MTV-41-12-00013-E Problem Driver Restriction and Relicensing After Permanent Revocation

1/9/13 N.Y. St. Reg. MTV-41-12-00013-E

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 2

January 09, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF MOTOR VEHICLES

EMERGENCY RULE MAKING

 

I.D No. MTV-41-12-00013-E

Filing No. 1282

Filing Date. Dec. 24, 2012

Effective Date. Dec. 24, 2012

Problem Driver Restriction and Relicensing After Permanent Revocation

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

Action taken:

Amendment of sections 136.4, 136.5 and 136.10 of Title 15 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 215(a), 501(2)(c), 510(6), 1193(2)(b)(12), (c)(1) and 1194(2)(d)(1)

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

It is necessary to adopt this amendment on an emergency basis, to protect the health, safety and general welfare of the citizens of New York State, effective immediately upon filing with the Department of State.

This amendment is adopted as an emergency measure to protect the motoring public from drivers who may pose a highway safety risk. The proposed rule would permit the Commissioner to assign the A2-Problem Driver restriction on the driver’s license or permit of an applicant for relicensure who is deemed a problem driver by the Commissioner. The problem driver restriction will limit the driving activities of the motorist and, if appropriate, require such motorist to install an ignition interlock device in all motor vehicles owned or operated by the motorist. The regulation is vital to protect the public from recidivist drunk drivers who pose a real threat to highway safety. This regulation is necessary to protect the safety and welfare of the motoring public.

Subject:

Problem Driver Restriction and Relicensing after Permanent Revocation.

Purpose:

To establish strict criteria for relicensing after permanent revocation.

Text of emergency rule:

Subdivision (b) of section 136.4 is amended to read as follows:

(b)(1) An [applicant] application for a driver's license [shall] may be denied if a review of the entire driving history provides evidence that the applicant constitutes a problem driver, as defined in section 136.1(b)(1) of this Part. If an application is denied pursuant to this paragraph, no application shall be considered for a minimum of one year from the date of denial. In lieu of such denial, the applicant may be issued a license or permit with a problem driver restriction, as set forth in section 3.2(c)(4) of this Chapter and paragraph (2) of this subdivision.

(2) Upon the approval of an application for relicensing of a person who is deemed a problem driver under this subdivision, the commissioner may impose a problem driver restriction on such person’s license or permit, as set forth in section 3.2(c)(4) of this Title. As a component of this restriction, the commissioner may require such person to install an ignition interlock device in any motor vehicle owned or operated by such person. The ignition interlock requirement will be noted on the attachment to the driver license or permit held by such person. Such attachment must be carried at all times with the driver license or permit.

(3) Revocation of license or permit with problem driver restriction. A license or permit that contains a problem driver restriction shall be revoked (i) upon the holder’s conviction of a traffic violation or combination of violations, committed while such restriction is in effect, which the Commissioner deems serious in nature; or (ii) for the holder’s failure to install and maintain an ignition interlock device in motor vehicles owned or operated by the holder, when required to do so under such restriction. The attachment, provided for in paragraph (2) of this subdivision, shall set forth the violation or violations that will result in such a revocation. A revocation for any of the above reasons shall be issued without a hearing based upon receipt of a certificate or certificates of conviction. The commissioner may also revoke a license or permit with a problem driver restriction, without a hearing, upon receipt of a certificate of conviction that indicates that the applicant has driven in violation of the conditions of such restriction.

(4) Employer vehicle. A person required to operate a motor vehicle owned by such person’s employer in the course and scope of his or her employment may operate that vehicle without installation of an ignition interlock device only in the course and scope of such employment and only if such person carries in the motor vehicle written documentation indicating the employer has knowledge of the restriction imposed and has granted permission for the person to operate the employer’s vehicle without the device only for business purposes. Such documentation shall display the employer’s letterhead and have an authorized signature of the employer. A motor vehicle owned by a business entity that is wholly or partly owned or controlled by a person subject to the problem driver restriction is not a motor vehicle owned by the employer for purposes of the exemption provided in this paragraph and shall be deemed to be owned by the person subject to the problem driver restriction.

