New NYS Repeat DWI offender regulations questions

Latest post Tue, May 23 2017 11:56 AM by Duff101. 1,657 replies.
  • Sat, Mar 25 2017 10:56 PM In reply to

    Re: New NYS Repeat DWI offender regulations questions

    NYSRuinsLives:
    TAXAGENT- do you work for any government agency or or do any work for the government (state or federal)?

    No and no. I practice law in my own firm and much of my litigation work involves litigating against the government. I do not represent or advise the federal government or any state or local government. So sorry to burst whatever conspiracy notion may have prompted your question, but I am not here trying to promote the government‘s view of things or to mislead you. I'm simply telling you what the law says. I know that the fact that the law is different than you thought and different than you want is frustrating to you and the others that are in your situation. It’s completely understandable that you wish the law was different than it is.

    But I'm not here to tell you what you want to hear. I participate here to help provide people information on what the law actually says. I don't get paid by anyone to post here, I do this on my own time. Nothing I do here benefits me or my practice since I have a policy of not soliciting or accepting clients from internet message boards on which I participate. Attacking me for the information I give is simply shooting the messenger. I didn’t create the laws and regulations that are keeping you from getting a license. So don't blame me for that.

    NYSRuinsLives:
    First of all, yes the NDR does require participation and they do tell the states what to do with your information.  You cannot dispute that.

    I can and do dispute that the states are required to participate in the NDR. I cited to you earlier the statute which tells you that. But I'll put out the provision here so you need not go someplace else to look it up. 49 U.S.C § 30303 states:

    ________________________________

    §30303. State participation

    (a) Notification.-A State may become a participating State under this chapter by notifying the Secretary of Transportation of its intention to be bound by section 30304 of this title.

    (b) Withdrawal.-A participating State may end its status as a participating State by notifying the Secretary of its withdrawal from participation in the National Driver Register.

    (c) Form and Way of Notification.-Notification by a State under this section shall be made in the form and way the Secretary prescribes by regulation.

    ____________________________________

    As you can see, nothing in there says that the states must participate. They are free to join at any time and free to leave at any time. As this is the law passed by Congress, the Department of Transportation (DOT) cannot override the statute and force the states to participate. Nor does the DOT try to do that. I looked at the DOT official federal regulations for the NDR, 23 C.F.R. §§ 1327.1 through 1327.7, and nothing in there requires every state to participate either. Rather, the regulations simply provide the procedures for how a state may join and for how a state may withdraw from the NDR. Thus, the NDR is totally voluntary on the part of the states. They don’t have to join. The only thing that pushes the states to participate are (1) the possibility of losing some federal funds if they don't and (2) they want access to the information in that database. As a result, even though they are not required to do so, every state nevertheless does participate.

    As the above section I quoted states, once a state agrees to participate, it is bound by the provisions of 49 U.S.C. § 30304. Under the terms of § 30304, participating states must (1) submit reports of actions against drivers to the NDR and (2) must access the NDR to check out records of applicants prior to issuing them a driver’s license. That's it. They have to put information into the NDR and they have to check it before issuing a license. But nothing in the statute or regulations dictates to the state what decision to make on issuing the license. Whether to issue the license is completely up to the state and the laws it has on driver licensing.

    Of course, the problem is that most states have adopted the Driver's Licence Compact (DLC) as part of their law on licensing drivers. The DLC does tell state DMVs what to do with informaion the state gets regarding applicants whose licenses are suspended or revoked in other states. It is the DLC (and statutes like it in non-DLC states) that are what may hold you up from getting licenses in other states while you are still suspended or revoked in NY. I have previously discussed the revocation provision of the DLC in this thread and pointed out that this provision does allow states to consider licensing a driver revoked in another state if the revocation was done more than a year prior to the application for the license in the new state. The problem is that many state DMVs don't really try to give drivers a chance under that provision and just automatically deny the applicant a license. This is why revoked drivers who succeeded in getting licenses in states like Alabama and Colorado had to go to court to get the state to do it. But those successful challenges were to the applicable state law, not a challenge to the NDR or any other federal law. Potentially the same kind of challenge might work in other states, too. Naturally, it takes money and time to litigate those cases and establish the precedent and a lot of applicants simply don't have the kind of cash that it takes to do it. I don't for a minute minimize the difficulty drivers face there.

