Driving With Suspended License in NY

by Adam Rosenblum

Aggravated Unlicensed Operation in New York (VTL 511)

Driving while your license has been suspended is a crime in New York. Many times drivers are not even aware that their license was suspended and are rudely awakened when they are pulled over and issued a ticket for violating VTL 511. The following information is designed to help you better understand what can lead to a suspension and what you could be facing if you continue to drive after your license is suspended.

Have a question about driving while suspended (AUO)? Post a comment at the bottom of this page and we will get back to you as soon as we can or call 888-883-5529 now to speak to an attorney.

Background Information

Your New York driver’s license can be suspended for a number of reasons. The following are the ones that most drivers are unaware of:

In New York, driving when your license is suspended or revoked is called “Aggravated Unlicensed Operation” and it is considered a crime. There are three degrees of severity associated with Aggravated Unlicensed Operation (AUO) in New York:

  • AUO in the third degree [NY VTL 511(1)] involves knowingly or having reason to know that your license is suspended. It amounts to a misdemeanor. A conviction results in a fine of $200-$500 and up to 30 days of possible jail time.
  • AUO in the second degree [NY VTL 511(2)] involves driving with a suspension caused by DWI/DUI or by having 3 or more suspensions. You can also be guilty of AUO in the second degree when you commit AUO in the third degree for the second time in 18 months. AUO in the second degree is a misdemeanor punishable up to 180 days in jail and a mandatory fine of $500-$1,000. Lastly, there is a minimum, mandatory jail term of 7 days unless you are given 3 years probation.
  • AUO in the first degree [NY VTL 511(3)] involves driving with a license already suspended 10 times on 10 different dates or when a driver commits AUO in the second degree while intoxicated. Being convicted of AUO in the first degree is a felony and you will be forced to pay a fine of $1,000-$5,000 and could face up to 4 years in jail.

Official Text of New York’s AUO Law

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New York Vehicle and Traffic Law (VTL) 511. Operation While License or Privilege is Suspended or Revoked; Aggravated Unlicensed Operation.

1. Aggravated unlicensed operation of a motor vehicle in the third degree.

(a) A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person’s license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner.

(b) Aggravated unlicensed operation of a motor vehicle in the third degree is a misdemeanor. When a person is convicted of this offense, the sentence of the court must be: (i) a fine of not less than two hundred dollars nor more than five hundred dollars; or (ii) a term of imprisonment of not more than thirty days; or (iii) both such fine and imprisonment.

(c) When a person is convicted of this offense with respect to the operation of a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds, the sentence of the court must be: (i) a fine of not less than five hundred dollars nor more than fifteen hundred dollars; or (ii) a term of imprisonment of not more than thirty days; or (iii) both such fine and imprisonment.

2. Aggravated unlicensed operation of a motor vehicle in the second degree.

(a) A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the second degree when such person commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as defined in subdivision one of this section; and (i) has previously been convicted of an offense that consists of or includes the elements comprising the offense committed within the immediately preceding eighteen months; or (ii) the suspension or revocation is based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of this chapter, a finding of driving after having consumed alcohol in violation of section eleven hundred  ninety-two-a of this chapter or upon a conviction for a violation of any of the provisions  of  section eleven hundred ninety-two of this chapter; or (iii) the suspension was a mandatory suspension pending prosecution of a charge of a violation of section eleven hundred ninety-two of this chapter ordered pursuant to paragraph (e) of subdivision two of section eleven hundred ninety-three of this chapter or other similar statute; or (iv) such  person has in effect three or more suspensions, imposed on at least three separate dates, for failure to answer, appear or pay a fine, pursuant to subdivision three of section two hundred twenty-six or subdivision four-a of section five hundred ten of this chapter.

