Offering a False Instrument for Filing

by Adam Rosenblum

You may have received a call from a DMV investigator wanting to question you by phone or in person about a driver’s license application. While your first inclination may be to cooperate with the investigator, doing so may subject you to more serious consequences than you might expect.  It is quite common for an individual to show up at NY DMV headquarters in Albany for their appointment with the DMV investigator only to be met by a New York State Trooper who will arrest them on the spot and bring him to criminal court where he will be charged with either a misdemeanor (punishable by up to a year in county jail) but more likely a felony offense (punishable by a year or more in state prison).

Failing to respond truthfully to questions on a NY driver’s license application or providing false documentation to the DMV can not only subject you to loss of your NY license but also criminal liability and result in a non-expungeable criminal record. Under NY Penal Law, if you provide false information in an effort to obtain a NY driver’s license, you may potentially be charged with any one or more of the following serious state law crimes, each of which falls under the broader category of fraud:

  1. Offering a False Instrument for Filing in the First Degree under NY PL 175.35, which is a Class E Felony, or in the Second Degree under NY PL 175.30, which is a Class A misdemeanor offense.
  2. Falsifying Business Records in the First Degree under NY PL 175.10, which is a Class E Felony, or in the Second Degree under NY PL 175.05, which is a Class A misdemeanor.
  3. Making a Punishable False Written Statement under NY PL 210.45, which is a Class A misdemeanor.
  4. Criminal Possession of a Forged Instrument in the Second Degree under NY PL 170.25, which is a Class D felony.

These days, the most common way that people end up in hot water with DMV is because they now have photo matching technology which can determine whether or not an individual has had a previous driver’s license.

The standard driver’s license application is known as the MV-44.  This form contains the following question:

Do you now have or did you ever have a New York driver license?

Many applicants either intentionally or unintentionally select the “No” box and when the photo match technology reveals that their photo did in fact appear on a different driver’s license, it prompts the DMV fraud department to get involved.  Sometimes it’s an innocent mistake, but most of the time this conflict occurs when someone’s license has been suspended or revoked and now they are trying to get a new license under a different name.  It is also quite common for immigrants to obtain a license under a false name before they are naturalized and then later apply for a new license under their actual name.

What is Offering a False Instrument for Filing?

Under NY Penal Code 175.30, a person is guilty in the second degree of offering a false instrument for filing when the prosecutor proves each of the following elements beyond a reasonable doubt:

  1. The person offered or presented a written instrument to a public office for filing
  2. The person knew that the written instrument contained a false statement or false information
  3. The person knew or believed that the written instrument would be filed, registered, or become a part of the public office’s records

If the prosecutor can also prove that the person intended to defraud the State of NY by filing the false written instrument, then the person will be guilty of the crime in the first degree which is a Class E felony. NYCP 175.35.

Both the misdemeanor and felony versions of the crime define “written instrument” broadly to include any document that conveys information and which can be used to the advantage or disadvantage of some person, and in People v. Headley, the Supreme Court of NY held that a document filed with a public office will be considered a “written instrument” when it contains information that will be relied on for its accuracy by a government official. Thus, when you provide false or inaccurate information on your license application in order to obtain a NY driver’s license, you could be subjecting yourself to the criminal charge of offering a false instrument for filing because the DMV, which is a public office, is relying on that information to make its determination to issue you a NY driver’s license.

With respect to the felony version of the offense, the NY Court of Appeals has held that intent to defraud can be defined as committing an act for the purpose of leading another into error or disadvantage.  People v. Briggins 50 N.Y.2d 302, 309 (1980). In People v. Kase, “intent to defraud” was found where a defendant filed a false statement with a public agency because by way of his misrepresentation, the defendant sought to interfere with the State’s ability to carry out it’s legitimate and official purpose of issuing liquor licenses.  Thus, in the context of a driver’s license application, if the prosecution can prove that a misrepresentation was made for the purpose of getting the DMV to issue you a NY driver’s license, you could be charged with the felony version of offering a false instrument for filing.

How Can Providing False Information on My Application Affect My Driver’s License or Privileges to Drive in NY?

In addition to a criminal offense under the NY Penal Code, if you provide false information on your driver’s license application, you can also be charged under NY Vehicle and Traffic Law, and this can result in a suspension or revocation of your NY driver’s license, or privilege to drive in NY.

Under NY Vehicle and Traffic Law § 392, a person is guilty of a misdemeanor offense where the person knowingly made a false statement on his or her driver’s license application or provides false information or proof in connection with their driver’s license application.  A person is also guilty of a misdemeanor under this section of the VTL if that person operates his car using a license that he or she obtained in violation of VTL § 392.

When you are charged with a violation under § 392, the Commissioner of motor vehicles has the ability under VTL § 510 to investigate the violation at a DMV suspension hearing, and if warranted, suspend or revoke your NY driver’s license. If you are a non-resident of NY with an out of state driver’s license, and you are charged under § 392, then § 510 authorizes the Commissioner to suspend or revoke your privilege to drive on the roads in NY pending the outcome of your DMV suspension hearing.

What Do I Do if I Have Been Charged with a Crime or a Violation of VTL § 392 for Lying on My Driver’s License Application?

Whether you have been charged with a crime or under the VTL for providing false or inaccurate information on your driver’s license application, you should contact an experienced Criminal and Traffic Attorney at The Rosenblum Law Firm for a free consultation so you can make sure your rights are protected and that an appropriate defense can be presented at the DMV suspension hearing and/or in criminal court. Call us at 888-883-5529.