Section 136.5 is amended to read as follows:

136.5 [Miscellaneous grounds for denial.] Special rules for applicants with multiple alcohol- or drug-related driving convictions or incidents.

[(a) Notwithstanding any other provision of this Part, two convictions for driving while intoxicated, with personal injury involvement in each, regardless of the extent of such injury, shall result in a denial of an application.

(b) Notwithstanding any other provision of this Part, the Commissioner may deny an application where the revocation sought to be terminated was imposed as a result of a conviction for a violation of section 125.10, 125.12, 125.13, 125.14, 125.15, 125.20, 125.22, 125.25, 125.26 or 125.27 of the Penal Law arising out of the operation of a motor vehicle, or a conviction for a violation of section 1192 of the Vehicle and Traffic Law which resulted in a death or serious injury, as defined in section 10.00 of the Penal Law. The ground for such denial shall be set forth in writing and a copy shall be made available to the applicant.]

(a) For the purposes of this section:

(1) “Alcohol- or drug-related driving conviction or incident” means a conviction of a violation of section 1192 of the Vehicle and Traffic Law, a finding of a violation of section 1192-a of the Vehicle and Traffic Law, a conviction of an offense under the Penal Law for which a violation of section 1192 of the Vehicle and Traffic Law is an essential element, or a finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law, not arising out of the same incident.

(2) “Serious driving offense” means (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of two or more violations for which five or more points are assessed on a violator’s driving record pursuant to Section 131.3 of this subchapter; or (iv) 20 or more points from any violations.

(3) “Revocable offense” means the violation, incident or accident that results in the revocation of the person’s drivers license and which is the basis of the application for relicensing. Upon reviewing an application for relicensing, the Commissioner shall review the applicant’s entire driving record and evaluate any offense committed between the date of the revocable offense and the date of application as if it had been committed immediately prior to the date of the revocable offense. For purposes of this section, “date of the revocable offense” means the date of the earliest revocable offense that resulted in a license revocation for which the revocation has not been terminated by the Commissioner’s subsequent approval of an application for relicensing.

(b) Upon receipt of a person’s application for relicensing, the Commissioner shall conduct a lifetime review of such person’s driving record. If the record review shows that:

(1) the person has five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime, then the Commissioner shall deny the application.

(2) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense and, in addition, has one or more serious driving offenses within the 25 years preceding the date of the revocable offense, then the Commissioner shall deny the application.

(3) (i) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense but no serious driving offenses within the 25 years preceding the date of the revocable offense and (ii) the person is currently revoked for an alcohol- or drug-related driving conviction or incident, then the Commissioner shall deny the application for at least five years, after which time the person may submit an application for relicensing. After such waiting period, the Commissioner may in his or her discretion approve such application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person’s license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

(4) (i) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense but no serious driving offenses within the 25 years preceding the date of the revocable offense and (ii) the person is not currently revoked as the result of an alcohol- or drug-related driving conviction or incident, then the Commissioner shall deny the application for at least two years, after which time the person may submit an application for relicensing. After such waiting period, the Commissioner may in his or her discretion approve the application after the minimum statutory revocation period is served, provided that upon such approval, the Commissioner shall impose an A2 restriction, with no ignition interlock requirement, for a period of two years. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

(5) the person has two alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense, then the Commissioner may in his or her discretion approve the application after the minimum statutory revocation period is served.

(6) the person has been twice convicted of a violation of subdivision three, four or four-a of section 1192 of the Vehicle and Traffic Law or of driving while intoxicated or of driving while ability is impaired by the use of a drug or of driving while ability is impaired by the combined influence of drugs or of alcohol and any drug or drugs where physical injury, as defined in section 10.00 of the Penal Law, has resulted from such offense in each instance, then the Commissioner shall deny the application.

