PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 134 and 136 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a), 510(6)(a), 1192(10)(a) and (d), 1193(2)(c)(1), 1196(4) and (7)(a)
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
Precludes multiple DWI offenders from obtaining a conditional license and from being prematurely re-licensed under certain circumstances.
Subject:
Drinking driver program and conditional license eligibility and re-licensure requirements.
Purpose:
To set forth drinking driver program and conditional license eligibility criteria for multiple DWI offenders and establish re-licensure requirements for such offenders.
Text of emergency rule:
Section 134.2 is amended to read as follows:
134.2 Persons eligible for program. Any person who is convicted of a violation of any subdivision of section 1192 of the Vehicle and Traffic Law, or is found to have been operating a motor vehicle after having consumed alcohol in violation of section 1192-a of this article, or of an alcohol or drug related traffic offense in another state, shall be eligible for enrollment in an alcohol and drug rehabilitation program unless: such person has participated in a program established pursuant to article 31 of the Vehicle and Traffic Law within the five years immediately preceding the date of commission of the alcohol or drug-related offense or such person has been convicted of a violation of any subdivision of section 1192 of such law [other than a violation committed prior to November 1, 1988] during the five years immediately preceding commission of an alcohol or drug-related offense; with respect to persons convicted of a violation of section 1192 of the Vehicle and Traffic Law, is prohibited from enrolling in a program by the judge who imposes sentence upon the conviction; or the commissioner is prohibited from issuing such new license to a person because of two convictions of a violation of section 1192 of the Vehicle and Traffic Law where physical injury, as defined in section 10.00 of the Penal Law, has resulted in both instances. Notwithstanding the provisions of this section, a person shall be eligible for enrollment in the alcohol and drug rehabilitation program if such person is sentenced pursuant to the plea bargaining provisions set forth in Vehicle and Traffic Law section 1192(10)(a)(ii) and 1192(10)(d).
Paragraph (8) of subdivision (a) of section 134.7 is amended to read as follows:
(8) The person has been penalized under section 1193(1)(d)(1) of the Vehicle and Traffic Law for any violation of subdivision 2, 2-a, 3, [or] 4, or 4-a of [such] section 1192 of such law.
Subdivision (a) of section 134.7 is amended by adding a new paragraph (13) to read as follows:
(13) The person, during the five years preceding the commission of the alcohol or drug-related offense or a finding of a violation of section 1192-a of the Vehicle and Traffic Law, participated in the alcohol and drug rehabilitation program or has been convicted of a violation of any subdivision of section 1192 of such law.
Subdivision (b) of section 134.10 is amended to read as follows:
(b) Results of satisfactory completion of a rehabilitation program. Upon satisfactory completion of a program, any unexpired suspension or revocation which was issued as a result of the conviction for which the person was eligible for enrollment in the program may be terminated by the commissioner unless the termination is prohibited under section 1193 of the Vehicle and Traffic Law or this Subchapter or if the termination is based upon enrollment in the program pursuant to the plea bargaining provisions of Vehicle and Traffic Law section 1192(10)(a)(ii) and 1192(10)(d), if such person would not otherwise be eligible for enrollment in the program pursuant to section 1196(4) of such law.
Section 134.11 is amended to read as follows:
134.11 Issuance of unconditional driver's license. Satisfactory completion of a rehabilitation program or expiration of the term of suspension, whichever occurs first, will initiate the necessary action to provide for the termination of the suspension or revocation which was the basis for entry into the rehabilitation program. Upon a determination of satisfactory completion of the rehabilitation program or the term of suspension, and unless otherwise determined by the commissioner, as provided for in subdivision (b) of section 134.10 of this Part, a notice of termination of the suspension or revocation and an unconditional license will be issued. However, no such license will be issued until all civil penalties due the department are paid or if there are any outstanding suspensions, revocations, or bars against such license until such suspensions, revocations, or bars are satisfactorily disposed of by the applicant. Any conditional license which is still valid will be terminated concurrently with the return of the unconditional driver's license and must be returned to the department. A conditional license shall not be renewed more than one year after the issuance of the conditional license if a revocation is issued for a chemical test refusal and the holder of the conditional license has not paid the civil penalty required by section 1194 of the Vehicle and Traffic Law.
