Ny Chem test refusal Conditional license possible?

[vwskier]

New York

Hi, I have a slightly complicated situation. A few weeks ago, I was in an accident. I had consumed 3-5 drinks in about 3-4 hours. Because it was an accident, I believed that my best course of action was to refuse any tests(This turned out to be a mistake, the other driver, and me, were not injured, but he did go to the hospital).

Anyway, when I spoke with an attorney the next day (And paid him more than $2000 up front), he informed me that the best course of action was the following:

1. Agree to plead guilty to DWAI (Which I did).
2.Waive the NYSDMV administrative hearing (regarding a 1 year revocation of my driver's license) and apply for a conditional license.

My DMV administrative hearing had been scheduled for a particular day in June; I called my attorney the day before that hearing, and asked him if we needed to attend, postpone, or take some other action. He told me that the date I had been given for the hearing was wrong, and that there were no administrative hearings being held that day. I believed him, and continued to follow his advice.

My lawyer had me sign a plea agreement, and advised me to go to the DMV to apply for classes, and a conditional license. I went to the DMV to apply, and was informed by the DMV clerk that my license had been revoked because I had missed the administrative hearing. In further calls to the DMV, I found that this was true, but was also told that if I could prove that I had been misinformed, I could apply to have the case re-opened.

My lawyer has told me that this is just a snafu in DMV paperwork which "Happens all the time" and that he would straighten it out.

My questions are as follows:

Is it even possible to obtain a conditional license after a refusal, and if so, is it even REMOTELY possible to get a conditional license in my current situation? I assume that getting the revocation reversed will not be an easy task.

Should I hire a new attorney to complete this case?

If I need to change attorneys, what would be the most reasonable way to get some money back from my lawyer? (I feel quite mistreated, because I entered a guilty plea, which went through (conviction) THEN, on the advice of my lawyer, I missed the administrative hearing, and, as far as I can tell right now, will likely have no license for a year, and not have any chance to avoid conviction because it's already been done.

Any ideas or advice will be greatly appreciated.

Thanks

[xylene]

To my best understanding of NYS law and DMV policy, there is virtually no hope of a conditional license.

That is because of the chem test refusal, which is a DMV civil penalty.

On top of that the fact you missed the hearing bodes very poorly.

The DWAI is a seperate criminal matter.

[RatPackLar]

In MI, you refuse, it is automatic 1 year suspension of the DL, and that happens way before you ever get to court to deal with the charges at hand.
Remember courts do the criminal side, and the drivers license is handling on the administrative side by the DMV and they can do whatever they want.

In Michigan after you serve out your DL penalties, and can then apply for a hearing to restore, they give you a date to show up, you miss it, you are automatically banned for one year, from even attempting to get another hearing date to request restoration.

That applies to revocations, with those, you do need a hearing to get the DL restored. On suspensions, you typically have to serve it, pay it, and you get it back.

There is a big difference between REVOCATION AND SUSPENSION.

NY Laws may be different but only you can reserch that and know for sure.

Typically the DMV pounds hard on DUI, and refusals, and missed hearing dates.

Can you actually prove you were mis-informed?

If your lawyer says he will straighten it out, all he can do is try.

I would not count on any conditional license.

He may be a able to justify the missed admin hearing and get you a new one, but you still gotta go into that hearing and convince them you deserve a conditional licence. That will not be easy. They do not care about your job, your money, you whatever. those to them, are not valid reasons.

They think, well you should have thought of all that, before you DUI drove, and before you refused.

A new lawyer, well, maybe, but again, that person will be starting from scratch and will have to play catch up, and there are no guarantees. Plus catch up, will always cost more.

Research the NY DUI and DMV rules and regs, just so you have some knowledge of how the system works. You do that, and that will help you deal with the system and your lawyer.

I think you should plan on the year DL loss, it was automatic, as soon as you refused.

You are not getting any money back from your lawyer. You can sue him in small claims or civil court depending on the dollar amount you are seeking, but again that is gonna cost some money and are not going to win. Your lawyer can defend himself for free, knows the system and will, you on the other hand are gonna have to pay somebody to do it for you. Yes, and lawyers in Civil Actions do work on contingent fee, aka, they get paid a part, if they win, but again there has to be enough money in it for them to bother, sounds to me, like there is not.

You got DUI with an accident, causing harm, here in MI, in in most states, that is a FELONY. From a NY DUI Lawyer site.

DWI cases can be "aggravated" (with harsher punishment and penalties) where the BAC is .15 or more, where there is a traffic accident, refusal to take the chemical test, or any other attempt to evade police or flee the scene of a DWI accident.

MORE INFO FOR YOU

In New York will trigger two separate cases for those accused of driving while impaired. The first is the DWI case in criminal court; the second is the DMV case, where the New York DMV is empowered to suspend the driving privileges of those accused of DWI or DWAI (driving while abilities are impaired by alcohol).

If you got to plead out, which it sounds like you did, your Lawyer did help you on the criminal side.

The DMV is not going to give you a conditional DL period, why should they? You got DUI, you had an accident, and you refused the test.

You should be worried about getting sued by the other party involved in the accident. Unless that other party was DUI too?

That is probably gonna happen.

[racer72]

In MI, you refuse

In Michigan after you

NY Laws may be different

The OP could care less about Michigan. Yes, New York laws are different. Perhaps your best option would be to research the laws of the OP's state to give a factual answers or not post at all.

[RatPackLar]

I figure all I really can do, is toss out what I know, based on my own experiences, and I always say, check the laws of your state.

If you do not like what I post, I have the perfect solution, do not read them. See, now look how simple that can be for you?

There are no factual anwers anybody can give, or get, from the NET. For you to even suggest that, tells me, you do not know what you are talking about. Each case has its own merits, and must stand on those, every situation is unique.

Free advice, is simply that ADVICE, not FACT. This site is not called FREE FACTS, it is called FREE ADVICE.

Pehaps your best option, is to post up, some of your facts, for this poster, research NY Law, and then post.

Tell this person all you know, or have found out, and tell them it is FACT, and you will stand behind those FACTS.

Generally, a fact is defined as something that is true, something that actually exists, or something that can be verified according to an established standard of evaluation.

With the court system, and the DMV, anything can happen, there are too many variables involved, for anybody to predict or provide actual FACTS, that could then be used to predict and conclude an actual factual outcome.

You post up some of your facts, stand behind them, hard and fast, if you can?

Otherwise I stand by what I say!

P.S. Have A Nice Day!

[You Are Guilty]

Generally, the NYDMV is not particularly amenable to conditional licenses at all, much less in the OP's circumstances. That said, nothing is impossible and it doesn't hurt to try - the worst they can do is say "no". From what I've heard, they are a little more lenient in the upstate counties than in NYC, so that may weigh in your favor.

As for the attorney's fee issue, go here and follow the instructions:
[url]http://www.nycourts.gov/admin/feedispute/index.shtml[/url]


PS: RatPack, being a dbag is the quickest way to get banned. You may want to lighten up on the unnecessary rhetoric...

[RatPackLar]

My apologies.

[vwskier]

Thanks guys, I will try to keep working with my current lawyer to see if he can help. Since I feel he is somewhat to blame for me missing the hearing date, perhaps he will try extra hard to fix it. If, after a few days, I am feeling truly mistreated, I will discuss the fee with him first. I'm pretty friendly with his partner, and this is a small town, so they will likely try to do the right thing.

Thanks again