When governments started issuing driver's licenses, it became illegal to drive without them, and it remains illegal today. In New York State, unlicensed operation of a vehicle is a crime. But if a person's license has been suspended or revoked, it is an even more serious matter. Termed an aggravated unlicensed operation (AUO) charge, driving with a suspended or revoked license can be a misdemeanor or a felony depending on the person's driving history and the circumstances of the incident.
Aggravated Unlicensed Operation
It's easy to think about driving violations as simply tickets that might require the payment of a fine or, in a worst-case scenario, can raise insurance premiums. But under New York laws, any offenses that involve driving while under the influence of alcohol or drugs are in another category altogether.
A few are civil offenses, like the charge of violating the zero tolerance law that prohibits any alcohol use for a driver under 21. Another few are categorized as infractions, with a maximum jail sentence of 15 days, like a first-offense driving while ability impaired (DWAI) for alcohol. But most are either misdemeanor or felony crimes that will stay on a person's record and that could cause them to spend months or even years in jail. This includes all aggravated unlicensed operation charges.
While it is considered "unlicensed operation" to drive a motor vehicle in New York without a license, aggravated unlicensed operation involves additional factors. In order for a person to be charged for AUO, they must previously have had a driver's license that has been revoked or suspended. If the person has prior AUO or driving while impaired (DWI) offenses, or was driving under the influence of alcohol or drugs when stopped, the penalties increase.
Three Different Levels of AUO in New York
New York's Vehicle and Traffic Law Section 511 sets out three different levels of AUO offenses. From least serious to most serious, they are: third-degree, second-degree and first-degree AUO. Each level of AUO has its own elements and its own penalties.
Both third-degree and second-degree AUO are misdemeanors, a less serious crime with a maximum imprisonment penalty of one year in jail. First-degree AUO is a felony, defined as a crime that carries the possibility of imprisonment of over a year in jail.
Think of third-degree AUO as "simple" aggravated unlicensed operation. If a person has their driving privileges revoked or suspended for any reason, they can be convicted of third-degree AUO if they get behind the wheel in New York. The person can be charged with AUO if they knew or should have known that their license to drive was revoked or suspended. No other aggravating factors are necessary.
Aggravated unlicensed operation of a motor vehicle in the third degree is charged as a misdemeanor under New York law. That means that a conviction cannot send a person to jail for more than a year. In fact, the statute actually provides a much lower sentence: Under Vehicle and Traffic Law Section 511(1)(b), a conviction of this offense will result in a fine of at least $200, but not more then $500, and/or a term of imprisonment of no more than 30 days.
However, the fines go up if a heavy vehicle is involved. That is, if the person was driving a motor vehicle with a gross vehicle weight rating of more than 18,000 pounds, the fine must be between $500 and $1,500 and/or imprisonment of up to 30 days.
Aggravated unlicensed operation of a motor vehicle in the second degree is described in Vehicle and Traffic Law Section 511(2). In order to be convicted of second-degree AUO in New York, a person must have driven while their license was suspended or revoked in a manner that could be charged as third-degree AUO. In addition, the driver must have one of several aggravating factors. Any one of these factors is sufficient to bump up a third-degree AUO charge to a second-degree AUO charge:
- The person has a prior conviction for an AUO offense within the prior 18 months.
- The person lost their driving privileges because they refused to consent to a chemical test for alcohol or drugs under New York's implied consent laws (Vehicle and Traffic Law Section 1194).
- The person lost their driving privileges because of DWI-related offenses set out in Vehicle and Traffic Law Sections 1192 or 1193.
- The person lost their license for a suspension that occurred while they were awaiting prosecution on a drug- or alcohol-related charge.
- The person had three or more license suspensions for failure to answer, appear or pay a fine, as described in Vehicle and Traffic Law Sections 226(3) or 510(4a).
A conviction for AUO in the second degree is also a misdemeanor in New York. The penalties are usually a fine of at least $500, but not more than $1,000, imprisonment of between seven and 180 days, and/or a probationary period. If the person is currently on probation, the sentence can include an imprisonment period the length of that current probationary period. If the driver has multiple AUO convictions on their driving record, the fine they are assessed is not capped at $1,000.