    NYSRuinsLives:
    It's in their literature, which I posted a link to so that you can actually read it...

    The link you posted to the NHTSA NDR page (and the FAQ page from the link at the bottom of it) nowhere in it says that all states are required to participate in the NDR. What it says is that all DMVs are required to provide information to the NDR. This statement is literally true. But the reason it is true is not that the states are rerquired to participate in the NDR. The reason it is true is that if a state agrees to participate then for as long as it participates it must provide information to the NDR. All states do currently participate, so since all participating states must provide the driver information and all states participate, it follows that all states currently must provide that information. The NHTSA just cut to the bottom line in its FAQ rather than spelling all that out. But I can see where it might leave the impression that all states are required to participate.

    You will also note that the page and FAQ do not say anywhere what decision the state must make on licensing after it accesses the NDR. All it says is that the state must access the NDR and contact the state that originated the report for more info depending on what response the NDR gives. (They do it that way to keep the NDR itself smaller and more affordable to maintain. Rather than hosting all the details of driver history on the NDR itself the NDR simply points the person making the inquiry to the state that does have those records for the details.) 

    So the bottom line is that no state must participate in the NDR, but all of them do anyway. All a participating state must do is provide information to the NDR and access the NDR prior to issuing a license to an applicant. That's it. Nothing in the NDR program tells the state what decision to make regarding issuing driver’s licenses. They look to their own laws on licensing to make that decision. 

    NYSRuinsLives:
    Also, NY owes me money from my taxes, it has been 54 days since they accepted it. All the website says is that my return has been received and it is being reviewed.   When will I get my refund?

    No idea. I did not prepare your return (and indeed I prepare very few returns for clients), do not know the details of your return, nor do I know anything about how you filed the return or how you elected to receive the refund. All those details matter. NY uses a screening system to attempt to identify fraudulent or otherwise questionable returns prior to issuing refunds in order to reduce the state losses do to illegal tax scheeme. If your return was flagged at all during that processing the time to get the refund will be longer. Depending on what the state screening shows, the state may contact you before issuing the refund for more information to resolve whether there is a problem with the return. I of course have no idea if your return has encountered any such problems. Only the Tax Department at this point can tell you when the return will be done processing and when you will get your refund. I'm sorry I can't give you more exact information than that. 

  • Sun, Mar 26 2017 5:01 PM In reply to

    • Justitia
      Consumer
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    • Joined on Sun, Mar 19 2017
    • NY
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    Re: New NYS Repeat DWI offender regulations questions

    Tax Agent, when you see the oral arguments I would be interested in knowing what you think.

  • Mon, Mar 27 2017 2:15 PM In reply to

    Re: New NYS Repeat DWI offender regulations questions

    Justitia:

    Tax Agent, when you see the oral arguments I would be interested in knowing what you think.

    HERE is the link

    Don't Judge me by my past-  I don't live there anymore!

  • Mon, Mar 27 2017 3:37 PM In reply to

    • m j c04
      Consumer
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    • Joined on Mon, Apr 27 2015
    • NY
    • Posts 108

    Re: New NYS Repeat DWI offender regulations questions

    I watched the vid. I think sills did great. I think the judges grilled everyone evenly and sills didnt get singled out which is great for us. Mabey hes not there to argue this point but I would have liked him to mention the retroactiveness of the regulation...or the fact that a few speeding tix and a dwi from 24 yrs ago will render you lifetime ban. Im on the fence as to how I feel the judges will order in this case I dont like how they keep saying just in the instance to acevdo or so and so because the picture is much larger here I just hope they see it. I know you didnt ask for my opinion but here it is. And I just want to thank sills for standing up there and being tough because hes all we have at this point..much respect for him..

  • Mon, Mar 27 2017 4:07 PM In reply to

    • Billy G
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    • Joined on Tue, May 24 2016
    • NY
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    Re: New NYS Repeat DWI offender regulations questions

    m j c04:

    I watched the vid. I think sills did great. I think the judges grilled everyone evenly and sills didnt get singled out which is great for us. Mabey hes not there to argue this point but I would have liked him to mention the retroactiveness of the regulation...or the fact that a few speeding tix and a dwi from 24 yrs ago will render you lifetime ban. Im on the fence as to how I feel the judges will order in this case I dont like how they keep saying just in the instance to acevdo or so and so because the picture is much larger here I just hope they see it. I know you didnt ask for my opinion but here it is. And I just want to thank sills for standing up there and being tough because hes all we have at this point..much respect for him..

