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Fiandach & Fiandach (Rochester NY)

585.244.8910

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The Drinking Driver Program

February 14, 2008

While it may be somewhat pessimistic, it is probably safe to say that when a motorist is arrested for an alcohol related operating offense for the first time, there is an extremely strong likelihood that he or she will ultimately attend the New York State Drinking Driver program. Moreover, this program serves two commendable interests. For the motorist it may provide a means toward, perhaps, what he or she seeks most; the privilege to operate a motor vehicle. For the State it serves the dual purpose of mandating a minimal level of alcohol education and, likewise, a means through which to screen the motorist for alcohol dependency and require treatment if that is determined to be the case.

Its importance to the motorist, as well as the high degree of frequency with which it is employed, mandates that any practitioner choosing to represent an individual charged with an alcohol influenced operating offense be thoroughly familiar with the implications of this program. Given the ultimate level of priority that a motorist tends to place upon his or her privilege to operate a motor vehicle, nothing, and I repeat nothing, can create greater difficulties for counsel as an assurance by counsel that the client is restricted license eligible, which assurance the Department of Motor Vehicles cannot honor.

Generally


Created by Vehicle and Traffic Law ' 1196, the alcohol and drug rehabilitation program has, as its expressed intent, the rehabilitation of drivers convicted of alcohol or drug related operating offenses. As an incentive to attend, this program will enable certain eligible drivers to receive a conditional use license. Generally, those eligible for such license will be individuals who have not previously been convicted of a ' 1192(1), ' 1192(2), ' 1192(3), and ' 1192(4) offense within five years preceding the arrest for which the motorist is currently under consideration. Similarly excluded, are those who have participated in the program within such five year period (N.Y. Veh. and Traf. Law ' 1196[4]).

The conditional or restricted use license will generally permit the motorist to drive to and from the motorist's place of employment. In the event that such employment requires operation of motor vehicle during working hours, then such operation will be permitted during the hours thereof. Likewise permitted is operation of a motor vehicle en route to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program, en route to and from a class or a course at an accredited school, college, or university, or at a State approved institution of vocational or technical training, to or from court ordered probation activities, to and from the Motor Vehicle Office for the transaction of business relating to the license or program, three unscheduled hours a week, to and from medical treatment necessary for the participant or a member of that participant's household, en route to and from a place including a school at which a child or children of the motorist are cared for on a regular basis, which child care is necessary for the motorist to maintain his or her employment or enrollment in an accredited school, college, university, or State approved institution of vocation or technical training (Id. at ' 1196(7)[a]).

The period of a conditional license is discretionary but will generally be that required by the term of suspension or revocation, unless the license was earlier revoked by the Commissioner of Motor Vehicles. Importantly, the license is, and will remain, contingent upon attendance at an alcohol or drug rehabilitation program established under Part 134 of Title 15.

Eligibility


While the forgoing generally sets forth those who will be eligible to attend the program, numerous exceptions and inclusions exist. Set out in full at 15 NYCRR 134.2, attendance is strictly limited to any person who was convicted on or after June 24, 1975, of a violation of any subdivision of section 1192 of the Vehicle and Traffic Law, or of an alcohol or drug‑related traffic offense in another state, is eligible for enrollment in the Drinking Driver Program unless he or she participated in the program within the last five years immediately preceding the date of conviction of the alcohol or drug‑related offense. Of note, this final regulatory clause represents the imposition of what is actually a dual requirement. To be eligible, the motorist must not have been convicted of a ' 1192 offense within the proceeding five years and must not have completed the DDP program within a similar period. Therefore, if the timing of the two convictions is close, counsel should take great care and secure an abstract of his or her client's license to determine exactly when the DDP program was completed. If the program was completed within the immediately proceeding five year period, to maintain eligibility sentencing should thereafter be deferred until the five year period has run. Such otherwise eligible person may, however, be prohibited from enrolling in the program by the judge who imposed the sentence upon the conviction. In the event that the judge so chooses to prohibit the motorist from attending, he or she must issue a statement indicating as much, and the statement should be prominently placed on the certificate of conviction or on an accompanying letter on court stationery (15 NYCRR 134.3[a]).

