This section examines what happens to a driver’s license after a conviction for a Drug Crime, and what can be done about it.
In the first installment of this series on Restricted Licenses, we saw that in Drunk Driving Cases, the action taken by the Secretary of State against a driver’s license is mandatory, and cannot be appealed. When Drug Crimes are involved, things aren’t so bleak. Sometimes it’s quite possible to avoid any license consequences altogether. In many cases involving a first-time offender, a “deferral” or “under-advisement” deal can be worked out which avoids an actual conviction for the offense, and therefore there are no consequences to a driving record. When that is not possible, even though the Court must impose some suspension of driving privileges, it can be modified, and some sort of restricted license is almost always available, although not necessarily immediately. In the end, it’s up to the Judge.
The most common drug crimes are Possession charges. Marijuana Possession is a misdemeanor, and Possession of all Other Drugs is a felony. Like Drunk Driving charges, penalties and license sanctions increase depending on whether the person is charged as first or second (or subsequent) time offender.
Other, less common Drug Crimes involve Possession with Intent to Deliver, and Delivery or Manufacture. These offenses, like simple Possession offenses, carry mandatory license sanctions. This means that after a conviction, whether by guilty plea or trial, the Judge must suspend the driver’s license. In first offense cases, the suspension is for 6 months, and in second-offense cases, the mandatory suspension is for 1 year.
With Drug Crimes, it is the Court, and not the Secretary of State, that imposes the driver’s license suspension or restriction. Exactly what the Court does, and is required to do, is mandated by state law. Most Judges in the Tri-County area tend to be understanding of a person’s need to drive, and are usually more lenient than not in granting Restricted Driving Privileges. The point here, though, is that the Court has discretion to order some sort of restricted driving privileges in Drug Cases.
To see how this works, let’s use a fairly common First Offense Possession of Marijuana charge. Let’s assume that a person with no prior Drug Crime record is arrested for Possession of Marijuana.
A first offense Possession of Marijuana conviction requires that the driver’s license be suspended for six (6) months, with a restricted license being allowed after the first thirty (30) days.
As it turns out, the most common outcome in a case like this involves a plea deal which keeps the whole case from going on the driver’s record under a provision in the law known as “section 7411.” “Section 7411” is available only if a person has no prior Drug crime on their record. If that deal is worked out, then the driver will not have any license sanctions placed against him or her, because the “7411” deal puts the whole case “under advisement,” meaning that if the person completes a term of probation with no problems, then no conviction is placed upon their record. It’s sort of like the whole thing simply goes away. This is obviously good for more than driver’s licenses; it allows a person to not have to report this case on a job application because it doesn’t go on their record.
If a person is not eligible for (perhaps they’ve already had a Drug Crime), or is otherwise denied that “section 7411” deal, then the Court must impose the mandatory license sanction, which for a first offense (the person with a prior 7411 deferral still maintains the status of a first-time offender) means a six (6) month suspension, with no driving allowed for the first thirty (30) days, after which the Court can, if it chooses, grant a restricted license for the remaining five (5) months.
The key thing here is that the Court decides what will happen after that first 30 days. The Court has the power and right to decide that no restricted license should be granted, and that the driver is simply suspended for the whole 6 months. Likewise, the Court can keep the license suspended for any number of months beyond the required first month, up to all 6. In other words, the Judge can decide to keep the driver’s license suspended for 2 months (or 3, or 4, or 5), and then allow a restricted license to be granted.
What’s more, the Court does not have to decide whether to grant any restricted license at the time it suspends it, which is at the time of sentencing. In other words, when the Court imposes the mandatory 6 month suspension of the driver’s license, it can decide the and there if and when a restricted license will be ordered, or it can require the driver to come back to Court, at a different time, and after the fist 30 days have elapsed, to request a restricted license for the balance of the remaining 5 months. Even then, the Court can decide to deny the request completely and keep the license suspended for all of the remaining 5 months, or it can order that a restricted license be granted for any part of those 5 months.
Most, but by far not all of the time, in a case like our First Offense Possession of Marijuana example, the Court will, at the time of sentencing, when it must suspend the license, order that a restricted license be issued after the first and mandatory 30 days of no driving have passed.
A person with a second drug offense, must, by law, have his or her license suspended for 1 year. There can be no driving of any kind for the first 60 days, and a restricted license can be granted for any part, or all, of the remaining 10 months.
In some cases, and more often than not in Felony Drug cases (whether involving mere possession or delivery), the Court requires that a driver re-appear before it after the initial period of suspension has passed and request a restricted license. This is done by filing a document called a Motion with the Court, which schedules the matter for a Hearing and provides that the Prosecutor’s Office be notified of the hearing date so that it may voice any opinion it has as to when or whether or not to grant any driving privileges. When all parties are present, the Judge will hear arguments and take testimony, and then decide.
It is a good idea to have a lawyer prepare and file the Motion and appear at the Hearing. Any mistake in the filing of the Motion, or the serving of it and the required Notice of Hearing, or in the scheduling of the Hearing, can cause the whole issue to have to be passed over until such mistakes are corrected. Beyond that, a lawyer familiar with the Court will have a good idea of how to best proceed before a particular Judge, and can give an honest assessment of what’s likely to happen when such an appeal is filed.