Many times at the New York Criminal Defense Firm of Tilem & Campbell we are contacted by individuals who have been charged with Aggravated Unlicensed Operator (VTL § 511) resulting from the suspension or revocation of their New York State driver’s license or the suspension or revocation of their privilege to drive in New York if they are an out-of-state resident. This charge is not simply a traffic violation but it is a serious criminal matter that could result in a misdemeanor conviction.

While I will not discuss the details of the Aggravated Unlicensed Operator charge in this blog, I will discuss a key element of the charge that must be attacked in order to defeat the charge. (It should be noted however that if the defendant clears up the underlying suspensions that resulted in the Aggravated Unlicensed Operator charge most, if not all, prosecutors will agree to reduce the charge to a non-criminal traffic violation. If however, the defendant has multiple Unlicensed charges, was intoxicated, injured someone or if some other aggravating factor is present, their might not be an offer and the case must be fought because a criminal record hangs in the balance.)

What is the key element to attack in an Aggravated Unlicensed Operator charge? It’s the know or having reason to know that your license was suspended or revoked element that must be attacked. In order to be convicted of Aggravated Unlicensed Operator, the People must prove that you knew or had reason to know that that your license was suspended or revoked. How can the People prove this? New York Vehicle and Traffic Law section 214 basically states that if the DMV produces an affidavit from an employee explaining the procedures DMV follows for mailing suspension or revocation notices and if electronic copies of such notices are presented in court, there is a statutory presumption that such notice was mailed.

However, all VTL § 214 establishes is a presumption that the suspension or revocation notice was mailed. The prosecutor has a much harder burden to prove that the defendant actually received such notice. Since the United States Supreme Court holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004], an affidavit such as the one described in VTL § 214 cannot be introduced into evidence by the People to prove defendant’s knowledge that his license had been revoked. To do so violates the defendant’s constitutional right to confront the witnesses against him. People v. Pacer, N.Y.3d 504, 847 N.E.2d 1149 (2006).

In Pacer, the New York Court of Appeals noted that the affidavit prepared by the Department of Motor Vehicle employee was critical to the People’s case but without that employee being actually present and subject to cross-examination the defendant had no means of cross-examining her on a critical element of the charge. For example, the defendant had no chance to question the DMV employee about whether the DMV ever made mistakes with their mailings or whether the mailing was returned to DMV undeliverable. Also, another key point in this case was the fact that the mailing in this case was alleged to have taken place 16 years earlier yet the affidavit prepared for court was prepared by a DMV employee who did not work for DMV back then and had no idea about DMV procedures for mailing notices back then.

A defendant however, must specifically raise a Crawford objection to the introduction of a DMV affidavit without a DMV employee present to cross-examine. (People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] [“defendant’s failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error].

If a lawyer fails to raise the objection, your right to confront the DMV employee might be forever lost. As a result treat the charge of Aggravated Unlicensed Operation of a Vehicle with the seriousness that it deserves. Hire a New York criminal defense lawyer experienced in handling these types of cases. If you or a loved one is charged with Aggravated Unlicensed Operation contact one of the lawyers at Tilem & Campbell

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