A motorist may similarly be barred by the Commissioner of Motor Vehicles in the event that there exist two convictions of a violation of section 1192 of the Vehicle and Traffic Law which resulted in personal injury in both instances (15 NYCRR 134.2).

Motorist's Obligations

As with any right, attendance in the Drinking Driver Program entails certain responsibilities on the motorist's part. Set out by 15 NYCRR 134.5, a motorist seeking to enroll in this program must execute a waiver setting forth that he or she agrees:


(1) to accept and abide by all conditions contained on the conditional license, if such a license is issued to him;

 

(2) to complete the rehabilitation program;

 

(3) to pay all fees required for the rehabilitation program;

 

(4) if, for any reason, any conditional license which is issued to him is revoked, or if he fails to satisfactorily complete the rehabilitation program, the suspension or revocation of his license resulting from the conviction for which he was enrolled in the program shall be reimposed for the full period of such suspension or revocation, unless such full period has already been effectively served; and

 

(5) before the issuance of a conditional license, if such a license is issued to him, and before the reinstatement or return of an unconditional driver's license is made to him, he must satisfy any outstanding administrative suspensions, notices or bars, such as suspensions or bars for failure to answer traffic summonses.

 

Importantly, no person shall be permitted to enroll in a rehabilitation program unless this waiver signed by the applicant is filed with the department (15 NYCRR 134.7).

Issuance of a Conditional License

Mere acceptance in the program, however, does not guarantee the issuance of a conditional license. The issuance of a conditional license will be denied to any person who enrolls in the program if a review of such person's driving record, or additional information secured by the department, indicates that any of the following conditions apply.

(1) The person has been convicted of homicide, assault, criminal negligence or criminally negligent homicide arising out of operation of a motor vehicle.

 

(2) The conviction upon which eligibility for a rehabilitation program is based involved a fatal accident.

 

(3) The person does not have a currently valid New York State driver's license.

 


Of some importance, this last paragraph does not apply to a person whose New York State driver's license has expired, but is still renewable. Nor is it applicable to a person who would have a currently valid New York State driver's license except for the revocation or suspension which resulted from the conviction upon which his eligibility for the rehabilitation program is based. Additionally, and of extreme importance to a motorist who has refused a chemical test in the conviction under review, it is not operative when he or she, at the time of enrollment, would have a currently valid New York State driver's license but for such refusal revocation.

Other restrictions barring attendance are if:

(4) The person has been convicted of an offense arising from the same event which resulted in the current alcohol‑related conviction which conviction would, aside from the alcohol‑related conviction, result in mandatory revocation or suspension of the person's driver's license.

 

(5) The person has had two or more revocations and/or suspensions of his driver's license, other than the revocation or suspension upon which his eligibility for the rehabilitation program is based within the last three years. This subdivision shall not apply to suspensions which have been terminated by performance of an act by the person, nor to a suspension or revocation resulting from a chemical test refusal, if the person had been convicted of a violation of section 1192 of the Vehicle and Traffic Law arising out of the same incident.

 

(6) The person has been convicted more than once of reckless driving within the last three years.

 

(7) The person has had a series of convictions, incidents and/or accidents or has a medical or mental condition, which in the judgment of the commissioner or his designated agent tends to establish that the person would be an unusual and immediate risk upon the highway.

 

(8) The person has been penalized under section 1192(5‑a) of the Vehicle and Traffic Law for any violation of subdivision 2, 3, or 4 of such section.

 

(9) The person is re‑entering the rehabilitation program, as provided in Section 134.10(c) of this Part, for a second or subsequent time.

 

(10) The person has been suspended under Section 510(2)(b)(2) of the Vehicle and Traffic Law for a conviction of Section 1192(4) of such law. Such person, however, may be eligible for a restricted use license pursuant to Part 135 of the Commissioner's Regulation (15 NYCRR 134.7).


