PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 136.1, 136.4 and 136.5 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)
Subject:
Relicensing after revocation.
Purpose:
To clarify and strengthen criteria relative to relicensing after revocation.
Substance of proposed rule (Full text is posted at the following State website:www.dmv.ny.gov):
The amendments to Part 136 of the Commissioner’s Regulations clarify and strengthen the criteria relative to relicensing after revocation. The following is a summary of the key amendments:
Section 136.4(b)(3) is amended to establish criteria for relicensure where the applicant’s permit or license with a problem driver restriction has been revoked.
Section 136.4(e) and section 136.5(d) are amended to provide that if an application is denied under section 136.4(a), (b) or (c), the Commissioner may consider unusual, extenuating or compelling circumstances as a basis to deviate from the general policy to deny an application under such section and the Commissioner may impose the problem driver restriction as a condition of approval of the application.
Section 136.5(a)(1) is amended to include a finding under section 1194-a of the VTL, refusal to submit to a chemical test in relation to VTL section 1192-a(zero tolerance), as an “alcohol –or drug-related conviction or incident.” This is consistent with the current definition of an alcohol –or drug-related conviction or incident,” which includes both a chemical test refusal under VTL section 1194 and a finding of a violation of VTL section 1192-a, “zero tolerance.”
Section 136.5(a)(1) is also amended to clarify that where a refusal arises out of the same incident resulting in a conviction of a violation of VTL section 1192, such finding shall not be counted as a separate “alcohol –or drug-related conviction or incident.”
Section 136.5(a)(4) is amended to provide that the Commissioner shall review an applicant’s entire driving record between the date of the revocable offense and the date the application is reviewed by the Commissioner, not the date of the application. Incidents and convictions may occur between the date of the application and the date such application is actually reviewed. Thus, it makes sense to review the driving record by looking back from the latest possible date.
Section 136.5(b)(3) and (4) are amended to provide that the extended waiting periods set forth in such paragraphs shall be extended for an additional five or two years, respectively, if there is evidence of driving during the waiting period.
A new subdivision (7) is added to section 136.5(b) to provide for the denial of an application where the applicant has been convicted of certain alcohol-related offenses with a nexus to a fatal accident. Section 136.5(d) is amended to provide that where an application is approved due to unusual, extenuating and compelling circumstances, the Commissioner may impose the problem driver restriction.
Finally, section 136.5(e) is amended to provide that if there are two alcohol or drug- related driving convictions or incidents on an applicant’s driving record, the consideration of an application for relicensing shall be held in abeyance if the applicant has one or more tickets pending, and if the pending ticket or tickets, if disposed of as a conviction of the original charge, would result in the denial of the application. This would prevent the Commissioner from approving the application of a potentially high risk driver.
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, (518) 474-0871, email: heidi.bazicki@dmv.ny.gov
Data, views or arguments may be submitted to:
Ida L. Traschen, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228, (518) 474-0871, email: ida.traschen@dmv.ny.gov
Public comment will be received until:
45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. Statutory authority: Vehicle and Traffic Law (VTL) section 215(a) provides that the Commissioner of Motor Vehicles (Commissioner) may enact rules and regulations that regulate and control the exercise of the powers of the Department of Motor Vehicles (Department). VTL 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: On September 25, 2012, the Department of Motor Vehicles adopted emergency regulations regarding Part 136 of Title 15 of New York State Codes, Rules & Regulations (Part 136), Relicensing After Revocation. The regulations were subsequently amended and adopted as final on May 1, 2013.
In accordance with the objective of protecting the motoring public, this proposal further 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 expands the use of problem driver restriction, which limits the driving activities of the motorist and, if appropriate, requires 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.
The Legislature has granted the Commissioner significant authority to establish standards for relicensing after revocation, in order to ensure that high risk motorists are not allowed to operate on our State’s highways. This proposed rulemaking both clarifies and expands the scope of the Commissioner’s authority in relation to the relicensing process.
3. Needs and benefits: On September 25, 2012, the Department of Motor Vehicles adopted emergency regulations regarding Part 136. The regulations were subsequently amended and adopted as final on May 1, 2013. The purpose of those amendments was to deny relicensure to applicants with multiple alcohol or drug-related driving incidents or convictions and serious driving offenses. This proposed rulemaking builds upon the 2012 and 2013 amendments by clarifying certain provisions and enhancing the Department’s tools for keeping dangerous drivers off of New York State highways.
