Last Updated: 7/13/18 | Reviewed By: Adam H. Rosenblum Esq.
Penalties for Driving While Suspended in New York
Driving with a suspended or revoked license is called Aggravated Unlicensed Operation (AUO). This is a misdemeanor offense punishable by a fine of $200 to $5,000, a state surcharge, and up to 30 days in prison, depending on the circumstances and degree of the crime that was charged.
Here are some of the specific consequences of a driving while suspended/AUO charge:
Criminal record: Driving on a suspended license is classified as a criminal offense in New York. The formal charge is called Aggravated Unlicensed Operation (AUO). There are three levels of AUO in New York. Third- and second-degree AUO are misdemeanors, while first-degree AUO is a felony. A conviction means having a permanent criminal record, which can affect many aspects of a person’s life from employment to housing opportunities, and even immigration status.
Jail time: Drivers caught driving while suspended risk a jail sentence upon conviction. Drivers can spend up to 30 days in jail for AUO in the third degree; up to 180 days in jail for AUO in the second degree; and up to four years in jail for AUO in the first degree.
Fines: The cost of a conviction for driving on a suspended license in New York depends on the severity of the charge. Third-degree AUO can cost $200 to $500. Second-degree AUO can cost $500 to $1,000. In the most severe cases, first-degree AUO can cost $1,000 to $5,000.
|Degree of AUO||Fine||Max. Jail Sentence||Criminal Charge|
|Third Degree §511-1||$200 to $500||Up to 30 days||Misdemeanor|
|Second Degree §511-2||$500 to $1,000||Up to 180 days||Misdemeanor|
|First Degree §511-3||$1,000 to $5,000||Up to 4 years||Felony|
Auto insurance premium increase: Driving while suspended in New York can cause insurance premiums to skyrocket. While the exact amount varies, rates can go up by as much as 40 percent. He/she will also be classified as a high-risk driver and very likely could get dropped by the insurer altogether.
Conditions for NY AUO (Driving While Suspended) Charge
- Third Degree AUO
- Found to be operating a motor vehicle with knowledge that their license has been suspended or revoked.
- Second Degree AUO
- Has been previously convicted of AUO in the third degree within the last 18 months;
- Suspension or revocation is based upon a chemical test refusal;
- Suspension was a mandatory suspension pending prosecution for charge of driving while intoxicated;
- Has three or more suspensions imposed on at least three separate dates for failure to appear, answer or pay a fine.
- First Degree AUO
- Operating a motor vehicle while under the influence of drugs or alcohol, along with a previous second-degree AUO;
- Committed the offense while having in effect 10 or more suspensions, imposed on at least 10 separate dates for failure to answer, appear or pay a fine;
- Committed the offense while under permanent revocation resulting from three DWI convictions or three refusals to submit to a chemical test (or any combination thereof), as well as from two DWI convictions resulting in serious injury or death.
Hiring an Attorney to Fight a Driving While Suspended in NY Charge
Driving with a suspended license is more than just a traffic ticket—it is a serious criminal offense. In addition to jail time and substantial fines, a conviction can make it difficult to get affordable car insurance for years. It is urgent that any driver facing a charge of driving while suspended hire a qualified NY traffic ticket attorney to reduce the charges, minimize the fines, and avoid both a criminal record and the risk of jail time.
Common Defenses to Aggravated Unlicensed Operation (AUO)
Pursuant to the AUO statute, if at the time of getting ticketed the driver held a license from a foreign country, state, territory, or federal district permitting him/her to drive in New York, then he/she cannot be convicted of driving while suspended in New York. However, most drivers do not fall into this limited category. For those with only a New York license, do not lose hope! There is a great defense that good attorneys implement in order to help fight this charge.
If enough evidence is garnered, a defense that usually is quite successful is called the “lack of knowledge” defense. According to the statute (see above), in order for a driving while suspended charge in NY to hold up, the driver must have known or should have known that the license was suspended. A New York driver’s license can be suspended for a number of reasons that can catch the driver by surprise. The following are the ones that most drivers are unaware of:
- Being convicted of speeding 3 times within 18 months
- Being convicted of speeding twice in a construction zone within 18 months
- Accumulating 11 points within 18 months
- Failing to respond to or pay a New York traffic ticket (including cell phone tickets, seatbelt tickets, etc.)