The Conditional License

 

Assuming the motorist is awarded a conditional license, it will consist of two parts. The first part is a computer generated license which resembles a conventional photo drivers's license although it prominently bears the words conditional license. The second portion is completed by the DMV counselor and consists of a check the box sheet which also contains various lines for handwritten information. It is here where the restrictions such as time and place of employment are entered. Should the motorist subsequently be stopped while operating a motor vehicle, the police officer will be alerted to the existence of this sheet by the words conditional license upon the face of the photo license.

For this reason, the motorist is best counseled to be a broad as possible when supplying employment and other exception information to the counselor. All jobs should be noted. In the event that any portion of a job requires driving during working hours, the counselor must be made aware of this fact. The possibility of overtime or varying hours should also be made known.

Termination of Sentence

Along with the possibility of receiving a conditional license, attendance at a Department of Motor Vehicles Drinking Driver Program carries another important but little known advantage. Of crucial importance, the final sentence of ' 1196(4) provides:

Notwithstanding any contrary provisions of this chapter, satisfactory participation in and completion of a course in such program shall result in the termination of any sentence of imprisonment that may have been imposed by reason of a conviction therefore; provided, however, that nothing contained in this section shall delay the commencement of such sentence.

 

A similar declaration in reference to the motorist's license is made by the Commissioner's regulations which provide:


Satisfactory completion of a rehabilitation program shall be a proper alternative sentence to an alcohol‑ or drug‑related traffic offense and shall be considered full and adequate satisfaction of any penalty of fine that may have been imposed by a court in this State. If such a court has imposed a sentence of imprisonment, satisfactory completion of a rehabilitation program shall be considered full and adequate satisfaction of any portion of such sentence yet to be served. In addition, upon satisfactory completion of a program, any unexpired suspension or revocation which was issued as a result of the conviction for which the person was eligible for enrollment in the program shall be terminated by the commissioner in his discretion, as shall any revocation resulting from a refusal to submit to a chemical test arising out of the same incident (15 NYCRR 134.10[b]).

 

The effect of these sections is to bestow a significant reward upon the motorist who successfully completes the alcohol rehabilitation program. If the motorist is incarcerated,

Vehicle and Traffic Law '1196(4) mandates his or her release. Likewise, 15 NYCRR 134.10(b) permits the Commissioner, at his discretion, to terminate any licensing sanction, including a so-called refusal revocation. It should be noted however, that the jail waiver provisions apply only to Vehicle and Traffic Law '1192 offenses.

In People ex rel. Paganini v Jablonsky, (1992) 79 NY2d 586, 584 NYS2d 415, the petitioner was convicted, upon a guilty plea, of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (Vehicle and Traffic Law ' 511(2)(a)[i]). He thereafter sought to terminate his jail sentence based upon his completion of an alcohol rehabilitation program.

In holding that no such right existed, the Court of Appeals noted that, although the term alcohol or drug‑related traffic offenses is not defined in the statute, regulations promulgated by the Commissioner of Motor Vehicles, however, restrict eligibility to persons convicted of a violation of any subdivision of section 1192 of the Vehicle and Traffic Law or of an alcohol or drug‑related traffic offense in another state. As a matter of simple interpretation, the court found that termination may only be had of a sentence of imprisonment imposed upon a conviction for an alcohol or drug‑related traffic offense.


