Many people who are arrested for and accused of DWI in New York need to
be able to use their car to get to work on a daily basis. Unfortunately
for those people, New York law generally requires the immediate suspension
of an arrestee’s driver’s license which lasts until the end
of the prosecution, at which time the suspension either goes away (in
the case of an acquittal or dismissal) or becomes set for a fixed period of time.
A Hardship Privilege is Known in New York Law
While it may be possible to obtain a conditional license pursuant to a
negotiated plea or on account of other circumstances in a DWI case, this
post deals with the hardship license, or, to be more precise, the “hardship
privilege” as described in Vehicle and Traffic Law (“VTL”)
1193(2)(e)(7)(e). That provision states, in relevant part, as follows:
If the court finds that the suspension imposed pursuant to this subparagraph
will result in extreme hardship, the court must issue such suspension,
but may grant a hardship privilege, which shall be issued on a form prescribed
by the commissioner.
Thus, provided that a defendant can show such “extreme hardship,”
he or she may be able to operate a vehicle notwithstanding any pre-conviction
“Extreme Hardship” Defined
Extreme hardship is defined later in the same section:
For the purposes of this clause,”extreme hardship” shall mean
the inability to obtain alternative means of travel to or from the licensee’s
employment, or to or from necessary medical treatment for the licensee
or a member of the licensee’s household, or if the licensee is a
matriculating student enrolled in an accredited school, college or university
travel to or from such licensee’s school, college or university
if such travel is necessary for the completion of the educational degree
Thus, there are exactly three circumstances under which a person may apply
for a hardship license, loosely categorized here as (i) work, (ii) school,
or (iii) medical. Absent any of those reasons, the hardship license simply
will not apply.
Burden to Show Hardship on Defendant
The mere presence of one of those circumstances in a case does not necessarily
mean that a hardship license will be granted. It will usually be the job
of the New York DWI defense attorney to demonstrate his client’s
entitlement to the license. As set forth in the statute:
The burden of proving extreme hardship shall be on the licensee who may
present material and relevant evidence. A finding of extreme hardship
may not be based solely upon the testimony of the licensee.
Thus, any claimant should be prepared to assemble paperwork and other evidence,
including live witness testimony, to support their claim that driving
is necessary to facilitate either work, school, or medical visits.
Timing of Hearing
The hearing must take place simultaneous to or within three days of the
criminal court arraignment. Thus, time is of the essence when it comes
to presenting evidence of hardship that will allow you to keep your license.
Thus, if you are arrested, it is important to immediately contact an experienced New York DWI attorney to ensure that your driving rights are fought for as soon as possible.
As noted in the statute:
In no event shall arraignment be adjourned or otherwise delayed more than
three business days solely for the purpose of allowing the licensee to
present evidence of extreme hardship. The court shall set forth upon the
record, or otherwise set forth in writing, the factual basis for such finding.
Scope of Hardship License
Finally, the privilege is very limited. It will only allow a driver to
drive to the extent that he or she is required to do so by one of the
three statutory reasons. Courts have interpreted this provision very strictly,
and a driver who drives outside the scope of a hardship license may face
sanctions in his pending case, and even additional VTL charges:
The hardship privilege shall permit the operation of a vehicle only for
travel to or from the licensee’s employment, or to or from necessary
medical treatment for the licensee or a member of the licensee’s
household, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such licensee’s
school, college or university if such travel is necessary for the completion
of the educational degree or certificate. A hardship privilege shall not
be valid for the operation of a commercial motor vehicle.
driving under the influence,
Manhattan Criminal Court,
operating a motor vehicle while under the influence of alcohol or drugs,
Queens Criminal Court,
Vehicle and Traffic Law