Subdivision (a) of Section 136.6 is amended to read as follows:
(a) There shall be assigned to each safety factor a negative unit as follows:
Safety Factor
Assigned Negative Units
Over one year to three years of application
Within one year of application
(1) for each reportable accident of record with a finding by the referee of gross negligence in the operation of a motor vehicle in a manner showing a reckless disregard for the life and property of others.
−5
−8
(2) for each reportable accident of record with conviction involvement or with a finding by the referee of a violation of the Vehicle and Traffic Law
−3
−4
(3) for the first and second speeding conviction of record*
−3
−4
(4) for the third and subsequent speeding conviction*
−5
−8
(5) for reckless driving
−5
−8
(6) for each conviction of record for leaving the scene of a personal injury accident of record
−8
−11
(7) for each alcohol related offense of record as follows:
(i) conviction for violation of subdivision (1) of section 1192 of the Vehicle and Traffic Law:
1st offense
−5
−8
2nd offense
−8
−11
3rd offense
−11
−14
(ii) conviction for violation of subdivision (2), (2-a), (3), [or] (4), or (4-a) of section 1192 of the Vehicle and Traffic Law:
1st offense
−8
−11
2nd or subsequent offense
−11
−14
(iii) chemical test refusal
6
−11
(8) for each conviction of homicide, criminally negligent homicide, or assault arising out of the operation of a motor vehicle
−11
−14
(9) (i) for each incident of driving during a period of alcohol-related license suspension or revocation
−10
−12
(ii) for each other incident of driving during a period of license suspension or revocation
−8
−10
(10) for each conviction or finding by the Commissioner's referee of a violation of section 392 of the Vehicle and Traffic Law
−3
−4
(11) for each other conviction of record for a moving violation
−2
−3
* For each speeding violation of 25 miles per hour or more over the posted speed limit, add one point.
Paragraph (2) of subdivision (d) of Section 136.6 is amended to read as follows:
(2) Where a first conviction of any subdivision [(2)] of section 1192 of the Vehicle and Traffic Law and a finding of a chemical test refusal arise out of the same incident, only one of these two safety factors having equal weight is considered in a review of the total record because these safety factors are not independent of each other.
Section 136.9 is amended to read as follows:
136.9 Effect of completion of the alcohol and drug rehabilitation program. The successful completion of the article 21 alcohol and drug rehabilitation program, where no intervening safety factors occurred between the date such person entered the program and the date the application for a license is made and with no subsequent incidents of operating a motor vehicle while under the influence of alcoholic beverages or drugs, shall be considered evidence of rehabilitative effort satisfactory for the purposes of this Part. Provided, however, if enrollment in the program based upon the plea bargaining provisions of Vehicle and Traffic Law section 1192(10)(a)(ii) and 1192(10)(d), and if such person would not otherwise have been eligible for enrollment in the program pursuant to section 1196(4) of such law, then completion of the program, may not, in the commissioner's discretion, be deemed evidence of rehabilitative effort.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire April 29, 2007.
Text of emergency rule and any required statements and analyses may be obtained from:
Michele L. Welch, Counsel's Office, Department of Motor Vehicles, Empire State Plaza, Swan St. Bldg., Rm. 526, Albany, NY 12228, (518) 474-0871, e-mail: mwelc@dmv.state.ny.us
Regulatory Impact Statement
1. Statutory authority: Section 215(a) of the Vehicle and Traffic Law authorizes the Commissioner to enact regulations to control the exercise of the powers of the Department of Motor Vehicles. Section 510(6)(a) of such law provides that where a license revocation is mandatory, no new license shall be issued except in the discretion of the Commissioner. Section 1193(2)(c)(1) of such law provides that where a license is revoked pursuant to an alcohol-related conviction, no new license shall be issued after the expiration of the minimum revocation period, except in the discretion of the Commissioner. Section 1192(10)(a) and (d) of such law relate to plea bargaining provisions in driving while intoxicated prosecutions and the requirement to attend the Drinking Driver Program. Section 1196(4) of such law relates to eligibility to enroll in the Drinking Driver Program. Section 1196(5) of such law provides that completion of the Drinking Driver Program may, in the discretion of the Commissioner, serve to terminate the suspension or revocation arising out of the alcohol-related conviction. Section 1196(7)(a) of such law relates to conditional license eligibility for those persons convicted of alcohol-related offenses.