Revocation and the Twenty Day Stay

Procedurally, the steps necessary to gain admittance into the Drinking Driver Program are relatively straight forward. Assuming the motorist has not previously been convicted of an alcohol related offense, and further assuming that the sentencing judge has not prohibited the motorist from attending the drinking driver rehabilitation program, he or she will be given the familiar MV‑1192. This form consists of two parts. The top part constitutes a continuation of the motorist's privileges to operate a motor vehicle with the same privileges that he or she enjoyed prior to the conviction. This document will further set forth that the motorist's privileges to operate a motor vehicle will be suspended or revoked twenty days following conviction. It is important to note here that although many frequently refer to the twenty-day stay as a twenty-day permit or twenty-day license it is neither. It is merely a court issued stay which has been placed on the revocation order. It is for this reason that the sentencing court may not issue the stay in the event that the motorist has in place a revocation for failing to submit to a chemical test. The license has already been revoked, there is simply nothing to stay. The bottom portion of this form, in essence, is an order of suspension or revocation. Service of this order of suspension or revocation forms the basis of a charge of Aggravated Unlicensed Operation should the motorist be arrested for operating a motor vehicle during the suspension or revocation period.

DMV Determinations and Action Upon Conviction


After issuing the aforementioned documents, the Court will forward a certificate of conviction to Albany, whereupon an order of suspension will be issued which will be forwarded to the licensing arm of the Department of Motor Vehicles. If all goes as planned, within a twenty day period the motorist will receive an order of suspension or revocation that will contain various codes. While these codes are used internally by the Department of Motor Vehicles to ascertain whether or not a motorist is eligible to receive a conditional license and generally of little concern to counsel, general familiarity can be an advantage when counsel has been angrily informed by his or her client that he or she in not eligible to attend and/or receive a conditional license. Oftentimes a review of the document can disclose that the bar is not insurmountable. These codes can consist of three letters (with numbers) and provide as follows:

W ‑ The issuing Court has recommended that no license be issued; the motorist is therefore barred.

 

X ‑ He or she can attend the drinking driver program, but no conditional use license may be issued.

 

X‑1 ‑ The motorist is not barred from attending the drinking driver rehabilitation program. However, because of the occurrence of a homicide, assault, criminal negligence, or criminally negligent homicide arising out of the operation of the motor vehicle, issuance of a conditional use license is barred.

 

X‑2 ‑ The motorist is not barred from attending the drinking driver rehabilitation program, but involvement in a fatal accident bars issuance of a conditional use license.

 

X‑3 ‑ The motorist may attend the drinking driver rehabilitation program, but no conditional license may be issued because there is no valid New York operator's license. In the event that your client's license had expired at the time he or she became eligible to attend the drinking driver rehabilitation program, eligibility may not be barred provided he or she promptly renews.

 

X‑4 ‑ The person has been convicted of an offense arising from the same event which resulted in the current alcohol related conviction, which conviction would, aside from the alcohol related conviction, result in mandatory revocation or suspension of the person's driver's license.

 

X‑5 ‑ Similar to the above; however, the motorist has had two or more revocations and/or suspensions of his operator's license, other than the revocation or suspension upon which his eligibility for the rehabilitation program is based, within the last three years. This subdivision does not, however, apply to suspensions which have been terminated by the performance of an act by the person, nor to a suspension or revocation resulting from a chemical test refusal, if the person had been convicted of a violation of Vehicle and Traffic Law ' 1192 arising out of the same incident.

 


X‑6 ‑ May attend the drinking driver rehabilitation program, but may not receive a conditional use license as a result of being previously convicted of reckless driving within the past three years.

 

X‑7 ‑ May attend the drinking driver rehabilitation program, but may not receive a conditional use license as a result of the discretionary power of the Commissioner to determine that such license should not be issued based upon a review of the motorist's record.

 

X‑8 ‑ May attend the drinking driver rehabilitation program, but may not receive a restricted use license due to the pendency of an open suspension. In the usual situation the suspension will be the result of an unanswered ticket.

 

X‑9 ‑ The motorist may attend the drinking driver rehabilitation program, but is ineligible for the restricted use license as a result of court probation. Frequently, a term of court imposed probation will include a requirement that the motorist not reapply for a motor vehicle operator's license without the prior approval of the Court and/or his or her probation officer.[i]

 

X‑12 ‑ The motorist may attend the drinking driver rehabilitation program; however, he or she is ineligible for a restricted use license as a result of the conviction being entered upon operation of a motor vehicle with the gross vehicle rating of more than 18,000 pounds which contained flammable gas, radioactive materials, or explosives.