(c) The grounds for any denial shall be set forth in writing and a copy shall be made available to the person making the application for relicensing.

(d) While it is the Commissioner’s general policy to act on applications in accordance with this section, the Commissioner shall not be foreclosed from consideration of unusual, extenuating and compelling circumstances that may be presented for review and which may form a valid basis to deviate from the general policy, as set forth above, in the exercise of discretionary authority granted under section 510 of the Vehicle and Traffic Law. If an application is approved based upon the exercise of such discretionary authority, the reasons for approval shall be set forth in writing and recorded.

Section 136.10 is amended to read as follows:

136.10 Application for relicensing.

(a) Application by the holder of a post-revocation conditional license. Upon the termination of the period of probation set by the court, the holder of a post-revocation conditional license may apply to the Commissioner for restoration of a license or privilege to operate a motor vehicle. An application for licensure [shall] may be approved if the applicant demonstrates that he or she:

[(a)](1) has a valid post-revocation conditional license; and

[(b)](2) has demonstrated evidence of rehabilitation as required by this Part.

(b) Application after permanent revocation. The commissioner may waive the permanent revocation of a driver’s license, pursuant to Vehicle and Traffic Law section 1193(2)(b)(12)(b), only if the statutorily required waiting period of either five or eight years has expired since the imposition of the permanent revocation and, during such period, the applicant has not been found to have refused to submit to a chemical test pursuant to Vehicle and Traffic Law section 1194 and has not been convicted of any violation of section 1192 or section 511 of such law or a violation of the Penal Law for which a violation of any subdivision of such section 1192 is an essential element. In addition, the waiver shall be granted only if:

(1) The applicant presents proof of successful completion of a rehabilitation program approved by the commissioner within one year prior to the date of the application for the waiver; provided, however, if the applicant completed such program before such time, the applicant must present proof of completion of an alcohol and drug dependency assessment within one year of the date of application for the waiver; and

(2) The applicant submits to the commissioner a certificate of relief from civil disabilities or a certificate of good conduct pursuant to Article 23 of the Correction Law; and

(3) The application is not denied pursuant to section 136.4(b) or section 136.5 of this Part; and

(4) There are no incidents of driving during the period prior to the application for the waiver, as indicated by accidents, convictions or pending tickets. The consideration of an application for a waiver when the applicant has a pending ticket shall be held in abeyance until such ticket is disposed of by the court or tribunal.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. MTV-41-12-00013-EP, Issue of October 10, 2012. The emergency rule will expire February 21, 2013.

Text of 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]

Regulatory Impact Statement

1. Statutory authority: Vehicle and Traffic Law (VTL) section 215(a) provides that the Commissioner of Motor Vehicles may enact rules and regulations that regulate and control the exercise of the powers of the Department. VLT Section 501(2)(c) authorizes the Commissioner to provide for driver’s license restrictions based upon the types of vehicles or other factors deemed appropriate by the Commissioner. Section 510(6) of such law provides that where revocation is mandatory no new license shall be issued except in the discretion of the Commissioner. VTL section 1193(2)(b)(12) authorizes the Commissioner to waive the permanent revocation of a driver’s license, where such revocation arises out of multiple alcohol- or drug-related offenses, if the applicant for the waiver meets certain criteria. Section 1193(2)(c)(1) provides that where a license is revoked as the result of a mandatory revocation arising out of an alcohol- or drug-related offense, no new license shall be issued except in the discretion of the Commissioner. Section 1194(2)(d)(1) provides that where a license is revoked arising out of a chemical test refusal, no new license shall be issued except in the discretion of the Commissioner.

