N.Y. Comp. Codes R. & Regs. tit. 15 § 136.5

Current through Register Vol. 46, No. 50, December 11, 2024

Section 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)

(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.

N.Y. Comp. Codes R. & Regs. Tit. 15 § 136.5

Amended New York State Register February 11, 2015/Volume XXXVII, Issue 06, eff. 2/11/2015

Amended New York State Register July 6, 2016/Volume XXXVIII, Issue 27, eff. 7/6/2016

Amended New York State Register November 6, 2024/Volume XLVI, Issue 45, eff. 11/6/2024