PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 3.2 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a) and 501(2)(c)
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:
A2 Restriction.
Purpose:
Imposes an A2 restriction on problem drivers.
Text of emergency rule:
Subdivision (c) of section 3.2 is amended by adding a new paragraph (4) to read as follows:
(4) A2-Problem driver restriction. The operation of a motor vehicle shall be subject to the driving restrictions set forth in section 135.9(b) and the conditions set forth in section 136.4(b) of this Title. As part of this restriction, the commissioner may require a person assigned the problem driver restriction to install an ignition interlock device in any motor vehicle that may be operated with a Class D license or permit and that is owned or operated by such person. The ignition interlock requirement will be noted on an attachment to the driver’s license or permit held by such person. Such attachment must be carried at all times with the driver license or permit.
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-41-12-00016-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, (518) 474-0871, email: heidi.bazicki@dmv.ny.gov
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.
