This is the story of one Kevin B. Acevedo, a repeat convicted drunk driver that the NY State has had enough with. Let this prove a cautionary tale as to why you should never, ever drink and drive in New York State. The story starts out routine enough. Back in 2003 Kevin was caught drinking and driving,
and plead guilty to a lesser driving while impaired. This little lesson through the criminal justice system was not enough of a wake up call or lesson learned, because in 2006 and 2008 Kevin was again caught DWI and both times confessed to the charge and plead guilty to the crime of DWI.
Upon his last conviction Kevin’s license was revoked for at least one year. Why he did not make an application in 2009 to restore his license we don’t know. What we do know is that he waited until late 2011 to make an application to restore driving privileges. By that time new regulations had been proposed to severely limit persons in Kevin’s constituent class of having their license restored. In 2012 the NYS Department of Motor Vehicles enacted these proposed regulations and, the government being the government, did not review Kevin’s application for restoration until AFTER the new regulations were enacted.
These new regulations severely limit the right of a recidivist DWI / DUI offender to re-obtain driving privileges. Without going into minutiae detail, if you have more than 2 but less then 5 driving while intoxicated or drugged / impaired convictions or incidents (which includes chemical test refusal) in your lifetime, then you may or may not be eligible for re-licensing depending on the totality of your driving record, and then if you are only after a 2 or 5 year old, again depending on certain variables. If you have 5 or more incidents you can kiss your driver’s license goodbye forever because you are permanently revoked. When this happens you can kiss goodbye ever getting a driver’s license in any state because when you are revoked in one state no other state will issue you a driver’s license. If you have 2 or less incidents the second incident requires a 1 year hold, but after that you are eligible for re-licensing.
These new regulations have caused over 20,000 motorists in NY to be permanently ineligible for driving privileges, and thousands more have 2 and 5 year waiting periods. Furthermore, every day this number is climbing. Many people have been fighting hard to restore their driving privileges through the court system, such as one Kevin B. Acevedo.
Kevin did not take this lying down. After the DMV denied his application he sought relief from the Albany Supreme Court and asked the court to order the DMV to restore his driving privileges. Kevin argued that (1) the regulations were unconstitutional, (2) violated his due process because they were applied expost facto (which is a fancy way for saying “after the fact”), and (3) that the new regulations supersede legislative penalties for repeat DUI offenders and are as such an abuse of discretion.
With the precision of a sharp shooter, the court eviscerated all of Kevin’s arguments, holding that (1) the regulations are totally constitutional, (2) that there is no legislative conflict, and (3) that there has been no due process violation. See, Matter of Acevedo v. NYS DMV, 2014 NY Slip Op 30422(U), Supreme Court, Albany County (Ceresia, J., 2014).
Kevin refused to take this lying down. He did not stop there. Rather, he appealed to a higher authority, the Appellate Division, 3rd Department. Unfortunatly for Kevin he did not fare any better in the Appellate Division. Without taking so much as a sidelong glance at it, the decision of Judge Ceresia was upheld in all regards. Probably right before lunch. See, Matter of Acevedo v. NYS DMV, 2015 NY Slip Op 06467 (App. Div. 3rd Dept. 2015).
There are 4 Appellate Divisions in New York State and, unless another Appellate Division hears a similar case and decides differently or this or a similar case gets to the NYS Court of Appeals, New York’s top court, this is the law of the land in NY State. As of the time of this blog post no other Appellate Division has ruled differently on the issue, and as a consequence the regulations are legal.
WHAT CAN YOU DO IF YOU, LIKE KEVIN, HAVE A LENGTHY OR PERMANENT REVOCATION
If you find yourself in Kevin’s position, one of two things have to change before you see your driver’s license again – the regulations or your driving history. It’s pretty obvious that the regulations are not going to change anytime soon if at all. However, changing your driving history is where we come in.
Our law office has been successful in remediating a driving history by vacating prior convictions, which has taken motorists from ineligible to eligible. We have also been able to amend a driving history to accurately reflect the conviction profile of clients which, because of the error made it appear as though they were ineligible when in fact they were eligible for re-licensing.
If you find yourself out of options regarding relicensing don’t take the route Kevin did and fight the regulations head on. It is costly with a low chance of success. Plus, there are thousands more like Kevin already embroiled in the fight and, in the highly unlikely event that they win and the regulations are struck down then you will be eligible for relicensing in any event.
So why waste your money? Rather, invest it into investigating as to whether there is something we can do for you which would be cost effective and put you within the regulatory scheme to reinstate your driving privileges.