The criminal charge of Aggravated Unlicensed Operation is usually a surprise for most people. It is a result of having an underlying problem with your driving license or privilege that you are probably unaware exists. Many people who move (change apartments/houses/roommates) frequently may lose or misplace their mail. If the DMV has sent you notice of an unpaid fine or an outstanding ticket this will trigger a suspension of your privilege to drive in New York State.
If you are stopped for a speeding ticket, moving violation, or equipment violation the officer will run a check of your license. If your license is suspended, revoked, or showing outstanding unaddressed problems he may write one and/or two tickets for the following charges: AUO 3rd (Aggravated Unlicensed Operation in the Third Degree) in Violation of Vehicle and Traffic Law Section 511 (1) (a), a class A misdemeanor (a crime), and Unlicensed Operator in Violation of Vehicle and Traffic Law Section 509, which is merely a Traffic Violation. Understanding the fundamental differences between these two charges is crucial to your defense.
The expression “the proof is in the pudding” has been around for hundreds of years. It is a metaphor that means “only believe things that can be proven.” Juries should never make assumptions or believe what they are told without something more. That something more is making the facts apply to a clearly defined law, and set of rules.
Every criminal charge has things (called elements) to be proven. The jury acts as a “fact finder” in this role. They are given the law and the rules of proof to be applied to these set of facts by the Judge.
What the Judge must supply to the Jury is a set or sets of instructions. A determination of Guilty or Not Guilty of a criminal charge hinges on the Jury’s understanding and application of the Jury Instructions for that specific charge.
Various criminal charges have different sets of instructions that the Jury must follow. The criminal charge of Aggravated Unlicensed Operation of a Motor Vehicle in the 3rd Degree, a Class A Misdemeanor has a mental state of knowing included within the jury instruction.
The Jury Instruction is as follows:
In order for you (the Jury) to find the defendant (the accused) guilty of this crime, the People (the Prosecution/the Government) are required to prove, from all the evidence in the case beyond a reasonable doubt, each of the following two elements:
1. That on or about (date), in the county of (county), the defendant operated a motor vehicle on a public highway; and
2. That the defendant did so while knowing or having reason to know that his/her license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked, or otherwise withdrawn by the commissioner.
Therefore, if you find that the People (the Prosecution/the Government) have proven beyond a reasonable doubt both of these elements, you must find the defendant guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.
On the other hand, if you find that the People (the Prosecution/the Government) have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.
The crucial element that the Prosecutor must prove is that you had knowledge that your license or privilege was suspended, revoked, or withdrawn.
The key question for any AUO 3rd case is usually:
Did you know or have a reason to know you were driving without a license or privilege?
In contrast to the AUO 3rd and it’s mental state is the traffic violation of Unlicensed Operator Section 509 which merely requires that you drove (operated) on a suspended license. This is with or without knowledge of the suspension. If you drove and your license was suspended, revoked, or you lost your privilege you are legally guilty of Unlicensed Operation which carries a small fine ($40 to $80) and a mandatory New York State Surcharge. Compare this to the potential penalties for an AUO 3rd which carries a fine range of $200 to $500, a mandatory New York State Surcharge, and jail time of up to 30 days (although jail is an unlikely sentence for most offenders).
In order to demonstrate your knowledge in an AUO 3rd case there are various ways that the prosecution can prove their case which are all fact dependent. In one scenario, if you lost your New York driving privileges or your license was taken by a Judge at a DMV hearing or in Court it will be hard to argue that you did not know you did not have a license or permission to drive a car.
On the other hand, if there is proof (you changed addresses, you had mail problems, you complied with all outstanding fines) that you never received any notice (a letter) from the Court or the New York DMV of a license suspension due to an unpaid ticket, unpaid fine, or a failure to pay a reactivation fee then the Jury could see that as reasonable doubt of your knowledge concerning your lack of a legal driving privilege. The seminal case addressing the NOTICE requirement of a AUO charge is People v. Pacer, (2006 NY Slip Op 02291).
That argument (of lack of NOTICE), ie. you had no good reason to know, may be accepted by a Jury as “common sense” doubt of your lack of knowing or of having reason to know of your license suspension.
Ultimately the proof in every case is dependent upon what can be shown to the Jury. Criminal defense attorneys not only work with the facts that are visible, but seek out the invisible but discoverable facts that can help a client’s case. The goal is to show that the facts presented by the prosecution are unclear, conflicting, and do not prove the elements of the crime beyond a reasonable doubt. Juries need to be shown common sense reasons to find doubt within the Government’s proof. After all, remember that it is always the Government’s burden in every criminal case, not yours, to prove every element of your legal guilt to the standard of beyond a reasonable doubt.