(b) Aggravated unlicensed operation of a motor vehicle in the second degree is a misdemeanor. When a person is convicted of this crime under subparagraph (i) of paragraph (a) of this subdivision, the sentence of the court must be: (i) a fine of not less than five hundred dollars; and (ii) a term of imprisonment not to exceed one hundred  eighty days; or (iii) where appropriate a sentence of probation as provided in subdivision six of this section; or (iv) a term of  imprisonment as a condition of a sentence of probation as provided in the penal law and consistent with this section. When a person is convicted of this crime under subparagraph (ii), (iii) or (iv) of paragraph (a) of this subdivision, the sentence of the court must be: (i) a fine of not less than five hundred dollars nor more than one thousand dollars; and (ii) a term of imprisonment of not less  than seven days nor more than one hundred eighty days, or (iii) where appropriate a sentence of probation as provided in subdivision six of this section; or (iv) a term of imprisonment as a condition of a sentence of probation as provided in the penal law and consistent with this section.

3. Aggravated unlicensed operation of a motor vehicle in the first degree.

(a) A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the first degree when such person: (i) commits the offense of aggravated unlicensed operation of  a  motor vehicle in the second degree as provided in subparagraph (ii), (iii) or (iv) of paragraph (a) of subdivision two of this section and is operating a motor vehicle while under the influence of alcohol or a drug in violation of subdivision one, two, two-a, three, four, four-a or five of section eleven hundred ninety-two of this chapter; or (ii) commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as  defined in subdivision one of this section; and is operating a motor vehicle while such  person has in effect ten or more suspensions, imposed on at least ten separate dates for failure to answer, appear or pay a  fine, pursuant to subdivision three of section two hundred twenty-six of this chapter or subdivision four-a of section five hundred ten of this article; or (iii) commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as defined in subdivision one of this section; and is operating  a motor vehicle while under permanent revocation as set forth in subparagraph twelve of paragraph (b) of subdivision two of section eleven hundred ninety-three of this chapter.

(b) Aggravated unlicensed operation of a motor vehicle in the first degree is a class E felony. When a person is convicted of this crime, the sentence of the court must be: (i) a fine in an amount not less than five hundred dollars nor more than five thousand dollars;  and (ii) a term of imprisonment as provided in the penal law, or (iii) where appropriate and a term of imprisonment is not required by the penal law, a sentence of probation as provided in subdivision six of this section, or (iv) a term of imprisonment as a condition of a sentence of probation as provided in the penal law.

4.  Defense.

In any prosecution under this section or section five hundred eleven-a of this chapter, it is a defense that the person operating the motor vehicle has at the time of the offense a license issued by a foreign country, state, territory or federal district, which license is valid for operation in this state in accordance with the provisions of section two hundred fifty of this chapter.

5.  Limitation on pleas.

Where an accusatory instrument charges a violation of this section, any plea of guilty entered in satisfaction of such charge must include at least a plea of guilty of one of the offenses defined by this section and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, that if the district attorney upon reviewing the available evidence determines that the charge of a violation of this section is not warranted, he may set forth upon the record the basis for such determination and consent to a disposition by plea of guilty to another charge in satisfaction of such charge, and the court may accept such plea.

6. Sentence of probation.

In any case where a sentence of probation is authorized by this section, the court may in its discretion impose such sentence, provided however, if the court is of the opinion that a program of alcohol or drug treatment may be effective in assisting in prevention of future offenses of a similar nature upon imposing such sentence, the court shall require as a condition of the sentence that the defendant participate in such a program.

7.  Exceptions.

When a person is convicted of a violation of subdivision one of two of this section, and the suspension was issued pursuant to subdivision four-e of section five hundred ten of this article due to a support arrears, the mandatory penalties set forth in subdivision one or two of this section shall not be applicable if, on or before the return date or subsequent adjourned date, such person presents proof that such support arrears have been satisfied as shown by certified check, notice issued by the court ordering the suspension, or notice  from a support collection unit. The sentencing court shall take the satisfaction of arrears into account when imposing a sentence for any such conviction.

 

Common Defenses to Aggravated Unlicensed Operation (AUO)

Pursuant to the AUO statute, if at the time of getting ticketed you held a driver’s license from a foreign country, state, territory, or federal district permitting you to drive in New York, then you cannot be convicted of AUO in New York. However, most of us do not fall into this limited category of drivers. For those of us with a New York license, do not lose hope! There is a great defense that good attorneys implement in order to help you fight your AUO charge.

