CDL's Conditional and Hardship Licenses Some Surprising Twists
February 13, 2008
Assume the following. You get a frantic call. It seems the distressed motorist has just received notification that his license is going to be suspended as a result of an out of state conviction for an alcohol related operating offense. To make matters worse, our caller is a commercial truck driver who must be in possession of a valid CDL operator's license to work, eat and feed the family. According to the caller, the notice sets forth that he is eligible to receive a conditional license, but that any license granted in this circumstance is not eligible for commercial privileges. Is there any hope that the caller can continue to work? Surprisingly there is.
This situation recently arose in our office and, as a result of the fact that the number of adjudications under the Interstate Compact is continuing to rise, I thought it wise to review the favorable resolution. First, let's examine the basics. As a general matter, the Interstate Compact is found in Vehicle and Traffic Law ' 516. It provides certain obligations in the event of a conviction. As described, the Compact works something like this. The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report identifies the person convicted and describes the violation including the section of the statute, code or ordinance violated. It further identifies the court in which action was taken, indicates whether a plea of guilty or not guilty was entered or if a conviction was a result of the forfeiture of bail, bond or other security. Likewise, it includes any special findings made in connection therewith.
Thereafter, the licensing authority in the state issuing the license is supposed to give the same effect to the conduct reported for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle. Enumerated in the Compact, such effect shall be given in the event of convictions for Manslaughter or Negligent Homicide Resulting from the Operation of a Motor Vehicle; Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor or a Narcotic Drug, or Under the Influence of any Other Drug to a degree which renders the driver incapable of safely driving a motor vehicle; any felony in the commission of which a motor vehicle is used; and Failure to Stop and Render Aid in the Event of a Motor Vehicle Accident Resulting in the Death or Personal Injury of Another.
As of this writing, the following states are members of the Compact.
The references following the state code are to the legislation in each state which enables implementation of the Compact:
Ala.--Code 1975, '' 32-6-30 to 32-6-36.
Ariz.--A.R.S. '' 28-1601 to 28-1605.
Ark.--A.C.A. '' 27-17-101 to 27-17-106.
Cal.--West's Ann.Cal.Vehicle Code, ' 15000 et seq.
Colo.--West's C.R.S.A. 24-60-1101 to 24-60-1107.
Conn.--C.G.S.A. ' 14-111c.
Del.--21 Del.C. ' 8101.
D.C.--D.C.Code 1981, '' 40-1501, 40-1502.
Fla.--West's F.S.A. '' 322.43 to 322.48.
Hawaii--HRS '' 286C-1 to 286C-2.
Idaho--I.C. '' 49-2001 to 49-2003.
Ill.--S.H.A. 625 ILCS 5/6-700 to 5/6-708.
Ind.--West's A.I.C. 9-28-1-1 to 9-28-1-6.
Iowa--I.C.A. '' 321C.1, 321C.2.
Kan.--K.S.A. 8-1212 to 8-1218.
La.--LSA-R.S. 32:1420 to 32:1425.
Me.--29-A M.R.S.A. '' 1451 to 1475.
Md.--Code, Transportation, '' 16-701 to 16-708.
Minn.--M.S.A. '' 171.50 to 171.56.
Miss.--Code 1972, '' 63-1-101 to 63-1-113.
Mo.--V.A.M.S. '' 302.600, 302.605.
Mont.--MCA 61-5-401 to 61-5-406.
Neb.--R.R.S.1943, Vol. 2A App. p. 830.
Nev.--N.R.S. 483.640 to 483.690.
N.J.--N.J.S.A. 39:5D-1 to 39:5D-14.
N.M.--NMSA 1978, 66-5-49 to 66-5-51.
N.Y.--McKinney's Vehicle & Traffic Law, ' 516.
N.C.--G.S. '' 20-4.21 to 20-4.30.
Okl.--47 Okl.St.Ann. '' 781 to 788.
