MTV-43-07-00009-P Evidentiary Rules for Traffic Violations Bureau Hearings

10/24/07 N.Y. St. Reg. MTV-43-07-00009-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 43

October 24, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF MOTOR VEHICLES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. MTV-43-07-00009-P

Evidentiary Rules for Traffic Violations Bureau Hearings

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

Proposed action:

Amendment of section 124.5(b)(2) of Title 15 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 215(a), 225(1), (3) and 227(1)

Subject:

Evidentiary rules for Traffic Violations Bureau hearings.

Purpose:

To preclude the need for testimony upon the introduction of certain business records in Traffic Violations Bureau hearings.

Text of proposed rule:

Paragraph (2) of subdivision (b) of section 124.5 is amended to read as follows:

(2) evidence which, for constitutional reasons, would not be admissible if the case were tried in the court which has concurrent jurisdiction with the bureau over such case, provided however, the provisions of this paragraph shall not apply to business records admissible under Civil Practice Law and Rules section 4518 in a proceeding in which such rule applies;

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

Carrie L. Stone, Counsel's Office, Department of Motor Vehicles, Six Empire State Plaza, Swan St. Bldg., Rm. 526, Albany, NY 12228, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Ida L. Traschen, First Assistant Counsel, Department of Motor Vehicles, Empire State Plaza, Swan St. Bldg., Rm. 526, Albany, NY 12228, [phone], e-mail: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Vehicle and Traffic Law 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. VTL section 225(1) and (3) authorizes the Commissioner to promulgate regulations relative to the adjudication of traffic infractions in Traffic Violations Bureaus. VTL 227(1) authorizes the Commissioner to promulgate regulations in relation to the conduct of hearings in Traffic Violations Bureaus.

2. Legislative objectives: The Legislature, when creating the Traffic Violations Bureaus in Article 2-A of the Vehicle and Traffic Law, provided for the adjudication of non-misdemeanor/felony traffic offenses in an efficient and fair manner in order to relieve the burden on the State's criminal courts. The Legislature recognized that to enhance the efficiencies of administrative hearings, such hearings would not be subject to the Civil Practice Law and Rules that govern non-criminal proceedings. This proposed regulation accords with the legislative objective of establishing administrative hearings to process such less serious traffic offenses in an efficient and fair manner.

3. Needs and benefits: This regulation is necessary to address the potential impact upon DMV's Traffic Violations Bureaus due to the decisions rendered in Crawford v. Washington, 124 S. Ct 1354(2004) and People v. Pacer, 6 NY3d 504 (2006). In Crawford, the United States Supreme Court, relying on the Confrontation Clause of the U.S. Constitution, held that testimonial statements not previously subject to cross-examination are inadmissible against a criminal defendant. In Pacer, the New York State Court of Appeals, following the Crawford decision, held that a specific business record produced by DMV was testimonial in nature and, therefore, not admissible in a criminal trial without the testimony of the individual who prepared such record, i.e., the defendant had the right to confront the individual who created the record.

Neither the U.S. Supreme Court nor the New York State Court of Appeals has ruled that Crawford and Pacer apply to administrative hearings. In fact, these Courts specifically invoke the constitutional protections afforded criminal defendants. Accordingly, amendment of the subject rule is not in conflict with either of these decisions, but rather is necessary to address the concerns raised in Crawford and Pacer, without undermining the purpose of the TVB system.

The TVB system was established to relieve overburdened criminal courts in New York City, Rochester, Buffalo and part of Suffolk County by adjudicating non-criminal traffic offenses in administrative hearings. TVB hearings are designed to provide an efficient and effective means of adjudicating such offenses. The hearings are not subject to the Civil Practice Law and Rules or the Criminal Procedure Law, pursuant to 15 NYCRR Part 123.1. Supporting depositions are not authorized and motion practice is not permitted. Hearsay evidence is admissible. Thus, the rules governing TVB hearings are vastly different than those applicable to criminal trials precisely because TVBs are designed for the expeditious adjudication of traffic tickets.

The implications presented by Crawford and Pacer for the adjudication of traffic tickets is best explained by way of example. Annually, TVBs adjudicate approximately 1,600 tickets involving overweight truck violations. At such hearings, the police officer presents evidence that the truck was overweight and introduces two business records: one, the Certificate of Inspection prepared by the NYC Department of Consumer Affairs that certifies the tape measure used by the officer, and two, the Axle-Load Scale Report Test prepared by the NYS Department of Agriculture and Markets that certifies the accuracy of the scales used to weigh the truck. These documents are arguably testimonial in nature, i.e., they are prepared by these two agencies for the purpose of a hearing or trial. If an employee of these agencies were required to testify at every TVB hearing involving an overweight truck offense in order to give the motorist the opportunity to cross-examine such employee, the hearings would become lengthy and unnecessarily complicated. More significantly, since hundreds of these documents are prepared in the normal course of business, there would be little value to cross-examining such employees. It is highly unlikely that such employee would recall the details relative to any particular record that he or she prepared. Thus, requiring such employees to be witnesses would frustrate the intent of the entire TVB process — the fair and speedy adjudication of traffic summons outside the criminal courts — and would provide no real benefit to the motorist.

It is critical to note that the Administrative Law Judge is always required to assess the credibility of evidence and he or she would still be required to do so in these overweight cases. The amendment would not prohibit a truck driver or trucking company from calling a State or NYC agency employee to testify at a TVB hearing; it simply prevents an agency employee from being required to testify. Instructively, the scores of Article 78 proceedings brought against DMV involving TVB adjudication of overweight cases have not raised the issue of the validity of the two certification documents discussed above, nor have past petitioners raised the issue of the necessity of testimony by those individuals who prepared the subject business records. The regulation in its current form, however, leaves open the possibility that future challenges might be based on those issues.

Thus, this regulatory amendment is necessary to preserve the underlying purpose of the administrative hearing process.

4. Costs: There are no costs to consumers, state agencies or to local governments.

5. Local government mandates: The proposal does not impose any mandates on local governments.

6. Paperwork: The proposal does not impose any additional paper requirements on the Department or affected entities.

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: Originally, the Department contemplated repealing Part 124.5(b)(2) in its entirety. Upon further review, the Department determined that this more narrowly crafted version relating to the admissibility of business records was sufficient. The New York State Motor Truck Association was contacted about this proposed amendment and the Association expressed concern about its members' ability to call the appropriate State or City agency employee to testify at a TVB hearing if necessary. The Association's concerns were addressed in the proposal and they were satisfied with the response.

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: 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 JIS is not submitted because this rule will have no adverse impact on job creation or job development in New York State.