Arrested? What Now?

Extreme Hardship

New York criminal defense lawyer Don Murray, discusses the extreme hardship argument that can be made in some Driving While Intoxicated Cases to avoid the suspension pending prosecution for DWI that is often imposed immediately in New York.

If you have any additional questions about this article or about driving while intoxicated in Westchester or Putnam Counties in New York State, feel free to call Shalley and Murray at 914-276-2585.

In a true emergency, such as a recent arrest, call 347-612-9830 to speak to a lawyer right away.

Extreme Hardship Licenses in New York When Driver's License is Suspended Pending Prosecution for Driving While Intoxicated

By Don Murray, New York Criminal Defense Lawyer. Founding partner in Shalley and Murray.

New York State permits Criminal Court judges to suspend the driving privileges of people merely accused of driving while intoxicated under a few different circumstances. The most common of these circumstances is when the blood alcohol reading from a test administered during the arrest process is over a certain limit (currently 0.08).

The relevant portions of the New York Vehicle and Traffic Law are reproduced at the bottom of this article.

If a Criminal Court intends to suspend a driver's license as a result of this rule, the driver can make the argument that the suspension of the license pending prosecution would be an "extreme hardship".

The concept of "extreme hardship" is specifically defined by the New York Vehicle and Traffic Law.

For the purposes of the New York Vehicle and Traffic Law "extreme hardship" is defined as follows:

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

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.

The statute requires that the determination with respect to the suspension be made at the conclusion of arraignment and that the arraignment can be delayed no more than three days for the purpose of permitting a defendant to gather evidence and obtain counsel to conduct the extreme hardship hearing.

Although the statute does not specifically list the specific factors a judge must consider when considering extreme hardship applications, one local court in New York wrote an extensive opinion in which perhaps the most significant are discussed.

In the case, the Court listed the following factors as being the most significant to consider when evaluating a hardship application:

The full text of this hardship application opinion is available in PDF format by clicking here.

1. The presence or absence of licensed persons present in the licensee's household;

2. The ability of other licensed household members to provide transportation for the licensee;

3. The occupation and health condition of the licensee;

4. The proximity of the licensee's place of employment, health care provider or school to his or her household;

5. The presence or absence of any public transportation or taxi service to or from the licensee's household to the place of employment, health care provider or school;

6. A consideration of the licensee's ability to afford public transportation or taxi service as an alternative means of transportation;

7. The presence or absence of co-workers, friends or family members who may assist in the licensee's transportation; and,

8. Any other factor that the court deems appropriate to the determination.

If one of the above factors applies to you, then you may have a good argument that you ought to be granted an extreme hardship license pending prosecution.

Of course any individual situation will have to be evaluated in the context of the entire set of circumstances by a criminal defense lawyer, but the above list should give you some idea of the sorts of things a court is likely going to be looking for.

If you are successful in obtaining a hardship privilege, you must realize that the license is only valid for the purposes for which you were able to obtain the hardship privilege. In other words, if you are able to demonstrate the hardship for getting to and from work, that will be the extent to which the privilege will extend. The hardship privilege does not restore your full driving privileges.

Even if you are unable to qualify for an extreme hardship license pending prosecution, the law provides that you may be eligible, through the New York Department of Motor Vehicles, for a conditional license 30 days after your license is suspended pending prosecution.

If you have been given an adjournment for the purpose of permitting you to make an extreme hardship argument, you need to consult with an attorney about making this argument for you as well as defending the criminal case itself.

Relevant Excerpts from New York Vehicle and Traffic Law Section 1192.3 About Suspension Pending Prosecution and Extreme Hardship

return to top

Suspension pending prosecution; excessive blood alcohol content.

...a court shall suspend a driver's license, pending prosecution, of any person charged with a violation of subdivision two or three of section eleven hundred ninety-two of this article who, at the time of arrest, is alleged to have had .08 of one percent or more by weight of alcohol in such driver's blood as shown by chemical analysis of blood, breath, urine or saliva, made pursuant to subdivision two or three of section eleven hundred ninety-four of this article...

b. The suspension occurring under clause a of this subparagraph shall occur no later than at the conclusion of all proceedings required for the arraignment ...the next regularly scheduled session of the court after the arrest or at the conclusion of all proceedings required for the arraignment; provided, however, that if the results of any test administered pursuant to section eleven hundred ninety-four of this article are not available within such time period, the complainant police officer or other public servant shall transmit such results to the court at the time they become available, and the court shall, as soon as practicable following the receipt of such results and in compliance with the requirements of this subparagraph, suspend such license

In order for the court to impose such suspension it must find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists reasonable cause to believe either that (a) the holder operated a motor vehicle while such holder had .08 of one percent or more by weight of alcohol in his or her blood as was shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article or (b) the person was the holder of a class DJ or MJ learner's permit or a class DJ or MJ driver's license and operated a motor vehicle while such holder was in violation of subdivision one, two and/or three of section eleven hundred ninety-two of this article. At the time of such license suspension the holder shall be entitled to an opportunity to make a statement regarding these two issues and to present evidence tending to rebut the court's findings.

c. Nothing contained in this subparagraph shall be construed to prohibit or limit a court from imposing any other suspension pending prosecution required or permitted by law.

d. Notwithstanding any contrary provision of this chapter, if any suspension occurring under this subparagraph has been in effect for a period of thirty days, the holder may be issued a conditional license, in accordance with section eleven hundred ninety-six of this article, provided the holder of such license is otherwise eligible to receive such conditional license. The commissioner shall prescribe by regulation the procedures for the issuance of such conditional license.

e. 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. 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 or certificate.

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. 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. 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.