April 4, 2014
I’ve fielded a lot of phone calls over the last few months from people who have been caught up in the “new” DMV regulatory rigmarole and have been denied driving privileges after they re-applied. So this quick little article is for all those out there who I haven’t been able to speak to directly and explain what your options are…if any.
The scenario typically plays out something like this:
You were convicted of an alcohol related driving offense a rrreeeaaallllly long time ago (say, October 2011).
When you agreed to plead out to whatever offense you pleaded to (e.g., DWI – .08% or more BAC), you were advised that your license would be suspended for a specified period of time, like 6 months, or 1 year for an Aggravated DWI or because of a prior or some other aggravating factor.
You dutifully served your suspension without incident, and I’ll be damned if you didn’t learn your lesson and swore off the “evils of alcohol” altogether and readied yourself for your new and prosperous life once you get your license back and are able to feel like a citizen of the 21st century again!
So, at or near the termination of your suspension period – and with excitement and relief – you reapply for your license according to very instructions provided you by the DMV, following every letter with meticulous attention.
Or maybe you’re one of the countless souls who procrastinated in reapplying for your license because you were fortunate enough to just not really need it back right away (even tho you were eligible to reapply back in 2011).
So in goes the application….your hand extended, grinning ear to ear, eager to receive your temporary license back in return and begin anew….
WHAM! The DMV denies your application! And not only did they deny it, they did so with a vengeance! You were told that you couldn’t reapply for your license again for another 5 years! Or worse: you can NEVER reapply!
In astonishment you stare back at the clerk, mouth agape, and manage only to blurt out (quite possibly at the top of your lungs with a raspberry red face)…..”WTF?!?!”
You are now a victim of the notorious “new” DMV regulations. Welcome to the club! You’re not alone.
So what do you do now?
If you have any desire to attempt to reverse the DMV’s determination to deny your application and possibly regain your driving privileges in the future, you MUST follow a very specific course of action within a very short timeline. Stewing in anger for a few days or weeks before taking action is not an option for you here.
The DMV will issue you a written decision denying your application. The end of that letter will advise you that you only have 60 DAYS from the date of that decision to file your administrative appeal with the DMV, should you wish to do so (I’m assuming you probably wish to do so).
There are very specific arguments that should/can be made in this appeal (“I haven’t had a sip of booze in 1 year and I need my license to keep my job, and oh yeah, this is total effin bullsh*t!!!” is not a worthwhile argument, I promise you). You would be wise to consult an attorney at this stage.
In all honesty, the odds of having any success with this appeal is pretty much non-existent (you’re asking the DMV to reverse itself, so good luck with that!). But this step MUST be taken in order for you to be able to proceed to the next step of filing what’s called an “Article 78” in state Supreme Court.
The Article 78 is your opportunity to get your case in front of an actual judge who will consider more or perhaps just broader arguments than you may have been able to include in your administrative appeal, like ex post facto and constitutionality issues. However, as with the admin appeal, the Article 78 also has a very short timeline.
The Article 78 petition must be filed within 4 MONTHS of the final DMV decision denying your administrative appeal. And I can tell you first hand, 4 months goes by a lot faster than you might think. An Article 78 is extensive and requires a lot of research and work and is just generally very time consuming to prepare. You should absolutely hire an attorney experienced with Article 78 petitions of this nature. And your attorney will thank you very much for giving him or her as much time as possible to prepare the petition; whereas your case may be flat out rejected by a multitude of attorneys if you wait until the 11th hour (i.e., 3 months and 25 days) to find someone willing to handle it for you.
If you fail to meet either of these deadlines, you’re totally out of luck. You’re only real hope at that point is to pray that the entire DMV “new” regulatory system is eventually ruled unconstitutional and everyone affected gets their license back. Any thoughts on how long something like that can take?
The Article 78 stage is where the vast majority of these cases are holed up now, and decisions are just starting to trickle out. So while you are required to get your appeal and Article 78 petition filed tout suite, getting an actual decision can take a while (hurry up and wait!). All the more reason to start the ball rolling on your appeal and petition as soon as possible!! We’ll talk about what happens after that, if necessary, another day.
As always, I strongly encourage you to speak with a knowledgeable and experienced attorney about your options before embarking down this dark and frustrating path yourself. Call me at Catalano & Carpenter LLP to schedule a free consultation as soon as possible.