DUI/DWAI License Consequences not Conveyed to Defendant - Ineffective Assistance Found for DUI/DWAI


New York Criminal Defendants charged with Driving While Intoxicated (DWI) or Driving Under the Influence of Alcohol or Drugs should know the devastating consequences of such a charge, nevertheless a conviction. Aside from the DWI, DUI, DWAI, etc., criminal charge, the person accused of operating a vehicle under the influence of substances may be subject to vehicle forfeiture, losing one's liberty and, as relevant here, losing the ability to drive legally within the state of New York - license suspension or license revocation. Here, the Defendant Olecski states that she received erroneous advice in regards to her ability to drive or, more specifically, her ability to obtain a conditional license after plea. The Court agrees:

Defendant moves to vacate judgment under CPL 440.10(1)(h), which provides for relief where the "judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." Where a defendant has received in effective assistance of counsel, she is entitled to relief under this section. Cf. People v. Maxwell, 89 AD3d 1108 (2d Dept. 2011).

The case is one alleging ineffective assistance of counsel and seeks to re-open a criminal conviction based on the erroneous advice of defense counsel as it relates to the Defendant's ability to drive, something collateral to the criminal action. New York Criminal Defense Attorneys have been inundated with new rules, regulations and requirements, from searching inquiries over immigration consequences to those concerning the licensing of defendants, when it comes to the collateral consequences of a plea bargain. Defendants who plead guilty to DUI, DWI , DWAI, etc., will suffer adverse consequences not only criminally but civilly as well. Often the question becomes when can I drive again? Here, "counsel gave the defendant incorrect advice regarding the relicense consequences of her guilty plea, and defendant...established that she would not have pled guilty but for that advice, she is entitled to relief for ineffective assistance of counsel." The case is not unique and these regulations have since withstood several challenges:

While it appears that no court has considered an ineffectiveness claim based on counsel's ignorance of these relicensing regulations, People v. Luther, 48 Misc 3d 699 (County Ct, Monroe County 2014), examined this same problem through a different lens, and granted the defendant relief under CPL § 440.10. There, the issue was not that defense counsel gave incorrect advice about the relicensing consequences of a guilty plea. It was that, soon after the defendant's guilty plea, the regulations changed. Id.Specifically, defendant pled guilty to driving while intoxicated on February 11, 2013. Id. at 700. His sentence included a six-month license revocation. Id. Just eleven days later, however, on February 22, 2013, the current relicensing regulations went into effect, rending him ineligible to reapply for a driver's license for five years after the six-month revocation. Id. A Town Court Justice granted defendant's motion for relief under CPL § 440.10(1)(h), and the County Court affirmed, describing defendant's experience as both "an affront to the notion [of] due process" and "patently unfair." Id. at 702.[3]

New regulations impact New York Drivers. For instance, here "The DMW's 25-year "look-back" rule, promulgated in 2013, rendered defendant ineligible for a conditional license, 15 NYCRR §134.7(a)(11)(I), and also triggered an automatic license revocation lasting five additional years.[1] 15 NYCRR 136.5(b)(3)(ii)." The slew of regulations are not from the legislature and were not widely publicized, reviewed by the public or voted upon in any forum. Although the New York State DMV posts a synopsis online, the citizens of New York State are met with such new regulations with little, if any, notice that their past conduct and convictions could form the basis of, among other things, a permanent license ban. Something as minor as pleading guilty to a speeding ticket could tip off the DMV and trigger, among other things, a lifetime revocation of one's license. See DMV Website.

Interestingly enough, the Court here arrives at the conclusion that "The five-year revocation is a collateral consequence, not a direct consequence, of the guilty plea, and a court need not inform a defendant of the collateral consequences of a plea of guilty, other than immigration consequences." This, again, foists the responsibility squarely upon the shoulders of a criminal defense attorney handling DWI/DWAI/DUI clients. While immigration consequences have become of paramount importance (see, e.g., Jae Lee ) one's ability to drive within New York State has not received the attention and concern that collateral consequences involving immigration has, or at least not yet.

The Court finds that "he relicensing ramifications were a collateral consequence, and not a direct consequence, of the plea." See People v. Peque, 22 NY3d 168, 185 (2013). Further, "[t]hey were 'peculiar to the [defendant's] personal circumstances and ... not within the control of the court system.' Since the DMV is not within the control of the court, neither the defendant's ineligibility for a conditional license nor the additional five-year revocation was part of the punishment, and the Court was under no duty to advise the defendant about them." (citations omitted).

Here, "the Court concludes that defense counsel's erroneous advice regarding defendant's ability to obtain a conditional license after her conviction constituted ineffective assistance of counsel."

The Case is People v. OLECSKI, 2017 N.Y. Slip Op 27281 (Crim. Ct. 2017).


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