N.Y. Comp. Codes R. & Regs. Tit. 15 § 136.5 - Special rules for applicants with multiple alcohol - or drug-related driving convictions or incidents and for applicants with an alcohol-related conviction related to a fatal accident
(a)
For the purposes of this section:
(1)
"Alcohol- or drug-related driving conviction or incident" means any of the
following, not arising out of the same incident:
(i) a conviction or a youthful offender
adjudication of a violation of section
1192
of the Vehicle and Traffic Law or an out-of-state conviction for operating a
motor vehicle while under the influence of alcohol or drugs;
(ii) a finding of a violation of section
1192-a of the Vehicle and Traffic Law or
a finding of a refusal to submit to a chemical test under section
1194-a of the Vehicle and Traffic Law;
provided, however, that no such findings shall be considered after the
expiration of the retention period contained in paragraph (k) of subdivision 1
of section
201 of
the Vehicle and Traffic Law;
(iii)
a conviction of an offense under the Penal Law for which a violation of section
1192
of the Vehicle and Traffic Law is an essential element; or
(iv) a finding of refusal to submit to a
chemical test under section
1194
of the Vehicle and Traffic Law, where such finding does not arise out of an
incident that resulted in a conviction of a violation of section
1192
of the Vehicle and Traffic Law.
(2) Serious driving offense means:
(i) a fatal accident;
(ii) a driving-related Penal Law
conviction;
(iii) conviction of two
or more violations for which five or more points are assessed on a violator's
driving record pursuant to section
131.3 of this Title; or
(iv) 20 or more points from any violations
other than as defined in paragraph (1) of this subdivision.
(3) 25 year look back period means
the period commencing upon the date that is 25 years before the date of the
revocable offense and ending on and including the date of the revocable
offense.
(4) "Revocable offense"
means the violation, incident or accident that results in the revocation of the
person's drivers license and which is the basis of the application for
relicensing. Upon reviewing an application for relicensing, the Commissioner
shall review the applicant's entire driving record and evaluate any offense
committed between the date of the revocable offense and the date the
application is reviewed by the Commissioner as if it had been committed
immediately prior to the date of the revocable offense. For purposes of this
section, "date of the revocable offense" means the date of the earliest
revocable offense that resulted in a license revocation for which the
revocation has not been terminated by the Commissioner's subsequent approval of
an application for relicensing.
(b) Upon receipt of a person's application
for relicensing, the commissioner shall conduct a lifetime review of such
person's driving record. If the record review shows that:
(1) the person has four or more alcohol- or
drug-related driving convictions or incidents in any combination within his or
her lifetime, then the Commissioner shall deny the application.
(2) the person has three alcohol- or
drug-related driving convictions or incidents in any combination within the 25
year look back period and, in addition, has one or more serious driving
offenses within the 25 year look back period, then the Commissioner shall deny
the application.
(3)
(i) the person has three alcohol- or
drug-related driving convictions or incidents in any combination within the 25
year look back period but no serious driving offenses within the 25 year look
back period; and
(ii) the person is
currently revoked for an alcohol- or drug-related driving conviction or
incident, then the Commissioner shall deny the application for at least five
years after which time the person may submit an application for relicensing.
Such waiting period shall be in addition to the revocation period imposed
pursuant to the Vehicle and Traffic Law. After such waiting period, the
Commissioner may in his or her discretion approve the application, provided
that upon such approval, the Commissioner shall impose the A2 restriction on
such person's license for a period of five years and shall require the
installation of an ignition interlock device in any motor vehicle owned or
operated by such person for such five-year period. Such waiting period shall be
extended for an additional five years if the Commissioner finds that the person
has any incidents of driving during the waiting period, as indicated by
accidents, convictions or pending tickets or adjudications. If such license
with an A2 restriction is later revoked for a subsequent alcohol- or
drug-related driving conviction or incident or for a conviction which arises
out of a fatal accident, such person shall thereafter be ineligible for any
kind of license to operate a motor vehicle.
