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New rules take away licenses for repeat DWIs

Proposed DMV guidelines go beyond the existing state law

Saturday, April 6, 2013
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— People with serious drunken driving records have recently started losing their driver’s licenses for longer than in the past, without any change in state law.

The state Department of Motor Vehicles is taking administrative steps to get more people with three or more DWI convictions off the road — and keep them off, in some cases, by never giving them a license again.

Those people, termed “dangerous drivers,” will lose their licenses for a minimum of an additional two to five years beyond what state criminal law says. In the case of people with five previous DWI convictions, they are being told they can never drive again — at least not legally.

“A guy who has a family to support, he’s going to drive,” one county probation officer remarked during a recent discussion with police agencies.

Plans for the new rules were announced by Gov. Andrew M. Cuomo in September, though few news organizations picked up on it. They are now in final draft form, but are being administered as though they were in effect.

“We are saying ‘Enough is enough’ to those who have chronically abused their driving privileges and threatened the safety of other drivers, pedestrians and passengers,” Cuomo said.

But critics — including defense attorneys, and even some people in law enforcement — worry about the long-term impact of the rules, as well as the appropriateness of enacting new punishments through administrative rules rather than legislation.

“I can understand the goal that DMV is seeking to achieve, but this is so broad, so sweeping and so final that it’s going to be seen as unfair. I think it is unfair,” said Frederick Rench, a Clifton Park defense attorney. “This is beyond anything a judge imposes.”

The rules don’t allow for any shortening of a revocation period if a convicted driver completes a state-approved drinking driver course. Out-of-state DWI convictions count toward the lifetime record.

“You might want to use the word draconian,” said Paul Callahan of Duanesburg, a criminal defense attorney and former DWI prosecutor.

Pending finalization of the new rules, DMV has been postponing license renewal decisions for people with multiple drunken-driving convictions since early 2012 — a policy a state Supreme Court judge in Albany County upheld in October. That means people with multiple convictions aren’t getting their licenses back, so it’s as though the new rules were already in effect.

“People have been getting letters from DMV saying they can’t get their licenses back,” Callahan said.

Saratoga County District Attorney James A. Murphy III said 50,000 New Yorkers with three DWI convictions have valid or temporarily suspended licenses. An estimated 17,500 drivers with three or more DWI convictions have been in crashes that killed or injured someone.

“It’s not because prosecutors aren’t doing their jobs; it’s because DMV is giving them their licenses back,” said Murphy, who supports the rules. “Something drastic had to be changed administratively.”

In general, the rules — now being finalized after some alterations in response to public comments — make it much harder for people with DWI records to get their driving privileges back.

Among the key provisions:

• DMV will look back as far as 25 years for drunken-driving convictions to determine if a driver has a persistent problem. Current criminal law only looks back 10 years, determining that those with a prior DWI conviction within that time can face a felony charge.

• Driving privileges would be permanently denied to those with five or more convictions, or three or four convictions plus a “serious driving offense.” They would be termed “persistently dangerous drivers,” and forbidden to drive unless there are “compelling or extenuating circumstances.”

• Three or four DWI/drugged-driving convictions without a serious driving offense would result in DMV denying a license for an additional five years after the period set by law. Then, if a license is granted, the driver would be required to use an alcohol-sensing ignition interlock device on the vehicle for an additional five years.

During a public comment period on the draft rules, some critics called the proposals unduly harsh. Others questioned whether imposing new punishment on those who are already convicted and sentenced is unconstitutional.

DMV, however, is defending its efforts.

“The department’s adoption of these regulations is not a usurpation of the legislative process, but rather the appropriate exercise of the commissioner’s discretion,” DMV officials said in part of their written response to public comments.

The department argues that the new rules will improve highway safety. More than 300 people are killed and 6,000 injured in New York each year in alcohol-related crashes. In 2010, 28 percent of the alcohol-related crashes that resulted in injuries involved a driver with three or more alcohol-related convictions.

Assemblyman Jim Tedisco, R-Glenville, praised the effort, but said it doesn’t go far enough — he believes a combination of any three drunken- or aggressive-driving convictions should be enough to take a motorist off the road forever.

“At some point, you have serious, dangerous and repeat drunk drivers, and you have to get them off the road,” Tedisco said.

In 2012, he and state Sen. Hugh T. Farley, R-Niskayuna, introduced legislation to allow for permanent revocation in response to the death of Charlotte Gallo, a senior citizen killed by a repeat drunken driver while crossing a street in downtown Schenectady in 2010. The legislation has not passed.

Tedisco said the driver who hit Gallo, who was a volunteer at Proctors, had no drunken-driving convictions but a history of violation tickets.

“Many of the dangerous drivers out there aren’t drunk drivers, they’re what we call cowboys,” Tedisco said. “They want to go 100 mph.”

He pointed to the case of Dennis Drue, the 22-year-old who now faces felony manslaughter charges in the Dec. 1 crash on the Northway in Saratoga County that killed two Shenendehowa High School students. Prior to the crash, Drue had no DWI arrests, but a record of being issued traffic violation tickets. The indictment accuses Drue of being impaired by both alcohol and marijuana at the time of the crash.

Tedisco said he has no problem with the new license rules being imposed administratively, rather than through a change in state law.

“I don’t care how it’s done; it has to be done,” Tedisco said. “There are people who can’t be rehabilitated if they have 19 driving convictions.”

People who continue to drive after their license is revoked are subject to arrest on a charge of aggravated unlicensed operation, which under some circumstances can be a low-level felony.

Rench, the defense attorney, said the rules will alter how attorneys and clients approach every DWI case, and will lead to more cases being taken to trial.

“Think of all the trials this will generate. It’s going to overburden the system,” he said.

Murphy, whose office prosecutes about 1,100 drunken-driving cases a year, acknowledged one of the downsides of the new rules will mean more drivers wanting to take their DWI cases to trial, because the stakes for a conviction will be higher.

“We are finding people that are charged are less likely to plead to an offense, especially people who think they might re-offend,” Murphy said. “People who maybe made one mistake continue to plead. They have learned a great lesson, and will never be back in front of a judge again.”

Murphy already has four full-time DWI prosecutors on his staff, and said the demand for more trials could force him to ask for more help. But he said trying cases when necessary is part of a prosecutor’s job.

“That’s what we’re here for,” Murphy said. “We will not change our policy of no plea bargains with repeat offenders.”

The new rules make it harder for defense attorneys to give proper advice to their clients, according to Callahan. For example, when motorists and their attorneys request driving records, they generally go back 10 years, not the 25 years the DMV is now using to search a driver’s history, Callahan said.

“It makes it difficult for the attorney to advise their client,” he said.

Rench said attorneys will have to file Freedom of Information Law requests to get a client’s 25-year record, and looking back that far means a middle-aged person’s youthful arrests could lead to their license being revoked if they have another DWI or dangerous-driving conviction.

Callahan also noted that the rules say the revocation will remain in force even if the convicted driver has successfully completed a drinking driver treatment program.

“I believe at some point somebody will take it to court,” he said.

 
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comments

April 7, 2013
11:46 a.m.
safny says...

How is it possibly constitutional to do this by rule if it not in the penal law? It seems to be a form of double jeopardy. I think New York's courts will strike this down. When did DMV become the place to take away a license if the courts allow you to have one?

April 7, 2013
12:11 p.m.
jerryrock says...

It is time to start going after those who serve alchoholic beverages or banning it outright.. Increasing penalties for drunk drivers will not stop them. Excessive consumption of alchohol is the third leading cause of death in the United States, much higher than tobacco yet we spend more time and money legislating the advertising and sale of tobacco products.

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