2. Legislative objectives: This proposal is consistent with legislative objectives that grant the Commissioner of Motor Vehicles broad discretion in establishing criteria for the restoration of driver's licenses and the re-licensing of individuals whose licenses have been suspended or revoked for alcohol-related offenses. It is also in accord with legislative objectives that afford the Commissioner discretion in determining eligibility for a conditional license, a limited use license issued to persons convicted of alcohol-related offenses. Currently, a person convicted of alcohol-related offenses may enroll in the Drinking Driver Program (DDP), as set forth in section 1196 of the Vehicle and Traffic Law, if such person has not, within the preceding five years, been convicted of an alcohol related offense or participated in the DDP. Under Chapter 732 of the Laws of 2006, section 1192(10) of such law is amended to provide that under certain plea bargaining provisions involving alcohol-related offenses, the court must require the defendant to enroll in the DDP even if such person is not otherwise eligible. Under current law, when a person successfully completes DDP, the suspension or revocation arising out of the alcohol conviction is terminated. Under this proposal, DDP completion would not serve to terminate the suspension or revocation for individuals who are not otherwise DDP eligible. This accords with the Legislature's intent, and DMV's current policy, that multiple alcohol offenders must show proof of rehabilitation in order to have their licenses restored.
3. Needs and benefits: These regulations are necessary to put the public on notice that multiple alcohol-related offenders who are not otherwise eligible for the DDP, pursuant to Vehicle and Traffic Law section 1196(4), shall not have their licenses restored upon completion of DDP, if enrollment for DDP is mandated by a court pursuant to the plea bargaining provision in Vehicle and Traffic Law section 1192(10). Currently, a person convicted of alcohol-related offenses may enroll in the Drinking Driver Program (DDP), as set forth in section 1196 of the Vehicle and Traffic Law, if such person has not, within the preceding five years, been convicted of an alcohol related offense or participated in the DDP. Under Chapter 732 of the Laws of 2006, section 1192(10) of such law is amended to provide that under certain plea bargaining provisions involving alcohol-related offenses, the court must require the defendant to enroll in the DDP even if such person is not otherwise eligible under section 1196(4). Under current law, when a person successfully completes DDP, the suspension or revocation arising out of the alcohol conviction is terminated. Under this proposal, DDP completion would not serve to terminate the suspension or revocation for individuals who are not otherwise DDP eligible. In addition, under this proposal, and consistent with current law, a person not eligible for the DDP would not be eligible for a conditional license.
This regulation is important because it provides, in accordance with current DMV policies and reapplication procedures, as set forth in Parts 134 and 136, that a recidivist DWI offender who is not eligible for the DDP must show proof of rehabilitation from an approved treatment provider prior to re-licensure. It would be contrary to public safety if a multiple DWI offender who completed DDP twice within five years is permitted to be re-licensed without having been evaluated by a treatment provider with expertise in alcohol counseling. In addition, under Part 136, applicants for re-licensure are denied a license if they have 25 or more negative units accumulated within a specified time period. Negative units are assigned for various violations of the Vehicle and Traffic Law. This amendment adds the two new alcohol offenses, Vehicle and Traffic Law 1192(2-a) and (4-a), to the offenses that trigger negative units. Thus, these amendments are necessary to protect the public from drivers who pose a significant highway risk.
4. Costs: There are no costs to the public, local government or to this agency. The Department already has staff and procedures in place to process multiple offenders applying for re-licensure.
Source: DMV's Driver Improvement Bureau.
5. Local government mandates: This proposal does not impose any mandates upon local governments.
6. Paperwork: This proposal does not impose any additional paperwork requirements on the Department.
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: No significant alternatives were considered. 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: Immediate with adoption of this rule.
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 Rural Area Flexibility Analysis is not submitted with this proposal because it will have no adverse or disproportionate impact on the rural areas of the State.
Job Impact Statement
A Job Impact Statement is not submitted with this statement because it will not have an adverse impact on job creation or development in New York State.