Pa.--75 Pa.C.S.A. '' 1581 to 1585.
S.C.--Code 1976, '' 56-1-610 to 56-1-690.
Tex.--V.T.C.A., Transportation Code ''523.001 to 523.011.
Utah--U.C.A.1953, 53-3-601 to 53-3-607.
Vehicle and Traffic Law.--23 V.S.A. '' 3901 to 3910.
Va.--Code 1950, '' 46.2-483 to 46.2-488.
Wash.--West's RCWA 46.21.010 to 46.21.040.
W.Va.--Code, 17B-1A-1, 17B-1A-2.
Wyo.--W.S.1977, '' 31-7-201, 31-7-202.
When a New York motorist is convicted of a qualifying alcohol related operating offense in a member state, that state will, through the offices of the Compact Administrator, notify what is denominated as the home state, which for our discussion is New York. It is important to note that what is reported is not really the suspension or revocation, but the conviction. Under the Compact, it is the duty of the member state to report:
[the] conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or the conviction was a result of the forfeiture of bail, bond or other security; and shall include any special findings made in connection therewith.
Thereafter, it is incumbent upon the home state to give the same effect to the conduct reported, pursuant to Article III of this Compact, as it would if such conduct had occurred in the home state.
Thus, if a New York motorist is convicted in West Virginia of his or her first alcohol related operating offense and has his or her privileges to operate in that state revoked for six months, the conviction will be reported to New York. Subsequently, the New York State Department of Motor Vehicles will send the motorist a notice of suspension/revocation advising the motorist that his or her privilege to operate in this state is revoked for ninety days. Note that I say ninety days, as opposed to the six months imposed by the State of West Virginia. Although the Compact mandates that the out-of-state offense be treated as though it occurred in the home state, it seems that in determining the effect of the out-of-state conviction upon the license, the New York State Department of Motor Vehicles relies upon Vehicle and Traffic Law ' 1193(2)(b)(8). This section, contained under revocations provides for a ninety day revocation where the holder is convicted of an offense consisting of operating a motor vehicle under the influence of intoxicating liquor or drugs where the conviction was had outside this state. Thematically, this seems to be consistent with Vehicle and Traffic Law ' 1192(8) which provides that:
A prior out‑of‑state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety‑three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a violation of any of the provisions of this section. This subdivision shall only apply to convictions occurring on or after November twenty‑ninth, nineteen hundred eighty‑five.
Therefore, in our situation, the motorist is revoked for a ninety day period.
Now for the big question. Will he or she be entitled to receive conditional privileges notwithstanding that the conviction occurred out of state? In a word, yes. The extent to which such a license is afforded is considerably broader than one might otherwise assume. One of the unique features of 15 NYCRR 134, the regulation governing the Drinking Driver Rehabilitation Program, is the manner in which it permits New York motorists, who are convicted of an alcohol or drug related operating offense, in a sister state, to nonetheless receive a conditional license. 15 NYCRR 134.2 sets out that [a]ny person who is convicted of a violation of any subdivision of section 1192 of the Vehicle and Traffic Law, or of an alcohol or drug‑related traffic offense in another state, shall be eligible for enrollment in an alcohol and drug rehabilitation program. To facilitate such attendance, 15 NYCRR 134.13 provides:
All of the provisions of this Part shall be applicable to the holder of a New York State driver's license who has been convicted of an alcohol‑ or drug‑related traffic offense in another state except that those provisions which relate to the actions of the convicting judge, the effect of satisfactory completion of a rehabilitation program upon a sentence of fine or imprisonment and notification to the court by the department shall not be applicable. In addition, if the driving privileges of a New York licensee convicted in another state are suspended or revoked by such other state, the conditional license issued by the commissioner will not permit the holder to operate in such other state during the term of suspension or revocation of his driving privileges within that state, unless specifically permitted by that state.
