Lately I’ve had a few clients who are dealing with the NY DMV 3 in 25 rule. If you’ve never heard of this rule, let me give you a quick run-down. If you are convicted of a DWI or DWAI offense for the first time, the suspension or revocation period is pretty well spelled out in statute. If it is a DWAI, you generally receive a 90 day suspension and if it is a DWI you generally get a 6 month revocation. Both of these convictions allow you to take the DMV’s impaired driver program and apply for a conditional license.

That being said, in 2012, the DMV enacted new regulations that allowed the DMV to look back over your driving history for the previous 25 years. What are they looking for? These: Convictions for DWI, DWAI, DWAI-Drugs, Zero Tolerance violations, Breath Test Refusals, or generally any violation of Vehicle and Traffic Law sections 1192 or 1194. For the sake of brevity, let’s just call these “Alcohol Convictions.”

Here’s where the new rules changed everything. If you receive a second alcohol conviction in the past 25 years, you will have to serve the entire revocation period before you can apply for any licensing privileges, even if you take the impaired driver program. Okay, that doesn’t sound too bad. Six months without a license? Let me now show you what I call the career ender.

Let’s say you received a DWAI in 1993. You were young, dumb, and 21 years old. I certainly was when I was 21. Then, in 2002, when you were out celebrating your birthday, you got stopped by the police and blew a .08, right on the nose. The prosecutor knows she will have a tough time with the case, so you get a reduction to DWAI. Now, it’s 2016 and you’re in your mid 40’s. A bit wiser and you don’t put up with this police-state crap. You get pulled over after having a glass of wine at dinner and the police officer stops you because you were going 55 in a 54. If you’ve read as many DWI supporting depositions as I have as both a prosecutor and a defense attorney, you know that sobriety tests are designed for failure. I’ve actually had officers in my office before attempting to show me how they conducted the sobriety tests and even they couldn’t perform them without failing. In any event, you hit 2 of the 8 clues on the walk and turn test and 2 clues on the one leg stand test. Never mind that you have a bulging disk… the officer doesn’t care. So, you tell him to pound sand and refuse the breath test. Even if you were found not guilty of the DWI or it was dismissed, the DMV categorized you refusal as a third event in 25 years. So what does this mean?

3 in 25

3 or 4 alcohol events in 25 years means your license application following any revocation period will be denied for at least 5 years. No conditional license until 5 years has passed. At that point, you will be required to install an ignition interlock for likely another 5 years. At a cost of $150 for installation and about $100 per month for monitoring by the State, you just gave the State another $6000. (For a further discussion on NY’s use of the DMV to balance the State budget, see my other blog post at:  http://www.albanylawgroup.com/the-upstate-new-york-empire-of-traffic-tickets/ )

So, you are in the prime of your career. You are 44 years old and have been in trouble twice in the past 2 decades. Only, you can’t drive. You can’t make it to work, because we live in upstate New York and the NYC MTA has yet to grace us with the presence of a subway or a decent bus system. Now you don’t work. So you made 2 bad decisions and fought the man once in 25 years, and you now have to be introduced to the welfare rolls.

Don’t get me wrong, I do not support drinking and driving. In fact, I support complete abstinence when operating a motor vehicle. Alcohol kills people when they drink and drive. However, I do not necessarily agree with draconian penalties that were not passed as laws, but rather were rules directed by the Department of Motor Vehicles at the behest of our governor. What is brutal is that I have clients who cannot even get to alcohol treatment because the sheer power that the DMV (read: Governor) exerts over the driving privileges in New York.

So what happens if you have 5 alcohol related events in 25 year? That’s a permanent denial of your license application in New York. Honestly, I don’t know how I feel about this one. On one end, part of me believes that if you made an alcohol related mistake on average once every five years, then you should be comfortable not driving. The other part of me says, if your government wants this rule, then let them pass it through the legislature and vote on it. This is a democracy, right? No, New York has not been a democracy in a long time.

To close, I want to share with you what I consider the worst case scenario when it comes to the 3 in 25 rule. I know a guy who took a DWAI when he was 16 years old and it was 14 years before these regulations were ever dreamed up by our State’s commander-in-chief. Had he pleaded guilty to DWI as he was charged and had the case sealed as a youthful offender adjudication, by law it would not have counted against his 3 in 25 because it would have been an adjudication and not a conviction. Instead, his attorney probably did the right thing since they didn’t know what was coming down the pike in a decade and a half and got the charge reduced to a violation. In any event, he had some issues with alcohol in his 30’s and ended up with 2 DWI convictions within 4 years. Had those 2 DWI convictions stood on their own, he would have his license right now. He’s done everything the State and his doctor has asked of him. He went to rehab, quit drinking, got healthy. He’s got a child, bills, and every other adult responsibility. What he doesn’t have is a job. Doesn’t matter that he’s been clean for 4 years, no employer will keep him on because he doesn’t have reliable transportation. In New York City, where all of these “regulations” are thought up by the governor’s dream team, you can get by without a license. Upstate, the long forgotten appendage of New York State, you may as well use your last few dollars to take a taxi to the welfare office.

As always, my blogs are for discussion purposes only and are not intended to be legal advice for any specific person. However, if you find yourself charged with a DWI, please realize that the consequences may reach much further than the edges of the courtroom. If you are charged, please feel welcome to call the Kokosa Law Firm, P.C. at (518) 907-4694. If it is after hours or the weekend, we try to answer calls24 hours a day. You are always welcome to call me or text me at (518) 466-3062 as well.