The most serious type of aggravated unlicensed operation of a motor vehicle in New York is AUO in the first degree. This crime is charged as a class E felony. Usually, those charged with a first-degree AUO are driving with a suspended license or a revoked license while also under the influence of alcohol and/or drugs. That is, it is a first-degree AUO if a person commits a second-degree AUO while under the influence of alcohol or drugs or has a conditional license, allowing for only essential driving as part of the Impaired Driver Program in New York and drives under the influence of drugs or alcohol.
It is also a first-degree AUO if the driver commits a third-degree AUO while having at least 10 prior suspensions for failure to answer, appear or pay a fine, or while their license is permanently revoked related to a DUI.
In New York, aggravated unlicensed operation of a motor vehicle in the first degree is a class E felony. Anyone convicted of this crime must be sentenced to a fine of between $500 and $5,000 and a term of imprisonment.
Nonresident License Defense
A central element of the crime of aggravated unauthorized operation is the fact that the person is operating a motor vehicle without a license, that license having been revoked or suspended. It is obviously a defense to this charge if the New York driver's license of the person charged was not revoked or suspended. While in most cases, the arresting officer will have current information about the status of a New York driver's license, occasionally they may be in error. If this is the case, all the driver needs to do to beat this charge is produce evidence that their driving privileges were not suspended or revoked on the day of the incident.
What if the person operating the motor vehicle has a valid driver's license issued by a jurisdiction other than New York? That depends entirely on whether the person is a legal resident of New York. It is a defense to a charge of AUO that the person operating the motor vehicle had, at the time of the offense, a valid driver's license issued by a foreign country, state, territory or federal district.
But that defense only applies if the person was legally permitted to drive in New York using that license under Vehicle and Traffic Law Section 250. That statute provides that New York registration and licensing laws do not apply to anyone who is a nonresident of the state. Anyone who resides in New York and intends to make it their permanent abode is deemed to be a New York resident and must obtain a New York license within 30 days of their arrival. There is a presumption that anyone living in New York for 90 days or more is a resident of the state.
Lack of Awareness of Suspension
More than a few drivers attempt to defend themselves from charges of aggravated unlicensed operation by claiming that they had no idea their licenses had been revoked or suspended. This may be due to a missed notice or similar slip-up. However, this defense will not be effective because affirmative knowledge of revocation or suspension is not a prerequisite to an AUO charge.
Rather, the law specifies that it applies if the driver knows or "had reason to know" of the fact of the suspension or revocation. If the New York department of motor vehicles (DMV) sends a notice of suspension or revocation to the address on file for the driver, it constitutes having reason to know.
Facilitating Aggravated Unlicensed Operation
Anyone who helps another person commit an AUO by lending their car to a driver may also be charged under Section 511 of the Vehicle and Traffic Law. In order to be guilty of facilitating an aggravated unauthorized operation of a motor vehicle, the car owner must have knowledge of the revocation or suspension at the time they allowed the other person to use the vehicle. They must have either had actual knowledge or reason to know of the suspension or revocation.
Like the AUO charge itself, the facilitating charge has three degrees of culpability, third degree, second degree and first degree. A person can be charged with third-degree facilitating if they allow the driver to operate their vehicle on public roads or highways. A first offense is an infraction in New York, punishable by a fine of not less than $200 and not more than $500, and/or a term in jail not to exceed 15 days.
A person can be charged with facilitating aggravated unlicensed operation of a motor vehicle in the second degree if they commit the offense of facilitating AUO in the third degree and additional elements are found to exist, such as:
- The vehicle owner knows or has reason to know that the driver has three or more suspensions for failure to answer, appear or pay a fine, or
- The vehicle owner has at least two prior convictions for facilitating AUO in the prior five years.
Note that this charge specifically includes owners of vehicles for hire, like taxis, limousines, vans, tow trucks or buses.
Penalties for Facilitating AUO in New York
Anyone convicted faces a fine between $500 and $700 and/or imprisonment not to exceed 60 days. If the vehicle owner has been convicted twice in the past five years of this offense, the fine can be up to $1,000, and the term of imprisonment up to 180 days.
First-degree facilitation occurs when the vehicle owner lets a person drive knowing or having reason to know that the driver has at least 10 suspensions imposed for failure to answer, appear or pay a fine. This charge, which can apply to owners of vehicles for hire, is a Class E felony, punishable by a fine of between $1,000 and $5,000 and a prison sentence. The registration for the vehicle may also be revoked.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.