MTV-04-16-00005-P Safety Hearings

1/27/16 N.Y. St. Reg. MTV-04-16-00005-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 4

January 27, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF MOTOR VEHICLES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. MTV-04-16-00005-P

Safety Hearings

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to amend section 127.6 of Title 15 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 215(a), 303(f), 398-f, 415(a), 510(3) and 1194(2)(c)

Subject:

Safety hearings.

Purpose:

Conforms standard of proof to Court of Appeals decision and DMV practice.

Text of proposed rule:

Subdivision (b) of section 127.6 is amended to read as follows:

(b) Rules governing the admissibility of evidence in a court of law are not applicable to hearings held by the department. Evidence which would not be admissible in a court, such as hearsay, is admissible in a departmental hearing. [However, a decision by a hearing officer] The standard of proof at a hearing shall be [based upon substantial] the preponderance of the evidence.

Text of proposed rule and any required statements and analyses may be obtained from:

Heidi Bazicki, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Ida L. Traschen, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

This proposed consensus rule conforms the Commissioner’s regulations to the Department of Motor Vehicles’ long-standing practice of using the “preponderance of the evidence” as the standard of proof in the Department’s safety hearings. A safety hearing refers to a hearing to investigate a fatal accident, a chemical test refusal hearing, or a hearing to determine whether a regulated party, such as an inspection station or a repair shop, has violated the law. While the current version of 15 N.Y.C.R.R. 127(6) provides that decisions at safety hearings may be based upon “substantial evidence,” the Department has consistently instructed and trained its safety hearing officers to make such determinations based upon a preponderance of the evidence. Similarly, the Department’s written hearing officer manual instructs safety hearing officers to determine matters based upon a preponderance of the evidence. In addition, in Miller v DeBuono, 90 NY2d 733, the Court of Appeals held that the preponderance of the evidence was the appropriate standard of proof at an administrative hearing.

Since this rulemaking reflects current Department practice and reflects the holding of the Court of Appeals, it is appropriately submitted as a consensus rule.

Job Impact Statement

A Job Impact Statement is not submitted with this rule because it will not have an adverse impact on job creation or development.