If enough evidence is garnered, a defense that usually is quite successful is called the “lack of knowledge” defense. According to the AUO statute (see above), in order for an AUO charge in NY to hold up, you had to have known or should have known that your license was suspended.

This defense will almost always result in a reduction or outright dismissal if you can present concrete evidence of each of the following:

  • You honestly had no idea that your license was suspended
  • You did not receive any written notice of the suspension (i.e. mail, e-mail, etc.)
  • You did not receive any verbal notice of the suspension (i.e. phone call, etc.)
  • You could not have been expected to know that your license was suspended

However, if the reason you were not aware of the suspension is because you did not open your mail (even though the DMV sent you a letter informing you of the suspension), then it will be much harder to successfully mount a “lack of knowledge defense.”

In such a case, a prosecutor will likely say that you should have known under the circumstances because a person of normal sensibilities checks their mail regularly and would have found out from the sent letter. Remember, make sure to give all of the facts to your NY traffic ticket attorney and supply him with any documents you received regarding your suspension. Doing this will allow him to help construct the best defense possible for you.

Case Law Analysis

The case law in New York regarding  driving while suspended license tickets reveals a little-known insight into defeating your AUO charge. 

In People v. Pacer, 847 NE 2d 1149, the prosecution attempted to introduce an affidavit prepared by an official at the DMV claiming that all of its notice procedures were followed effectively. Additionally, the prosecution admitted that the affidavit was a “sworn document prepared by a government official specifically for use by the prosecution at trial” (see People v. Pacer, 6 N.Y.3d 504).

Cleverly, the defense attorney cited a famous Supreme Court case, Crawford v. Washington, to help his client. In Crawford, the Supreme Court ruled that testimonial statements that were not previously subjected to cross-examination are inadmissible against a criminal defendant (see Crawford v. Washington, 541 U.S. 36).

The defense attorney used this precedent to argue that the affidavit constituted the paradigmatic piece of evidence that Crawford required to be excluded.

In an amazing ruling, the court in Pacer found:

  • “Here, the affiant’s sworn statement—that she had information causing her to believe that the Department actually mailed notice of revocation to defendant—was crucial to the People’ case. Faced with evidence of this type, defendants have no means of challenging the People’s proof on a critical element. Without an opportunity to cross-examine the affiant, defendant had no chance to inquire about the basis for the affiant’s “information and belief” that the Department mailed the notice. Defendant had no chance to inquire whether the Department sometimes makes mistakes in mailing revocation notices; whether there were other drivers in the Department’s database with the same name as defendant to whom the Department might have mailed the notice; to what address the affiant believed, based on her information, the Department had mailed the notice; whether the notice might have been returned undelivered; or whether the affiant could testify reliably about procedures as they existed 16 years earlier. In short, the lack of a live witness to confront eliminated defendant’s opportunity to contest a decisive piece of evidence against him.” (See People v. Pacer, 6 N.Y.3d 504, 509.)

What does all of this mean for you? If you were ticketed with AUO in New York, now you know that if any affidavit is being used against you by the DMV (or a similar kind of written document), but the author of that document is not willing to come to court to be cross-examined by your attorney at trial, New York law and federal law requires that the document be excluded from evidence and not used against you!

This case is a great weapon that any traffic ticket attorney trying AUO cases should use whenever he or she finds it applicable.

It is crucial to remember that the prosecution bears the burden of proof even in an AUO case. This means the prosecution must be able to show that you knew or should have known about the suspension. If your attorney can eliminate such evidence based on this precedent, you are well on your way to a lesser offense or an outright dismissal.

Who Should You Contact?

The Rosenblum Law Firm would like to help you regain your driving privileges and avoid a criminal conviction. Our law firm has experience with getting New York suspended licenses reinstated and getting the results you are looking for. E-mail or call us today at 888-815-3649.

 

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