The DWI “Hardship Hearing” in New York Courts: Keeping Your Right to Drive After a DUI Arrest

In New York City as well as the outside counties of Westchester and Rockland, Drunk Driving (a/k/a DWI or DUI) is a crime that is routinely prosecuted. Unlike intentionally malicious crimes, DWI allegations found in VTL 1192 are often alleged against hard working, honest and generally law abiding people who may have had a lapse in judgment. Fortunately, DWI lawyers in New York who are experienced in defending clients against drunk driving arrests may be able to protect their client’s limited right to drive while a suspension is pending. Commonly known as a “Hardship Hearing,” if granted by a New York court (it makes no difference whether the DWI allegation occurred in Manhattan, Brooklyn, White Plains or Yonkers), an individual accused of DUI may be able to drive, for example, to and from work and for other limited purposes. Keep in mind that a Hardship Hearing can be granted in cases involving VTL 1192.2 for “blowing” in excess of .08 on a breathalyzer (actually an intoxilyzer) as well as VTL 1192.3 cases as long as the latter is not for a refusal,

The Hardship Privilege: VTL 1193(2)(e)(7)(e)

Judges will suspend your right to drive in New York at your arraignment for a DWI crime, such as where you “blow” a .10 in an intoxilyzer, even if the court where your case is pending “finds that the suspension imposed…will result in an extreme hardship.” However, in such cases a “hardship privilege” may be granted. As a result, if your DWI attorney is successful in arguing that you have an “extreme hardship,” then you may be able to drive in limited circumstances.

Defining “Extreme Hardship”

An extreme hardship is defined by statute and is limited in scope. In short, an extreme hardship means an “inability to obtain alternative means of travel” to or from work, medical treatment or college.

How to Prove an “Extreme Hardship”

It is critically important to understand that merely stating it is difficult to travel to and from work, medical appointments for a child or classes at a university will not be sufficient to establish the hardship as required by law. In fact, the law does not permit a favorable finding (i.e., granting of a “hardship license”) solely on the testimony of the defendant. Instead, other evidence would be necessary. This evidence can include testimony from other members of the household, maps of travel to and from work including the location of and times of service for public transportation, etc. If a hardship privilege is to be successful, it is important to discuss your method of proving that hardship with your criminal attorney well before you step into court. There is no substitute for preparation and the burden is yours.

When Can a Hardship Hearing be Granted

An arraignment cannot be adjourned beyond three days for the purpose of a Hardship Hearing. Practically speaking, in New York City an arraignment often time takes place and the matter is adjourned within this time frame to another courtroom within the three days.

Other Relevant Hardship Information

Even if your legal counsel is successful in establishing the “extreme hardship” (the burden is yours as opposed to the prosecution to establish that no hardship exists), your right to drive is limited. If you drive beyond that set forth on the record by the court, you may be arrested and charged with new crimes. Additionally, you should not confuse a Hardship Hearing with a Refusal Hearing. The latter occurs when your license is revoked for failure to comply with a lawful and proper request to supply some form of sample (usually breath) to law enforcement for the purpose of establishing your BAC. While a Hardship Hearing is conducted in a criminal or local court (outside of NYC), a Refusal Hearing is conducted by an administrative judge at the Department of Motor Vehicles. These two hearings are completely distinct and separate.

Although this entry is only a brief synopsis on a limited area of DWI laws, to further educate yourself on New York DWI crimes and DUI laws, please follow the highlighted link. There you will not only find extensive information on criminal statutes, but other useful links addressing legal decisions.

Founded by two former Manhattan prosecutors who served under Robert Morgenthau and in the Trial Division and DWI Unit, the New York criminal lawyers at Saland Law PC represent those accused of DWI and DUI crimes throughout New York City and many suburban counties.

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