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Since December 2019, New York’s Green Light Law has been in effect. Under the NY Green Light Law, any New York State Resident over the age of 16 can apply for a non-commercial driver’s license or permit regardless of citizenship or lawful status in the United States. Thus, individuals who previously were unable to obtain a New York driver’s license because they didn’t have immigration papers are able to apply for a New York State Driver’s License or Learning Permit. Because this license is a New York State document, it cannot be used for federal purposes – i.e., air travel.
We recently had a client contact our office regarding applying for a New York Driver’s License under the NY Green Light Law. What complicated the situation is that our client had a previous New York Driver’s License application denied many years ago due to lack of immigration status. Here is everything we learned during our research.
Spoiler: Client’s New York Driver’s License was approved under NY Green Light Law. Despite a hold by DFI. And a Previous Application Denial.
Can I Be Prosecuted For Previously Filing a False DMV Application?
Many individuals who are now approved to get driver’s licenses under NY Green Light Law previously applied for licenses based on fraudulent documents or Social Security Numbers and had their applications denied.
Previous Application Was Over 5 Years Ago
Under both New York and Federal Law, the statute of limitations for a felony is five (5) years. The statute of limitations is the period of time the Government has after the commission of a crime to file criminal charges against someone. Generally, the statute of limitations keeps running unless it is tolled for some reason. Examples of tolling include being incarcerated on another case, leaving the jurisdiction, or inability to be located despite the Government’s best efforts.
So if it’s been over five (5) years since your application for a New York Driver’s License, it is probably too late for the Government to file charges against you either at the New York State or federal level due to the statute of limitations. However, you should be mindful of any tolling that may apply to the five years. Furthermore, if you have successfully obtained a driver’s license based on fraudulent documents and have continuously used it, the statute of limitations doesn’t start until the license is surrendered/no longer valid.
Previous Application Was Within the Past 5 Years
If your previous application was within the past five (5) years, or you suspect that some of that time period can be tolled, it is wise for you to consult an attorney about what you should do about your application. Since applying within the five year period can subject you to prosecution, the safest course of action may be for you to wait until enough time has passed. So the Government can’t file any criminal charges against you due to the Statute of Limitations expiring.
Should I Disclose a Prior Application That Was Denied?
There is a question on the DMV application about whether you applied under NY Green Light Law or not, as to whether you had previously applied for a New York Driver’s License. While your inclination may be to check off “No” to any previous applications, doing so poses a great risk. New York State DMV conducts an independent check of prior applications by name match, Social Security match as well as facial recognition. Being untruthful on your application may result in more headaches down the road.
False Information on DMV Application is a New York Crime
Additionally, it is a misdemeanor under New York Vehicle and Traffic Law Section 392 to provide false or misleading information on any DMV document. Thus, under Vehicle and Traffic Law Section 392, you can be exposed up to 1 year in prison for false information on a DMV application. Furthermore, you may be committing the crime of Offering a False Instrument for Filing in the Second Degree, codified in New York Penal Law Section 175.30.
Elements of New York Offering a False Instrument for Filing in the Second Degree
Under New York Penal Law Section 175.30, a person is guilty of Offering a False Instrument for Filing in the Second Degree when:
- Knowing that a written instrument contains a false statement or false information,
- S/he offers or presents it to a public office or public servant
- With the knowledge or belief that it will be filed with, registered or recorded in, or otherwise become a part of the records of such public office or public servant.
If you are unsure how to answer the question about a prior DMV application, please contact us.
Can New York DMV Report My Immigration Status To Department of Homeland Security (DHS) or to Immigration and Customs Enforcement (ICE)?
No, New York DMV cannot report you or your immigration status to any immigration authorities – i.e. ICE or DHS. It is a Class “E” Felony for anyone with access to DMV information, including applications under NY Green Light Law, to provide this information to any federal agency in charge of immigration. This provision went into effect in April 2020.
Can Someone File a Freedom of Information Act (“FOIL”) Request for My DMV Records and Immigration Status?
Yes, a FOIL request can be filed for an individual’s DMV records. However, under NY Green Light Law, any information regarding your immigration status, country of birth, or any other identifying immigration information, as well as your photograph, will be redacted and removed from the FOIL request.
Can a Federal Judge Order DMV to Disclosure of My Immigration Status To Immigration Authorities?
The way the NY Green Light Law is written, only a district court judge can order disclosure of New York DMV records. There are two types of federal court judges: magistrate judges and district court judges. The difference between the two is explained here. In practice, Magistrate Judges are the ones who deal with signing subpoenas and search warrant applications, as the District Court Judges have full case dockets. By specifying that only a district court judge can order disclosure of DMV records, NY Green Light Law adds a layer of protection. It is rare that District Court judges actually deal with subpoenas.
Why Was My Application Flagged By DMV Division of Field Investigation (DFI)?
It is impossible to tell why, after going to the DMV to get your driver’s license, you were told that your application was flagged by the DMV Division of Field Investigation. Sometimes, it is because your prior application has been located, but you checked off that you’ve never applied for a driver’s license. Facial recognition software may have also located your prior licenses that are now suspended or revoked by the New York Department of Motor Vehicles.
Do not panic. Your attorney can call the DMV and try to obtain more information about the hold on your file. You can then make a decision whether you’d like to come in and meet with DFI in an effort to get the hold on your file removed.
Contact Top Rated New York Criminal Defense & Immigration Attorneys
For application information, please is it the NY Green Light Law website. If you are being criminally prosecuted for this, please contact us for a consultation regarding your criminal case. We are unable to assist with DMV inquiries or resolving DMV issues. For immigration questions, you can contact Immigration Attorney Extraordinaire Sharon KhunKhun.