 

Should the code be preceded by the letter "Y," it is an indication that the individual is eligible for a conditional use license. Of importance in the "Y" code is Y‑1. Y‑1 indicates that the individual must do something, inasmuch as there is an administrative stop, an outstanding traffic ticket, or something of a similar nature.

The last level of grouping are the "Z" codes. The "Z" code means that the individual is ineligible to attend the drinking driver rehabilitation program, as well as to receive a conditional use license for the following reasons:

Z‑1 ‑ The motorist is ineligible as a result of attending the program within the preceding five years.

 


Z‑2 ‑ The motorist has had a prior alcohol related conviction, which conviction has occurred since November 1, 1988. It should be noted here that attendance at the program is not necessary to impose this bar. There is, therefore, no merit to saving DDP attendance for a later conviction.

 

If everything falls into place, within twenty days the motorist will receive notification of suspension and/or revocation from the Department of Motor Vehicles, as well as an application to apply for attendance in the drinking driver rehabilitation program, and/or receive a conditional use license should he or she be eligible.

Difficulties can enure in the event that the motorist has recently moved and failed to advise Albany of his or her new address. Further, administrative backlogs may result in notification being disseminated beyond the twenty day period.

Therefore, it is sound advice for counsel representing the motorist to advise his or her client, preferably in writing, that should the eighteenth or nineteenth day arrive without notification from the Department of Motor Vehicles, he or she should immediately proceed to the Enforcement Unit, which is generally located at the head Department of Motor Vehicles administrative office for his or her county.

The motorist should thereafter present the order of revocation, whereupon the local enforcement division will be able to verify whether or not the motorist is eligible for a restricted use license. At such time, the motorist will have to fill out an application identical to that which he or she would fill out upon renewal, and will also be interviewed by an alcohol or drug rehabilitation counselor, who will thereafter select a program for the motorist to attend.


Also at this time the counselor will fill out a DMV Form 44‑C. The Form 44‑C contains the terms and conditions of the operator's license. Should the motorist be a traveling salesperson, or have an occupation which requires he or she to drive, generally this will result in a box being checked whereby the motorist will be able to operate during the hours of his or her employment. In the event that he or she has a more sedentary occupation, the hours of arriving and leaving work will thereafter be placed upon the form.

The license, at this time, will consist of a computer generated license, which will bear a notation that it is a conditional license, as well as the manually generated 44‑C.

The fee for receiving a conditional use license is presently seventy‑five dollars. In the event that the motorist had received a so-called pre-conviction license, the fee is waived. The motorist at that time will also be required to pay any fee which will be due if the license is up for renewal. When explaining the procedure to your client it is wise to advise him or her that the fee for attending the New York State Drinking Driver Rehabilitation Program is one‑hundred and twenty‑five dollars, which amount is due upon the first session. The motorist should also be advised that if he or she does not complete the drinking driver program, and any and all subsequent referrals, the conditional use license will be canceled, and if he or she wishes to reinstate the conditional use license, a one‑time only reentry will be permitted, for which there is charged a fifty dollar fee.