According to the regulation, this means that if a New York motorist is convicted in another state and sentenced to attend a drinking driver rehabilitation program, he or she will be permitted to attend the New York drinking driver rehabilitation program and, if otherwise eligible, will also receive a conditional license. This license will not permit operation within the sister state where the conviction is entered unless the law and/or regulations of that state explicitly provide.
While in theory, this will require the motorist to submit sufficient proof to the NYS Department of Motor Vehicles that he or she has been required or permitted to attend such program, in practice, this is not what actually happens. In most instances, the out-of-state convictee will simply remain silent pending receipt of the aforementioned notice from the New York State Department of Motor Vehicles. Although the regulations seem to render this option available only to those who have been convicted in a state which offers reciprocal features, our experience is that upon a report from the Compact Administrator New York will automatically offer conditional privileges to a motorist who would be otherwise eligible.
Now, what about commercial privileges? Will these be available? Surprisingly, yes. Why do I say surprisingly? When the motorist originally had a commercial license and subsequently receives a Drunk Driver Program (DDP) conditional license, Vehicle and Traffic Law ' 1196(7)(g) seems to dictate that the commercial privileges previously enjoyed remain revoked. Notwithstanding this bar, DMV will issue a conditional license which includes continuation of the operator's commercial privileges provided the sentencing court issues a Certificate of Relief from Civil Disabilities which specifically removes this statutory bar. When a New York motorist is convicted out-of state of an alcohol related operating offense, different problems arise. Such person, if otherwise eligible, when notified will be advised that he or she may attend the Drinking Driver Program and receive a conditional license. The letter which is forwarded to the motorist, however, will set forth that the conditional license will be in a non-commercial class only.
Is this statement which is contained in the Order correct? We do not believe that it is. As pointed out above, removal of commercial driving privileges occurs as a result of Vehicle & Traffic Law '1196(7)(g) which revokes the commercial privileges of a motorist who is convicted of any subdivision of section eleven hundred ninety-two. The out-of-state motorist, however, is not convicted of a violation of any subdivision of section eleven hundred ninety-two. Accordingly, the limitation set forth in the Order should not apply. Further, limiting the effect of Vehicle & Traffic Law '1196(7)(g) to the in state situation appears to be quite reasonable, given the fact that the Certificate of Relief from Civil Disabilities that would ordinarily be obtainable by a New York motorist, is unavailable when the conviction occurs outside the State of New York.
Does DMV accept this position? In a word, yes. In a matter we recently handled for a New York motorist who was convicted in a compact state, we pointed out the foregoing anomaly to counsel's office. We were thereafter advised that we were correct and that the motorist should be issued commercial privileges notwithstanding language contained in the Order.
Throughout this discussion, we have been speaking of a New York motorist who is dealing with his or her first conviction. Will a prior offense in New York or elsewhere affect the outcome? First, for the easy part. If the motorist has been convicted of a ' 1192 offense in the preceding five years or has attended the Drinking Driver Program within the same period of time, 15 NYCRR 134.3(a) dictates that he or she will be ineligible. The tricky part is the length of the revocation. While at first blush it would seem to be one year, Vehicle and Traffic Law ' 1193(2)(b)(3), denominated prior offense pertains only to a Vehicle and Traffic Law ' 1192 conviction. Thus, it would seem that although our hapless motorist would be ineligible for hardship privileges, revocation would still be governed by Vehicle and Traffic Law ' 1193(2)(b)(8) which contains no provision for enhancement.
Before leaving the topic of conditional licenses, will a motorist who has commercial privleges be suspended pending prosecution and receives a pre-conviction conditional license retain his or her commercial privileges? Again, the answer to that one is yes. Recall that the dispositive section, Vehicle & Traffic Law '1196(7)(g), withdraws commercial privileges following a conviction for a Vehicle and Traffic Law ' 1192 offense. In this situation, there has been no conviction and accordingly, the conditional license that is issued will continue to carry the motorist's commercial privileges.
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