2. Legislative objectives: Chapter 732 of the Laws of 2006 added a new subparagraph twelve to paragraph (b) of subdivision two of section 1193 of the Vehicle and Traffic Law to provide for the permanent revocation of a driver’s license or privilege if the driver is convicted and/or adjudicated of multiple alcohol- or drug-related offenses within a specific time period. The law provides that the Commissioner may waive the permanent revocation after a minimum of five years (or eight years, depending on the number of prior offenses) if the driver meets certain criteria. The statute establishes specific criteria for waiver eligibility, but also provides that the Commissioner may refuse to restore a license if, on a case by case basis, the Commissioner determines that the applicant poses a risk to public safety. The proposed rule accords with these legislative objectives by identifying highway safety factors that would justify the denial of a waiver and by granting the Commissioner of Motor Vehicles broad discretion to determine whether a motorist should be relicensed after revocation. As noted above, three sections of the Vehicle and Traffic Law provide that no person shall be re-issued a license except in the Commissioner’s discretion.

In accordance with the objective of protecting the motoring public, this proposal strengthens the standards used to evaluate a motorist’s lifetime record, with a particular focus on alcohol- or drug-related convictions and incidents and serious driving offenses. The proposal is consistent with the current “problem driver” review conducted under Part 136, but specifies in detail the scope of such review. In addition, if such review concludes that the applicant is a problem driver, this proposal would permit the Commissioner to assign the A2-Problem Driver restriction on the driver’s license or permit. The problem driver restriction will limit the driving activities of the motorist and, if appropriate, require such motorist to install an ignition interlock device in all motor vehicles owned or operated by the motorist. This restriction strikes a balance between protecting the public and allowing the motorist to engage in certain essential activities involving his or her employment, medical care, child care and educational opportunities.

3. Needs and benefits: The amendments to section 3.2 and section 136.4 would create a new A2-Problem Driver-restriction that would limit the driving privileges of certain persons who are approved for relicensure after revocation but who may present highway safety concerns.

A person whose driver’s license is revoked must re-apply to the Department of Motor Vehicles for relicensure. Such person’s driving record is subject to a review pursuant to Part 136 of the Commissioner’s regulations. The Department reviews the applicant’s entire driving history in order to assess his or her risk to the motoring public. Under current regulations, an application will be denied, for example, if a motorist has numerous alcohol- or drug-related offenses with insufficient rehabilitative effort or if the applicant has 25 or more negative units on the driving record. In addition, an application may be denied if the motorist is deemed a “problem driver” as defined in section 136.1(b)(1) of this Part: that is, the motorist’s driving record indicates a “series of convictions, incidents and/or accidents or has a medical or mental condition, which in the judgment of the commissioner or his or her designated agent, upon review of the applicant's entire driving history, establishes that the person would be an unusual and immediate risk upon the highways.”

Although a person may have convictions and incidents on his or her driving record, such person may raise safety concerns without meriting denial of the application. In such cases, it would be appropriate to relicense the applicant but restrict his or her driving privileges. The amendments to section 3.2 and section 136.4 provide for a “problem driver” restriction that would restrict the person’s privileges to those currently allowed for the holder of a restricted use license. This restriction allows the person to drive only for particular activities, such as driving to and from work, doctor’s appointments, and classes at an accredited school or university. When appropriate, the Commissioner, as part of this restriction, would require the applicant to install an ignition interlock device in motor vehicles owned or operated by such person. The interlock device prevents a motorist from starting the vehicle if such motorist has consumed alcohol. The device is a useful tool in dealing with the recidivist drunk driver, as it prevents such driver from operating while intoxicated on the State’s highways.

The proposed amendments to section 136.5 would, consistent with the current regulation regarding “problem drivers,” establish specific rules for relicensure of applicants who have multiple alcohol- or drug-related convictions and incidents on their driving records. For example, the proposed rule provides that an application will be denied if the applicant has five or more such convictions or incidents on his or her entire record or if such person has three or four such convictions or incidents plus one or more serious driving offense within 25 years of the date of the revocable offense. If a person has three or four alcohol- or drug-related offenses within 25 years and no serious driving offense, such person’s application shall be denied and the person may re-apply after five years. At such time the Commissioner may approve the application, impose the A2 Problem Driver restriction and require the installation of an ignition interlock device in all motor vehicles owned or operated by the applicant. These proposals will provide a critical step in protecting the motoring public from recidivist alcohol- and drug-related offenders.