Revocation of The Conditional License


Of unquestionable importance, the conditional license may be revoked by the Commissioner of Motor Vehicles for sufficient cause. This includes, but is not limited to, the failure to register in the program, failure to attend or satisfactorily participate in the sessions, conviction of any traffic infraction other than one involving parking, stopping or standing. On this point comment should be made that there exists an inconsistency between Vehicle and Traffic Law '1196 and the Commissioners regulations, which set forth that a conditional license * * * shall be revoked upon: the holder's conviction of at least two traffic violations other than parking, stopping, standing, equipment, inspection or other non-moving violations where such violations occurred during the period of validity of the conditional license (15 NYCRR 134.9[c]). The conditional license can also be revoked upon a conviction of any alcohol or drug‑related traffic offense, misdemeanor or felony. Such a revocation is automatic; that is to say that the motorist is not afforded the right to a hearing. A revocation for any of the foregoing reasons shall be issued by the Commissioner upon a receipt of a certificate or certificates of conviction, or in the case of failure to attend any portion or portions of the rehabilitation program, upon certification of the person administering such program that the motorist has not attended (15 NYCRR 134.9[c]). Additionally, the commissioner is afforded the right, after a hearing, to revoke the conditional license or privilege upon receiving notification or evidence that the offender is not attempting in good faith to accept rehabilitation. Of some importance and no surprise, in the event that the conditional license is revoked, the fee which has been previously paid will not be refunded (Vehicle and Traffic Law '116(7)(e); 15 NYCRR 134.9[c]).

Of crucial importance, if a restricted use license is subsequently revoked, the entire original period of revocation or suspension will be reimposed. In other words, if the motorist had only two months to go on an initial alcohol revocation, the entire six months would be reimposed.

Action Upon Completion


Satisfactory completion of a rehabilitation program, or expiration of the term of suspension, will initiate the necessary action to provide termination of the suspension or revocation, which was the basis for the motorist's entry into the program. Of importance upon a conviction for driving while ability is impaired, it should be pointed out that should the license be restored upon satisfactorily completing a period of suspension, the motorist's license may nevertheless be withdrawn should he or she fail to complete the drinking driver rehabilitation program. Of more than minor importance, a conditional license will not be renewed more than one year after issuance of such license or if the revocation is issued as a result of a chemical test refusal and the holder of a conditional license has not yet paid the civil penalty as required by Vehicle and Traffic Law ' 1192 (15 NYCRR 134.11).

Should the individual fail to attend the drinking driver rehabilitation program, the Department of Motor Vehicles is empowered to notify the sentencing court so that the same may take further action as it deems necessary (15 NYCRR 134.12).

Interstate Issues

One of the unique features of 15 NYCRR 134 is the manner in which it permits New York motorists who are convicted of an alcohol or drug related operating offense in a sister state to nonetheless receive a conditional license. 15 NYCRR 134.2 sets out that [a]ny person who is convicted * * * of a violation of any subdivision of section 1192 of the Vehicle and Traffic Law, or of an alcohol or drug‑related traffic offense in another state, shall be eligible for enrollment in an alcohol and drug rehabilitation program. To facilitate such attendance, 15 NYCRR 134.13 provides:

All of the provisions of this Part shall be applicable to the holder of a New York State driver's license who has been convicted of an alcohol‑ or drug‑related traffic offense in another state except that those provisions which relate to the actions of the convicting judge, the effect of satisfactory completion of a rehabilitation program upon a sentence of fine or imprisonment and notification to the court by the department shall not be applicable. In addition, if the driving privileges of a New York licensee convicted in another state are suspended or revoked by such other state, the conditional license issued by the commissioner will not permit the holder to operate in such other state during the term of suspension or revocation of his driving privileges within that state, unless specifically permitted by that state.

 


Thus, if a New York motorist is convicted in another state and sentenced to attend a drinking driver rehabilitation program, he or she will be permitted to attend the New York driver rehabilitation program and, if otherwise eligible, will also receive a conditional license. This license will not permit operation within the sister state where the conviction is entered unless the law and/or regulations of that state explicitly provide.

In practice, this will require the motorist to submit sufficient proof to the NYS Department of Motor Vehicles that such person has been required or permitted to attend such program. In most instances, a certificate of conviction or similar document from the sentencing court should prove acceptable.

On a related matter, whether a Vehicle and Traffic Law '1196 conditional license will be honored outside of the State of New York is dependant upon the rules and regulations of the sister state (15 NYCRR 134.9[d]). New York will, however, honor a similar type license issued by another state to a resident of the issuing state to the extent of the conditions imposed thereon (15 NYCRR 134.9[d]).

