The Hardship Privilege and the Conditional License – New York DWI

March 23, 2017

Hardship Privilege

If you are alleged to have a blood alcohol content of .08 or higher (as a result of a properly administered chemical test of your breath, blood and/or urine) and the court has in its possession certified results of that test, your driver’s license or NYS driving privileges will be suspended pending prosecution at your arraignment – the first court appearance.

If you are suspended at the arraignment and you are eligible for a hardship driving privilege, I will request that the court grant you that privilege. A hardship privilege is a temporary driving privilege that permits you to drive to and from work, school and/or medical appointments ONLY, for as long as you remain on the privilege.

Not every person arrested for DWI is eligible for a hardship privilege, and this is precisely the reason you should contact me as soon as possible after your arrest – so I can determine whether you are eligible, and if so, for what specific purposes.

A driver is only eligible for a hardship if the suspension of all driving privileges would result in an “extreme hardship” in getting to work, school or medical appointments. If someone else in your household is able to drive you, other/public transportation is available, you just don’t need to drive to any of those 3 specifically enumerated obligations, your license is suspended or revoked for any other reason, or you have participated to any extent in the Intoxicated Driver Program (IDP, formerly called the Drinking and Driving Program or DDP) at any time during the 5 years immediately prior to the current arrest, then you will not qualify for a hardship.

Even if you are eligible, obtaining a hardship privilege is not as simple as just asking for it. The law (VTL 1193.2(e)(7)) expressly states that the grant of the privilege cannot be based solely upon the testimony of the defendant/licensee. That means that additional proof of your extreme hardship is required before the court will grant you the privilege. By speaking with me immediately after your arrest, we can determine what documentation, witnesses or other evidence exists to support your hardship application, and allow you as much time as possible to gather that evidence prior to your arraignment, which will significantly increase your chance of obtaining the privilege.

If granted the hardship privilege, you will remain on this very limited privilege until either (1) you are granted a pre-conviction conditional license or (2) you are convicted or the case against you is otherwise resolved.

Click here for a link to the suspension pending prosecution/hardship privilege form.

Conditional License

If you are eligible for a hardship privilege, then you will likely also be eligible for a conditional license. The DMV will send you a notice within 30 days of your arraignment or completion of your suspension pending prosecution advising if you are eligible. If so, you will receive instructions telling you how to obtain the conditional license (for a fee, of course). Upon being granted a conditional license, you will gain a little more driving freedom, but will still be subject to restricted privileges. Specifically, the conditional license allows you to drive under the following circumstances ONLY:

(1)  to and from your place of employment;

(2)   during the hours of employment if your job requires you to drive a motor vehicle;

(3)   to and from a Motor Vehicle office to transact business regarding the conditional license or Impaired Driver Program (IDP) (previously known as Drinking Driving Program (DDP));

(4)  to and from a class or activity that is an authorized part of the IDP;

(5)   to and from a class or course at an accredited school, college or university, or at a state-approved institution of vocational or technical training in which you are enrolled – a conditional license/driving privilege CANNOT be used to drive to and from a high school;

(6)  to and from probation activities ordered by the court;

(7)  during an assigned period of three consecutive hours between 5 am and 9 pm once a week – the assigned period will not be changed unless this privilege is amended;

(8)  to and from a medical appointment that is part of necessary treatment for you or a member of your household – you must carry a written statement from your licensed medical practitioner as evidence, and show it to any police officer who asks to see it;

(9)  to and from a child’s school/day care if the child’s attendance at the school/day care is necessary for you to maintain employment or enrollment to an accredited school, college or university, or at a state-approved institution of vocational or technical training.

If granted a pre-conviction conditional license, you will remain on that license until your case is resolved. If you are ultimately convicted of an alcohol or drug related driving offense, you may then apply for a post-conviction conditional license. A post-conviction conditional license is identical to the pre-conviction conditional in terms of driving privileges, but you will again be required to pay a fee to obtain the license. If your case is resolved with a non-alcohol or drug related driving offense, and your license is not otherwise suspended or revoked, then your full driving privileges should be reinstated.

Keep in mind that if you are granted a hardship or conditional privilege and drive at any time outside the specific privileges, or if you are convicted for certain traffic violations while subject to those restrictions, you may lose whatever driving privileges you did have altogether and may be forced to defend against additional charges.

Click here for additional information about the conditional license.

If you have been arrested for DWI or another alcohol or drug related driving offense, contact me, Todd W. Carpenter, Esq., immediately to discuss your options and how I can help you. Call (845) 454-1919, or visit

The sooner I get involved the sooner I can help.