The proposed amendments to section 136.10 are also necessary to inform motorists whose licenses have been permanently revoked, pursuant to Vehicle and Traffic Law section 1193(2)(b)(12), about the criteria to obtain a waiver of such permanent revocation. This regulation is also necessary to ensure that drivers who pose a risk to the motoring public do not have their licenses restored.

Chapter 732 of the Laws of 2006 provided for the permanent revocation of a driver’s license or privilege if the driver is convicted and/or adjudicated of multiple alcohol- or drug-related offenses within a specified time period. The law provides that the Commissioner may waive the permanent revocation after five years (or after 8 years if the applicant for the waiver has more prior offenses) if the driver meets certain criteria.

The proposed rule, in part, tracks statutory language by requiring the applicant for the waiver to produce proof of rehabilitation and a certificate of relief from disabilities or certificate of good conduct. In addition, pursuant to the statute, the applicant must, during the period of revocation, have not been found to have refused a chemical test, or been convicted of aggravated unlicensed operation or certain alcohol- or drug-related offenses set forth in the Vehicle and Traffic Law and the Penal Law.

In terms of the discretionary review criteria, the Commissioner may deny an application for a waiver if the applicant is deemed a problem driver, as defined in section 136.4(b) or had any incidents of driving during the revocation period. As part of the review of the applicant’s entire driving record, the Department shall also consider: the number of Penal Law or Vehicle and Traffic Law convictions that are misdemeanors or felonies offenses involving the operation of a motor vehicle; fatal accidents; if the applicant accumulated 20 or more points within 25 years; or if the person had two five-point convictions within 25 years.

The Commissioner shall impose the A2-Problem Driver restriction for applicants approved for the waiver and for drivers whose licenses are restored but whom the Commissioner determines should have limited driving privileges. In cases where the license was revoked for an alcohol- or drug-related offense, the driver must install an ignition interlock device in motor vehicles that he or she owns or operates.

By denying an application for a waiver based upon these criteria and imposing the Problem Driver restriction, the Department would take a major step to ensure that high-risk drivers do not operate on our roads and highways, an important safety benefit for the general motoring public.

This regulation is both necessary and beneficial to the general motoring public because it will restrict the driving privileges of persons who may pose a significant highway safety threat.

4. Costs: a. Cost to regulated parties and customers: Motorists with a history of driving while intoxicated who qualify for a license with the problem driver restriction will be required to install and maintain an ignition interlock device in vehicles that they own or operate. There are various models of available interlock devices. The average cost of installation and monthly maintenance is slightly over $1,000 a year.

b: Costs to the agency and local governments: There is no cost to local governments. There will be minimal costs to the Department in developing the problem driver restriction. The Department must design and produce an attachment that will designate the limitations of the problem driver restriction and, when appropriate, indicate the ignition interlock requirement.

5. Local government mandates: There are no local government mandates.

6. Paperwork: The Department must design and produce an attachment that will designate the limitations of the problem driver restriction and, when appropriate, indicate the ignition interlock requirement.

7. Duplication: This proposal does not duplicate, overlap or conflict with any relevant rule or legal requirement of the State and federal governments.

8. Alternatives: The Department deliberated extensively about how to restrict the driving privileges of persons who are eligible for relicensure but who might continue to present highway safety concerns. Imposing a new problem driver restriction was deemed the most expeditious, effective and fair alternative. A no action alternative was not considered.

9. Federal standards: The proposal does not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: The Department would begin compliance immediately.

Regulatory Flexibility Analysis

A RFA is not attached because this rule will not have a disproportionate impact on small businesses or local governments, nor will it impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments.

Rural Area Flexibility Analysis

A RAFA is not attached because this rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.

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.