(4)
(i) the
person has three alcohol- or drug-related driving convictions or incidents in
any combination within the 25 year look back period but no serious driving
offenses within the 25 year look back period; and
(ii) the person is not currently revoked as
the result of an alcohol- or drug-related driving conviction or incident, then
the Commissioner shall deny the application for at least two years, after which
time the person may submit an application for relicensing. Such waiting period
shall be in addition to the revocation period imposed pursuant to the Vehicle
and Traffic Law.
After such waiting period, the Commissioner may in his or her discretion approve the application, provided that upon such approval, the Commissioner shall impose an A2 restriction, with no ignition interlock requirement, for a period of two years. Such waiting period shall be extended for an additional two years if the Commissioner finds that the person has any incidents of driving during the waiting period, as indicated by accidents, convictions or pending tickets or adjudications. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident or for a conviction which arises out of a fatal accident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle;
(5) the person has two alcohol- or
drug-related driving convictions or incidents in any combination within the 25
year look back period, then the commissioner may in his or her discretion
approve the application after the minimum statutory revocation period is
served;
(6) the person has been
twice convicted of a violation of subdivision three, four or four-a of section
1192
of the Vehicle and traffic law or of driving while intoxicated or of driving
while ability is impaired by the use of a drug or of driving while ability is
impaired by the combined influence of drugs or of alcohol and any drug or drugs
where physical injury, as defined in section
10.00 of the Penal
law, has resulted from such offense in each instance, then the commissioner
shall deny the application;
(7) the
person is otherwise eligible for relicensing under this section, but is
applying for relicensing due to revocation arising out of an alcohol-related
conviction involving a fatal accident, the Commissioner may approve the
application after the minimum revocation period is served, provided that upon
such approval, the Commissioner shall impose the A2 restriction on such
person's license for a period of three years and shall require the installation
of an ignition interlock device in any motor vehicle owned or operated by such
person for such period. For the purpose of this paragraph, "alcohol-related
conviction" shall mean (i) a conviction of a violation of section
1192
of the Vehicle and Traffic Law, or (ii) a conviction of an offense under the
Penal Law for which a violation of section
1192
of the Vehicle and Traffic Law is an essential element.
(c) The grounds for any denial shall be set
forth in writing and a copy shall be made available to the person making the
application for relicensing.
(d)
While it is the Commissioner's general policy to act on applications in
accordance with this section, the Commissioner shall not be foreclosed from
consideration of unusual, extenuating and compelling circumstances that may be
presented for review and which may form a valid basis to deviate from the
general policy, as set forth above, in the exercise of discretionary authority
granted under sections
510 and
1193
of the Vehicle and Traffic Law. If an application is approved based upon the
exercise of such discretionary authority, the reasons for approval shall be set
forth in writing and recorded. If an approval is granted based upon unusual,
extenuating and compelling circumstances, the applicant may be issued a license
or permit with a problem driver restriction, as set forth in section
3.2(c)(4) of this
Title, and may be required to install an ignition interlock device in any motor
vehicle owned or operated by such person for a period of five years. The
provisions of this subdivision shall not apply to denials under paragraph (6)
of subdivision (b) of this section.
(e) If there are two alcohol or drugrelated
driving convictions or incidents on an applicant's driving record, the
consideration of an application for relicensing shall be held in abeyance if
the applicant has at least one ticket pending for alcohol or drugrelated
driving offenses where the pending ticket or tickets, if disposed of as a
conviction of the original charge, would result in the denial of the
application. In addition, if, after an application for relicensing is approved,
the Commissioner receives information that indicates that such application
should have been denied or that the applicant operated a motor vehicle prior to
approval or after approval of such application but prior to obtaining a valid
permit or license, the Commissioner shall rescind such approval and the license
or privilege granted shall be revoked.
Notes
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