreme hardship rests on the shoulders of the licensee (the accused DWI driver).

Still not an adequate definition of what is a hardship license and how one may obtain the same, the case of People v. Jewel Petway, 2013BK030567, NYLJ 1202608756888, at *1 (Crim., BX, Decided June 6, 2013), helps shed even more light on these issues. There, the defendant, who resided in South Carolina, managed her parents’ two hair salons in New York. One of the salons was in Harlem (Manhattan) and the other in Nanuet (Rockland County). The defendant argued that she suffered an extreme hardship because of the costs and time issues to travel every two weeks from South Carolina to New York. Without a car, the time for travel doubled and the costs rocketed higher. Further, the defendant argued it would be financially difficult to not only travel from each business location, but because she took the monies from the salons, traveling by public transportation with the monies would be dangerous.

In determining whether or not the court would grant the hardship license, the court put much weight into People v. Bridgman, 163 Misc2d 818 [1995]. Although not an appellate or Court of Appeals decision, the Bridgman court established the following factors to be used when ascertaining whether to grant the hardship privilege:

“(1) the presence or absence of licensed persons present in the licensee’s household; (2) the ability of other licensed household members to provide transportation for the licensee; (3) the occupation and health condition of the licensee; the proximity of the licensee’s place of employment, health care provider or school to his or her household; (5) the presence or absence of any public transportation or taxi service to or from the licensee’s household to the place of employment, health care provider or school (6) a consideration of the licensee’s ability to afford public transportation or taxi service as an alternative means of transportation; (7) the presence or absence of co-workers, friends or family members who may assist in the licensee’s transportation; and (8) any other factor that the court deems appropriate to the determination.”

Ultimately, in its fact specific analysis of this case, the court determined that Petway did not establish (remember, its the defendant’s burden) alternative means of transportation were unavailable, that no one could assist her, that she had medical conditions preventing her from using public transportation or that costs were prohibitive. As a result, the court denied Petway a hardship license or privilege.

Whether or not you are eligible for a hardship license is something that need not be determined at your arraignment (when you see the judge the first time), but the request must be made then. If you fail to secure a Hardship Hearing at your arraignment you may lose the opportunity to obtain such a conditional license (read that multiple times in case it was not clear). To be clear, you can request the Hardship Hearing through the assistance of your DWI attorney or criminal lawyer and then prepare to make your case during your adjournment period. Educate yourself on the law and take the proper steps to preserve this privilege should it be one that you need to pursue.

To learn more about New York DWI laws and DUI crimes, either review the links above or go directly to the Saland Law PC website’s New York DWI section. There you will find information on criminal statutes, reviews of legal decisions and other pertinent materials.

A criminal defense firm located in New York City, the New York criminal lawyers and DUI attorneys at Saland Law PC represent clients in drunk driving and driving while intoxicated arrests throughout the New York City area including Westchester County. Prior to establishing the criminal defense practice, the two founding partners served as prosecutors in the DWI Unit of the Manhattan District Attorney’s Office.

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