A person whose driver’s license is revoked must apply to the Department for relicensure. Such person’s driving record is subject to a review pursuant to Part 136. The Department reviews the applicant’s entire driving history in order to assess his or her risk to the motoring public. Certain applicants who are approved are subject to the problem driver restriction, as set forth in Part 3.2(c)(4) of Title 15 of New York State Codes, Rules & Regulations which limits the licensee’s scope of operation and may require the installation of an ignition interlock device in all motor vehicles owned or operated by such licensee.
This proposed rulemaking makes several substantive changes to Part 136. First, section 136.4(b)(3) is amended to establish criteria for relicensure where the applicant’s permit or license with a problem driver restriction has been revoked. Specifically, if a license with a problem driver restriction is revoked, the Commissioner shall deny the application for at least five years. After such waiting period, if the application is approved, the Commissioner shall impose the problem driver restriction for a period of five years and may require the applicant to install an ignition interlock device in all motor vehicles he or she owns or operates for a period of two to five years. Second, section 136.4(e) and section 136.5(d) are amended to provide that if an application is denied under section 136.4(a), (b) or (c), the Commissioner may consider unusual, extenuating or compelling circumstances as a basis to deviate from the general policy to deny an application under such section and the Commissioner may impose the problem driver restriction as a condition of approval of the application. Third, section 136.5(a)(1) is amended to include a finding under section 1194-a of the VTL, refusal to submit to a chemical test in relation to VTL section 1192-a(zero tolerance), as an “alcohol –or drug-related conviction or incident.” This is consistent with the current definition of an alcohol –or drug-related conviction or incident,” which includes both a chemical test refusal under VTL section 1194 and a finding of a violation of VTL section 1192-a, “zero tolerance.” Fourth, such section is also amended to clarify that where a refusal arises out of the same incident resulting in a conviction of a violation of VTL section 1192, such finding shall not be counted as a separate “alcohol –or drug-related conviction or incident.” Fifth, section 136.5(a)(4) is amended to provide that the Commissioner shall review an applicant’s entire driving record between the date of the revocable offense and the date the application is reviewed by the Commissioner, not the date of the application. Incidents and convictions may occur between the date of the application and the date such application is actually reviewed. Thus, it makes sense to review the driving record by looking back from the latest possible date. Sixth, section 136.5(b)(3) and (4) are amended to provide that the extended waiting periods set forth in such paragraphs shall be extended for an additional period of two years or five years, depending on whether the revocation was based on an alcohol-related conviction, if there is evidence of driving during the waiting period. Seventh, a new subdivision (7) is added to section 136.5(b) to provide for the denial of an application where the applicant has been convicted of certain alcohol-related offenses with a nexus to a fatal accident. Eighth, section 136.5(d) is amended to provide that where an application is approved due to unusual, extenuating and compelling circumstances, the Commissioner may impose the problem driver restriction. Finally, section 136.5(e) is amended to provide that if there are two alcohol or drug- related driving convictions or incidents on an applicant’s driving record, the consideration of an application for relicensing shall be held in abeyance if the applicant has one or more tickets pending where the pending ticket or tickets, if disposed of as a conviction of the original charge, would result in the denial of the application. This would prevent the Commissioner from approving the application of a potentially high risk driver.
This proposed rulemaking proposes two non-substantive revisions. First, a new subdivision (c) is added to section 136.1 and section 136.5(e) is amended to clarify that the provisions of Part 136 apply to an application for a license or restoration of a privilege, e.g., by an out- of- state licensee. Second, section 136.4(a)(3) is amended to correct an improper cross reference.
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 the agency or to local governments.
c. The information, including the source(s) of such information and the methodologies upon which the cost analysis is based: N/A.
5. Local government mandates: There are no local government mandates.
6. Paperwork: There are no paperwork requirements.
7. Duplication: This proposed rulemaking 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 clarify and enhance Part 136. This proposed rulemaking represents a balanced approach to strengthen the Department’s efforts to keep dangerous drivers off of the State’s highways. A no action alternative was not considered.
9. Federal standards: The proposed rulemaking does not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance schedule: The Department and its regulated parties will be able to achieve compliance with the proposed rulemaking upon its Notice of Adoption in the State Register.
Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
A regulatory flexibility analysis for small business and local governments, a rural area flexibility analysis, and a job impact statement are not required for this rulemaking proposal because it will not adversely affect small businesses, local governments, rural areas, or jobs.
This proposal sets forth criteria for relicensing after revocation. Due to its narrow focus, this rule will not impose an adverse economic impact on reporting, record keeping, or other compliance requirements on small businesses in rural or urban areas or on employment opportunities. No local government activities are involved.