    I thought they grilled Sills much harder then the other attorney..Its obvious where their intentions lie...Sills was hardly able to make a point without being interupted especially by that one witch up there! Especially with that dumbass question near the end..If you win will it be a farse? They grilled him to answer it like it made sense? What the ***heck did they even mean? I dont think Sills knew either!  I hate to say it and hope to god Im wrong but Im not feeling it at all! I just hope there is another way around this if we fail..

  • Mon, Mar 27 2017 4:17 PM In reply to

    • loop46
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    Re: New NYS Repeat DWI offender regulations questions

    Yes I agree. They didn't give much of a chance to speak. Seems like the other attorneys where given more time. Still sick to see the one judge not sitting in on this case. Just seems they didn't want to hear any of it. The female judge truly gave no time for Eric Sills to speak. 

  • Mon, Mar 27 2017 4:22 PM In reply to

    • Not driving
      Consumer
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    • NY
    • Posts 1

    Re: New NYS Repeat DWI offender regulations questions

    I just watched it too and I don't feel good about it either.  They keep bringing up that the respondants drove drunk repeatedly, suggesting maybe they should have lifetime ban... seems like they already have preconceived notions of what is being argued and don't care about DMV overstepping bounds as much.  

    What are people supposed to do without a license.  Most likely will continue to drive and possibly receive AUO, which I'm sure DMV will use as additional reason to deny.  Seriously what is so bad about putting in an interlock device, making the driver pay for it, and at least start with a conditional license?  Someone there has made it their mission to punish drunk drivers as much as they can.

  • Mon, Mar 27 2017 4:53 PM In reply to

    • loop46
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    • Joined on Thu, Feb 9 2017
    • NY
    • Posts 12

    Re: New NYS Repeat DWI offender regulations questions

    I agee. I was a foolish kid. And now have to suffer for the rest of my life and I'm only 37. I would gladly drive with and interlock device. I have only drank once in almost 12 year this April and now I will have to live a life of shame for things I did 20 years ago. I'm grown and have a family. Push the DADSS program and stop the problem before it happen. They stated of all the applications that where received. Thats a hundred and fifty they are profiting at a time off of people's hopes and dreams. I hate the idea of driving with out a liscense because I don't want to be in there trap anymore but a starving man will steal to survive. 

  • Mon, Mar 27 2017 5:00 PM In reply to

    • Frankie K
      Consumer
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    • Joined on Thu, Feb 23 2017
    • NY
    • Posts 13

    Re: New NYS Repeat DWI offender regulations

    Billy G:

    m j c04:

    I watched the vid. I think sills did great. I think the judges grilled everyone evenly and sills didnt get singled out which is great for us. Mabey hes not there to argue this point but I would have liked him to mention the retroactiveness of the regulation...or the fact that a few speeding tix and a dwi from 24 yrs ago will render you lifetime ban. Im on the fence as to how I feel the judges will order in this case I dont like how they keep saying just in the instance to acevdo or so and so because the picture is much larger here I just hope they see it. I know you didnt ask for my opinion but here it is. And I just want to thank sills for standing up there and being tough because hes all we have at this point..much respect for him..

    I thought they grilled Sills much harder then the other attorney..Its obvious where their intentions lie...Sills was hardly able to make a point without being interupted especially by that one witch up there! Especially with that dumbass question near the end..If you win will it be a farse? They grilled him to answer it like it made sense? What the ***heck did they even mean? I dont think Sills knew either!  I hate to say it and hope to god Im wrong but Im not feeling it at all! I just hope there is another way around this if we fail..

     

    Billy G:

    m j c04:

    I watched the vid. I think sills did great. I think the judges grilled everyone evenly and sills didnt get singled out which is great for us. Mabey hes not there to argue this point but I would have liked him to mention the retroactiveness of the regulation...or the fact that a few speeding tix and a dwi from 24 yrs ago will render you lifetime ban. Im on the fence as to how I feel the judges will order in this case I dont like how they keep saying just in the instance to acevdo or so and so because the picture is much larger here I just hope they see it. I know you didnt ask for my opinion but here it is. And I just want to thank sills for standing up there and being tough because hes all we have at this point..much respect for him..