This defense will almost always result in a reduction or outright dismissal if the driver can present concrete evidence that he/she honestly had no idea that the license was suspended because they
- Did not receive any written notice of the suspension (i.e. mail, e-mail, etc.)
- Did not receive any verbal notice of the suspension (i.e. phone call, etc.)
and as a result could not have been expected to know that the license was suspended.
If the reason the person was not aware of the suspension is because he/she did not open their mail (even though the DMV sent a letter regarding 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 the driver 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 a NY traffic ticket attorney and supply him with any documents received regarding the suspension. Doing this will allow him to help construct the best defense possible. Just because you might be guilty in the eyes of the law doesn’t mean a skilled attorney can’t negotiate or argue you out of it. An experienced attorney will know how to negotiate the best outcome possible regardless of the circumstances.
Case Law Analysis
The case law in New York regarding driving while suspended license tickets reveals a little-known insight into defeating the 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.
People v. Pacer, 6 N.Y.3d 504, 509.
What does all of this mean for a driver charged with AUO? Anyone ticketed with AUO in New York now knows that if any affidavit is being used against the driver 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 the defense attorney at trial, New York law requires that the document be excluded from evidence and not used against the driver!
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 driving while suspended case. This means the prosecution must be able to show that you knew or should have known about the suspension. If an attorney can eliminate such evidence based on this precedent, the driver is well on his/her way to a lesser offense or an outright dismissal.
For more information about driving with a suspended license check out our Driving While Suspended ebook.
New York law enforcement can easily look up a driver’s license to see if it is suspended. But can an officer in New York tell if an out-of-state driver’s license has been suspended? The answer is, usually but not always. Thanks to something called the Driver’s License Compact, police officers in New York State (and other participating states) can look up an out-of-state driver’s license during a traffic stop in New York. If the out-of-state license has been suspended, then the New York-based officer can issue a ticket for driving while suspended. Out-of-state drivers still face the same fines, sentencing, and criminal charges as a New York driver. In addition, an out-of-state driver who is convicted of driving while suspended in New York can see the charge appear on their driving record, which will also affect their auto insurance rates.
- Can you go to jail for driving with a suspended license?
Yes. The lowest-level charge for driving while suspended in New York can result in up to 30 days in jail. For the highest-level charge, a person could spend as much as four years behind bars.
- Is it a felony to drive with a suspended license?
In most cases, no. But AUO in the first degree is a felony. There are several circumstances that can result in a first-degree AUO charge (see the chart above).
- If my license is suspended in New York, can I still rent a car in another state during the suspension period?
In most cases, no. Any reputable car rental company will deny the rental application if the driver’s license is suspended.
- Can I get a license in another state if my NY license is suspended?
No. Nearly all license applications in the U.S. ask if the applicant has a suspended license from another state. Those who lie and are caught could face even more serious charges.
- If you give a police a valid out-of-state license will they see your New York suspension?
It depends on the circumstances but very likely, yes. If the out-of-state license is still current and valid, then a suspension in New York is likely to appear on the out-of-state driving record. It’s also possible the out-of-state license will be suspended in response to the New York suspension.
Data on Driving While Suspended in New York
Preliminary figures show that New York law enforcement officials in 2017 issued more than 111,000 tickets for Aggravated Unlicensed Operation (AUO), also known as driving while suspended. This is a 4 percent increase over 2016, in which nearly 106,000 such tickets were written. In 2017, the most tickets for driving while suspended were issued in Suffolk County on Long Island, with more than 20,000 written. This is more than twice the next-highest county, Erie, which handed out 9,305.
It is nearly impossible to tell if a driver’s license has been suspended until after the officer has had a chance to check it during a traffic stop. Thus, a person is most likely going to be charged with AUO after being pulled over for another infraction such as speeding, cell phone or texting violations, or seat belt violations. Nearly 9% of all companion tickets (those issued in addition to the primary reason for the traffic stop) were for driving while suspended.
The facts are clear: driving while suspended is a serious charge and the likelihood of getting caught is very high. A conviction for driving on a suspended license in New York can have a serious long-term impact on one’s life, including the ability to drive, obtain insurance, get a job, and more, in addition to the risk of jail time.