Effect Upon a Refusal Revocation

Attendance at the Drinking Driver Program and issuance of a conditional license is limited to those situations where the motorist has been convicted of an alcohol or drug related operating offense. Therefore, no conditional privileges are available if the motorist has had his or her privileges revoked for failing to submit to a chemical test and has not yet been convicted. Following conviction, however, the suspensionary periods will merge to the effect that successful completion of the Drinking Driver Program will result in discretionary termination of Aany unexpired suspension or revocation which was issued as a result of the conviction for which the person was eligible for enrollment in the program . . . as shall any revocation resulting from a refusal to submit to a chemical test arising out of the same incident (15 NYCRR 134.10[b]).


The effect of the foregoing as well as 15 NYCRR 155.5 and Vehicle and Traffic Law '262 create an interesting opportunity for a motorist who has been revoked for refusing to submit to a chemical test to maintain limited operating privileges.

At the time of the administrative refusal hearing, the motorist will generally have his or her operating privileges revoked. Approximately one month after the hearing, the motorist will receive a formal determination which also constitutes an order and a demand for the surrender of the license if it has not previously been surrendered. At this stage, the motorist may, upon payment of a $10 fee, file an administrative appeal by filing the required form with the Department of Motor Vehicles. If the motorist checks the box requesting a stay of the revocation and if the motorist has not had previous conviction for an alcohol or drug related operating offense or a revocation unrelated to the present refusal revocation, the Commissioner, although discretionary, will generally issue a stay of the revocation. This stay will automatically be extended until determination of the appeal provided the necessary documentation has been filed, a period which generally runs from four to six months. If the prosecution of the underlying alcohol or drug operating offense has been concluded during that period and the motorist has received a conditional license as a result of attendance in the Drinking Driver Rehabilitation program, completion of that program will result in the termination not only of the revocation or suspension imposed upon the conviction, but of the refusal revocation as well. This will have the practical effect of reducing the total period during which the motorist is without operating privileges to about six weeks, a significant reduction in the period which would ordinarily be imposed.

One caveat exists however. The motorist must file a waiver of hearing form and withdraw the administrative appeal at the time of the conviction.

Operating Outside the Scope of a Conditional License


While some confusion formerly existed as to the proper charge when a motorist was found to be operating outside the terms of a Vehicle and Traffic Law '1196 license (See, People v. Tousley (Yates Co. Ct. 1976) 86 Misc2d 1059, 383 NYS2d 996; People v. Sabin (Westchester Co. 1988) 139 Misc2d 641, 528 NYS2d 288), in 1988, the legislature amended '1196 of the Vehicle and Traffic Law to include subdivision 7(f). This provision sets out that: [i]t shall be a traffic infraction for the holder of a conditional license or privilege to operate a motor vehicle upon a public highway for any use other than those authorized pursuant to paragraph (a) of this subdivision. Thus, it is apparent that for a motorist charged with operating outside of the scope of his or her restricted use license, the correct charge is the infraction set out by this section.

Although conviction under this section carries the rather hefty fine of not less than two hundred dollars nor more than five hundred dollars and/or a term of imprisonment of not more than fifteen days, perhaps the most onerous proviso is that as a result of a conviction under this subsection the conditional license shall be revoked by the commissioner upon receiving notification from the court that the holder thereof has been convicted of this offense.

Failure to Complete

In the event that the motorist has been sentenced to a conditional discharge which required attendance in the Drinking Driver Program and the motorist has failed to complete the program and any additional counseling, the Department of Motor Vehicles is required to notify the sentencing court of such fact whereupon the court may take the necessary steps to resentence the defendant for a failure to meet the conditions of any conditional discharge (15 NYCRR 134.12).



[i].The X‑9 code may be lifted if the Department of Motor Vehicles is provided with a letter upon the Court's stationery, advising the Commissioner that the Court has no objection to the individual receiving a restricted use license. In this regard, a probation officer's letter is not enough.



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