Queens County Bar Association
Martindale Hubbell - Distinguished 2023

What Happens to the Drivers’ License Following a DWI Arrest?

Interviewer: When someone is arrested, what happens to their drivers’ license? Is it immediately taken?

Judges Can Suspend The Licenses At The Arraignment While A DWI Case Is Pending

Martin Kane: In the typical case, if the person has taken the Breathalyzer test, the law says that the judge shall suspend the defendant’s license during the pendency of the criminal case if the Breathalyzer is .08 or higher. It’s also important to know that, assuming there is a suspension or a revocation that happens at the end of the case, the driver gets no credit for this interim suspension.

The Time A License Is Suspended While A DWI Case Is Pending Will Not Count Toward An Additional Suspension Imposed At The Resolution Of The Case

Let’s say a defendant is convicted or pleads guilty to either DWI or something less. The court will then impose a revocation or suspension as required by law; that revocation or suspension starts when sentence is imposed. The driver is not given any credit for the time his license was suspended while the case was being litigated.

That’s tacked on in addition to whatever the court does as part of the sentence. The longer the case goes on, it becomes very possible that you can have very long combination of interim suspension and post-sentence revocation or suspension. It’s something that one has to look at very carefully.

There is one other aspect with regard to that. When somebody has their license suspended by the court — and this is done automatically right when they’re first arraigned — their license is suspended.

Motor Vehicles Bureau Can Issue A Conditional 30-Day License After Arraignment

The Motor Vehicles Bureau, however, can and usually does give the defendant a conditional license 30 days after he is arraigned. Most defendants can expect that they will hear from the Motor Vehicles Bureau after 30 days and be given the opportunity to have at least a conditional license, meaning they can go to and from work or school. That will go on during the pendency of the case.

Longer-Term Hardship License Issuances Are Rarely Granted

Interviewer: Are people able to get longer-term hardship or occupational licenses?

Martin Kane: The court can grant a hardship license, but they are rare. The reason is that the law allows a judge to issue a hardship license at the arraignment or within three days after the arraignment.

It does not happen very often for two reasons. Number one, most judges are very loath to issue them in the typical situation. The second reason is because there are very particular requirements that a lot of lawyers aren’t even aware of. In order to get a hardship license, you have to make the application at arraignment or within three days following the arraignment.

Documentary Proof Must Be Submitted For A Hardship License Within Three Days Of The Arraignment

Usually, when we are retained, more than that amount of time has gone by providing we were not there for the arraignment. The second thing is that the judge can only issue a hardship license if there is documentary proof that it is required. In other words, it’s not enough to say, “I definitely have to have this in order to get to and from work.”

You have to be able to show documentation of this work and why it’s important. Or, “My mother requires chemotherapy every three days. I’m the only one who can drive her to the hospital.” It’s not enough just to say that to the judge. By law you have to have documentary proof of this, and for this reason it’s rare that these hardship licenses are given out.

The Criteria For Documentary Proof Is Very Specific

Interviewer: What’s an example of a documentary proof?

Martin Kane: If, for instance, you had the example I just used. You mother has to go to the hospital every three days. You would have to have proof of this situation that she has the condition, that she has to be driven to this particular place, and that combined with the fact somebody could say that this is the only person who could do it.

In that unusual circumstance, the court might grant a hardship license during the pendency of the case. Again, it’s not done very often. There are very few hardship licenses that I see given out. The judges do not like to do it.

Find out more by contacting The Law Office of Martin D. Kane at (718) 793-5700.

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