How to beat and defend a charge of AUO (Aggravated Unlicensed Operation) In the Third Degree

New York is a state that criminalizes driving with a suspended license. Other states have moved away from this practice, but not New York. Vehicle and Traffic § Law 511(1)(a) provides that a person is guilty of a misdemeanor punishable by a term of imprisonment up to 30 days and/or a fine between $250 and $500 for operating a motor vehicle upon a public highway while knowing or having reason to know that such person's license to operate such motor vehicle issued by the commissioner is suspended, revoked, or otherwise withdrawn.

How does a District Attorney prove knowledge?

The part of that law that gives the District Attorney offices around the state difficulty is the knowledge element. The prosecution has to prove beyond a reasonable doubt that the defendant knew or had a reason to know that their license was suspended or revoked.



This can be easy if the driver makes a statement saying that they knew their license was suspended. But if the driver doesn't talk, it can be hard for the prosecution to prove what a driver knew, or should have known. One way the prosecution can prove that the driver should have known the license was suspended is by having a DMV employee testify about mailing practices of driver suspension notices. 

This can be highlighted by a case decided this month at the Appellate Term in Brooklyn. 

In People v Pilatasig, 2021 NY Slip Op 50125(U), decided February 19, 2021, the driver was charged with, among other things, AUO in the third degree. The driver apparently did not make a statement to the police that he knew his license was suspended or revoked. At the trial court level, the People successfully admitted into evidence an affidavit of an employee at the DMV regarding the DMV's mailing practices. The memorandum opinion does not divulge why the government provided this affidavit in support of its case, but we have a hunch.

DMV suspension notices are mailed by the DMV from its offices in Albany. As a result, DMV employees from local offices do not have knowledge of the office procedures or the mailing practices suspension notices of the Albany office. Although it's a misdemeanor, VTL 511(1)(a) is still a relatively minor crime. It would not justify the time and expense having a witness travel from Albany to testify in a case in NYC or Long Island.

And as the Appellate Term correctly pointed out, the People cannot admit an affidavit of an employee of the DMV as a business record because it is hearsay and violates the US Constitution.

The contents of an affidavit of mailing regarding the DMV's mailing practices of suspension notices, and whether those practices were followed in defendant's case, amounts to "a direct accusation of an essential element of the crime"; it is accusatory hearsay, and is not admissible as a business record (People v Pacer, 6 NY3d at 510). The Confrontation Clause requires that these matters be established by a witness amenable to cross-examination (see People v Pacer, 6 NY3d at 512). Pursuant to Crawford v Washington (541 US 36, 53-54 [2004]), such an affidavit is testimonial in nature and, therefore, cannot be admitted into evidence pursuant to Vehicle and Traffic Law § 214 without violating a defendant's Sixth Amendment right to confrontation (see People v Pacer, 6 NY3d at 509-510). Nevertheless, mailing of a suspension notice can be established by a witness's testimony, based on personal knowledge, of the DMV's mailing practices and procedures at the time the suspension notice is alleged to have been mailed because such testimony permits meaningful cross-examination as to the nature of those procedures and whether they were actually followed (see e.g. People v Francis, 114 AD3d 699, 700 [2014]). Here, the People's DMV witness provided no testimony regarding the DMV's standard office practices and procedures for mailing suspension notices. Consequently, the People failed to establish that defendant knew, or had reason to know, that his license had been suspended, and, thus, the evidence was legally insufficient to establish defendant's guilt, beyond a reasonable doubt, of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]).

The easiest way to beat an AUO charge in the third degree is to not make any statements to the police. If you tell the police that you knew your license was suspended, the crime basically proves itself. But if you don't make that statement, the District Attorney's office will have a hard time proving the knowledge element of the crime.