How to Be a Criminal Without Really Trying: New York’s Scofflaw Provisions

August 10, 2011

If you want to be a criminal, but can’t bring yourself to do actual harm, there’s a simple solution. Just ignore correspondence from New York’s Department of Motor Vehicles.

Ignore DMV, and any number of normal, everyday activities can get you arrested.

One of our clients was just driving to work. His wife (who usually took care of the bills) had accidentally let their car insurance lapse. DMV immediately suspended the car’s registration. When our client drove the car, he was committing a misdemeanor - a crime - by driving a car with a suspended registration.

Ultimately, we were able to get the charge reduced to mere operation of an unregistered vehicle, a traffic violation. But not before the client had called his wife and shouted “You’ve made me a criminal!

Driving with a suspended license is another easy way to commit a crime. And you can get your license suspended with little or no effort, as we’ll go into below the fold.

If, for example, you fail to respond to a traffic ticket within 60 days, or to pay a fine, a court may ask DMV to suspend your license. DMV will then send you a notice, giving you 30 days to contact the court.

Don’t ignore that notice! If you show up at court within the 30 days and answer any outstanding ticket and/or pay any unpaid fine, the court must then tell DMV to cancel the notice. If you don’t appear, you’ll be suspended. The suspension will last until you show up and, among other things, pay a $70 suspension-lift fee.

Don’t ignore out-of-state tickets, either. New York has signed an interstate compact and will suspend you if another state brands you a scofflaw. (Ironically, a New Yorker will get no points if convicted in another US state of, say, speeding - although, oddly, points from Quebec and Ontario convictions do appear).

New York imposes ‘driver responsibility assessments’ on people who have six or more points on their licenses, or have alcohol-related convictions. DMV sends a notice of the assessment to the address in its file. Fail to pay an assessment, and you will be suspended.

You’ll note that updating your address with DMV is not just the law, it’s also a good idea. You can’t respond to a notice if you don’t get the notice. And if you don’t get the notice because you failed to obey the law, which requires you to give DMV your current address, a court will have very little sympathy.

Let’s take things a step further: your license has been suspended because you ignored a notice, or didn’t get one at all. What happens if you drive anyway? Well, if you drive while your license is suspended, you aren’t just an unlicensed operator, you’re committing Aggravated Unlicensed Operation, Section 511 of the Vehicle and Traffic Law. There are three degrees of aggravated unlicensed operation (AUO). Keep in mind that one of them is a felony.

AUO 3rd is a misdemeanor. All you have to do is drive while ‘having reason to know’ that your license is suspended. Note that you don’t actually have to know about the suspension.

AUO 2nd is also a misdemeanor. This you commit by driving while suspended and (1) you’ve already been convicted of AUO 3rd within the previous 18 months; (2) the suspension was for an alcohol-related offense, (3) the suspension was one pending prosecution for an alcohol-related offense, or (4) you have three or more suspensions imposed on three or more dates. If convicted of AUO 2nd, you must either be jailed or placed on probation (or both). That’s not true of AUO 3rd (although jail is a possibility).

AUO 1st, on the other hand, is a felony. You commit this felony when you commit AUO 2nd by the second through fourth means mentioned above and are drunk or drugged when you do it. Either that or you must commit AUO 3rd while having 10 or more suspensions imposed on 10 or more dates.

Keep in mind that when you’re charged with one of these offenses, there are both restrictions on plea bargaining, and reluctance on the part of prosecutors and judges to give major breaks to people they see as perpetual scofflaws.

Technically, a plea in satisfaction of a charge brought under Section 511 is supposed to be a plea to an offense defined by that section. Prosecutors regularly interpret that as including Vehicle and Traffic Law Section 511-a. So a defendant charged with AUO 3rd is often offered a plea to Facilitating Aggravated Unlicensed Operation. You are pleading guilty, essentially, to letting yourself drive while suspended. ‘Facilitating’ is a traffic violation, not a crime.

Prosecutors can be reluctant to offer this reduction to people who have failed to get their underlying suspensions cleared up; to people who have prior convictions for AUO or Facilitating AUO; and to people charged with either AUO 2nd or AUO 1st.

So, the bottom line: don’t ignore traffic tickets, in state or out, pay your fines and assessments, and above all, make sure DMV has your current address!

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