    I thought they grilled Sills much harder then the other attorney..Its obvious where their intentions lie...Sills was hardly able to make a point without being interupted especially by that one witch up there! Especially with that dumbass question near the end..If you win will it be a farse? They grilled him to answer it like it made sense? What the ***heck did they even mean? I dont think Sills knew either!  I hate to say it and hope to god Im wrong but Im not feeling it at all! I just hope there is another way around this if we fail..

     

    Billy G:

    m j c04:

    I watched the vid. I think sills did great. I think the judges grilled everyone evenly and sills didnt get singled out which is great for us. Mabey hes not there to argue this point but I would have liked him to mention the retroactiveness of the regulation...or the fact that a few speeding tix and a dwi from 24 yrs ago will render you lifetime ban. Im on the fence as to how I feel the judges will order in this case I dont like how they keep saying just in the instance to acevdo or so and so because the picture is much larger here I just hope they see it. I know you didnt ask for my opinion but here it is. And I just want to thank sills for standing up there and being tough because hes all we have at this point..much respect for him..

    I thought they grilled Sills much harder then the other attorney..Its obvious where their intentions lie...Sills was hardly able to make a point without being interupted especially by that one witch up there! Especially with that dumbass question near the end..If you win will it be a farse? They grilled him to answer it like it made sense? What the ***heck did they even mean? I dont think Sills knew either!  I hate to say it and hope to god Im wrong but Im not feeling it at all! I just hope there is another way around this if we fail..

     

    Billy G:

    m j c04:

    I watched the vid. I think sills did great. I think the judges grilled everyone evenly and sills didnt get singled out which is great for us. Mabey hes not there to argue this point but I would have liked him to mention the retroactiveness of the regulation...or the fact that a few speeding tix and a dwi from 24 yrs ago will render you lifetime ban. Im on the fence as to how I feel the judges will order in this case I dont like how they keep saying just in the instance to acevdo or so and so because the picture is much larger here I just hope they see it. I know you didnt ask for my opinion but here it is. And I just want to thank sills for standing up there and being tough because hes all we have at this point..much respect for him..

    I thought they grilled Sills much harder then the other attorney..Its obvious where their intentions lie...Sills was hardly able to make a point without being interupted especially by that one witch up there! Especially with that dumbass question near the end..If you win will it be a farse? They grilled him to answer it like it made sense? What the ***heck did they even mean? I dont think Sills knew either!  I hate to say it and hope to god Im wrong but Im not feeling it at all! I just hope there is another way around this if we fail..

    I think Mr Sills handled the last question great ..They tried to trap him & he wouldnt bite ..They asked if the DMV'S guidlines for issuing a license for extenuating circumstances was not a farce would he lose the case .. since 19 waivers have been given it would be hard to prove that it is ..At one point he tried to give #s the hag justice said she didnt want to hear math..so he answered great for someone who was ambushed..

     

  • Mon, Mar 27 2017 5:22 PM In reply to

    • Billy G
      Consumer
    • Top 500 Contributor
    • Joined on Tue, May 24 2016
    • NY
    • Posts 126

    Re: New NYS Repeat DWI offender regulations

    I was getting disgusted how they acted! For people who are supposed to be judges and set an example they did a horrific job! That hag was Interrupting Sills when he tried to make a point and when she wasnt interrupting him she was coughing! They to me are a Sad excuse for people who judge us! We are in deep sh@t! I dont know how many of you know the song "And Justice for all" By Metallica but as soon as I watched it, the whole thing reminded me of that song! I think its a disgrace! 

     

    If DMV did not have a right to make policy without legislature then there should be no argument! Arguing that the legislature hasnt said anything does not make it proper process...I didnt hear one judge say that though! 

    Im disgusted! 47 soon to be 48 and Im supposed to live the rest of my life with no license...I DONT THINK SO! 

    We were arrested by punks who do worse than we did but get away with it because of a badge and we are being judged by the same type of people who are above the law..Id like to see if any of their kids ever get arrested for DWI! 

    If we lose I am done! I will find a way to leave this shithole and pay my taxes in a state where people act like human beings...

  • Mon, Mar 27 2017 5:51 PM In reply to

    • Frankie K
      Consumer
    • Not Ranked
    • Joined on Thu, Feb 23 2017
    • NY
    • Posts 13

    Re: New NYS Repeat DWI offender regulations

    Billy G:

    I was getting disgusted how they acted! For people who are supposed to be judges and set an example they did a horrific job! That hag was Interrupting Sills when he tried to make a point and when she wasnt interrupting him she was coughing! They to me are a Sad excuse for people who judge us! We are in deep sh@t! I dont know how many of you know the song "And Justice for all" By Metallica but as soon as I watched it, the whole thing reminded me of that song! I think its a disgrace! 

     

    If DMV did not have a right to make policy without legislature then there should be no argument! Arguing that the legislature hasnt said anything does not make it proper process...I didnt hear one judge say that though! 

    Im disgusted! 47 soon to be 48 and Im supposed to live the rest of my life with no license...I DONT THINK SO! 

    We were arrested by punks who do worse than we did but get away with it because of a badge and we are being judged by the same type of people who are above the law..Id like to see if any of their kids ever get arrested for DWI! 

    If we lose I am done! I will find a way to leave this shithole and pay my taxes in a state where people act like human beings...

     

    Billy G:

    I was getting disgusted how they acted! For people who are supposed to be judges and set an example they did a horrific job! That hag was Interrupting Sills when he tried to make a point and when she wasnt interrupting him she was coughing! They to me are a Sad excuse for people who judge us! We are in deep sh@t! I dont know how many of you know the song "And Justice for all" By Metallica but as soon as I watched it, the whole thing reminded me of that song! I think its a disgrace! 

     

    If DMV did not have a right to make policy without legislature then there should be no argument! Arguing that the legislature hasnt said anything does not make it proper process...I didnt hear one judge say that though! 

    Im disgusted! 47 soon to be 48 and Im supposed to live the rest of my life with no license...I DONT THINK SO! 

    We were arrested by punks who do worse than we did but get away with it because of a badge and we are being judged by the same type of people who are above the law..Id like to see if any of their kids ever get arrested for DWI! 

    If we lose I am done! I will find a way to leave this shithole and pay my taxes in a state where people act like human beings...

     

    Billy G:

    I was getting disgusted how they acted! For people who are supposed to be judges and set an example they did a horrific job! That hag was Interrupting Sills when he tried to make a point and when she wasnt interrupting him she was coughing! They to me are a Sad excuse for people who judge us! We are in deep sh@t! I dont know how many of you know the song "And Justice for all" By Metallica but as soon as I watched it, the whole thing reminded me of that song! I think its a disgrace! 

     

    If DMV did not have a right to make policy without legislature then there should be no argument! Arguing that the legislature hasnt said anything does not make it proper process...I didnt hear one judge say that though! 

    Im disgusted! 47 soon to be 48 and Im supposed to live the rest of my life with no license...I DONT THINK SO! 

    We were arrested by punks who do worse than we did but get away with it because of a badge and we are being judged by the same type of people who are above the law..Id like to see if any of their kids ever get arrested for DWI! 

    If we lose I am done! I will find a way to leave this shithole and pay my taxes in a state where people act like human beings...

    Billy I agree with you %100 & feel your anger ..I cant leave right now though i have places i can go ,but wont !!! *** that! I'm going to do what I have to to take are of my family regaurdless of the bs NY Gov . If they gave me license tomorrow i would not give up  the fight ..I dont care what legal eagles say ..these bs regs are unconstitutional ..The rite to drive in this day in age is a necessity not a luxury !!! Cell phones are a luxury & privilege yet the government hands them out ..They use administrative law to skirt the constitution...Cuomo can out right say he refuses to enforce the POTUS'S executive orders ,but NYers must follow his ! *** THAT !!

     

  • Mon, Mar 27 2017 11:30 PM In reply to

    • Justitia
      Consumer
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    • Joined on Sun, Mar 19 2017
    • NY
    • Posts 30

    Re: New NYS Repeat DWI offender regulations

    Yeah.  I don't think it looks good.  I wonder what the contingency plan is.  

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