NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. MTV-41-12-00012-ERP
Filing No. 189
Filing Date. Feb. 22, 2013
Effective Date. Feb. 22, 2013
Drinking Driver Program
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Amendment of sections 134.7, 134.10 and 134.11 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a), 1196(5) 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:
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 safety and general welfare of the motoring public. This regulation would provide that the completion of the Drinking Driver Program (DDP) would not serve to terminate any suspension or revocation order if the individual has been convicted of any provision of Vehicle and Traffic Law (VTL) section 1192 or has found to have consumed alcohol under the age of 21 (known as the “Zero Tolerance Law”) in violation of VTL section 1192-a, unless the individual has only one alcohol violation on his or her driving record. Most individuals would have to serve the full period of suspension or revocation, and persons whose licenses are revoked and have three or more alcohol- or drug-related offenses on their records would apply to the Commissioner, pursuant to 15 NYCRR Part 134, for a new license. These individuals would be subject to a full review of their driving records to determine whether they pose a danger to the motoring public. In addition, persons would not be eligible for a conditional license if such persons have, within the preceding 25 years, three or more alcohol- or drug-related offenses on their record. By further screening motorists whose licenses have been revoked, the Department will be significantly enhancing highway safety in this State.
Subject:
Drinking Driver Program.
Purpose:
Restrict conditional license eligibility and require persons who complete Drinking Driver Program to serve the full period of suspension or revocation.
Text of emergency/revised rule:
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, 4, or 4-a of section 1192 of such law.
Subparagraph (i) of paragraph (11) of subdivision (a) of section 134.7 is amended to read as follows:
(i) The person has three or more alcohol-or drug-related driving convictions or incidents within the last [ten] twenty-five years. For the purposes of this paragraph, a conviction for a violation of section 1192 of the Vehicle and Traffic Law, and/or a finding of a violation of section 1192-a of such law and/or a finding of refusal to submit to a chemical test under section 1194 of such law arising out of the same incident shall only be counted as one conviction or incident. The date of the violation or incident resulting in a conviction or a finding as described herein shall be used to determine whether three or more convictions or incidents occurred within a [10] 25 year period.
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), or if such person would not otherwise be eligible for enrollment in the program pursuant to section 1196(4) of such law, or if the person has two or more alcohol- or drug-related driving convictions or incidents within the 25 year look back period from the date of the violation which resulted in enrollment in the program. For the purposes of this subdivision, the 25 year look back period means the period commencing upon the date that is 25 years before the date of the violation that resulted in enrollment in the program and ending on and including the date of such violation.
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, provided however, no such suspension or revocation shall be terminated prior to the expiration of the term of suspension or revocation if the applicant for the unconditional license has two or more alcohol- or drug-related driving convictions or incidents within the preceding 25 years. For the purposes of this section, the preceding 25 years means the period commencing upon the date that is 25 years before the date of the violation that resulted in enrollment in the program and ending on and including the date of such violation. 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.
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on October 10, 2012, I.D. No. MTV-41-12-00012-EP. The emergency rule will expire May 22, 2013.
Emergency rule compared with proposed rule:
Substantial revisions were made in sections 134.10(b) and 134.11.
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
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:
30 days after publication of this notice.
Revised 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. VTL section 1196(5) authorizes the Commissioner, in his or her discretion, to determine that the completion of the Drinking Driver Program (DDP) shall not serve to terminate a suspension or revocation arising from an alcohol- or drug-related offense. VTL section 1196(7)(a) authorizes the Commissioner to establish criteria for the issuance of a conditional license.
2. Legislative objectives: Section 1196(5) of the VTL authorizes the Commissioner, in his or her discretion, to determine that the completion of the DDP shall not serve to terminate a suspension or revocation order arising from an alcohol- or drug-related offense.
In accordance with the objective of enhancing highway safety, this regulation, as amended, would provide that the completion of the DDP would not serve to terminate any period of suspension or revocation if the individual has, two or more times within the preceding 25 years, been convicted of violating any provision of VTL section 1192 or has been found to have consumed alcohol under the age of 21 (known as the “Zero Tolerance Law”) in violation of VTL section 1192-a. Such persons would have to serve the full period of suspension or revocation and, consistent with current procedure, would apply to the Commissioner, pursuant to 15 NYCRR Part 136, for a new license. Such persons would be subject to a full review of their driving record to determine whether their license should be restored.
VTL section 1196(7)(a) authorizes the Commissioner to issue a conditional license in his or her discretion. In accordance with the legislative objective of issuing a conditional license only to persons who do not pose a highway safety risk, this proposed rule narrows the pool of persons who are eligible for a conditional license.
3. Needs and benefits: The amendments to section 134.10(b) and section 134.11 would provide that the completion of the DDP would not serve to terminate any suspension or revocation order if the individual has, within the preceding 25 years, been convicted of any provision of VTL section 1192 or has been found to have violated the Zero Tolerance Law.
The current regulation provides that when a person completes the DDP, with certain exceptions, such completion serves to terminate the suspension or revocation arising out of the alcohol- or drug-related offense. These offenders can have their full licenses restored in as few as seven weeks, the duration of the DDP course. This is not a significant hardship to many individuals, particularly those who are eligible for a conditional license, which enables them to drive to work, to an accredited school, to medical to appointments, and to day care. (VTL section 1196(7)(a)). By requiring multiple offenders to serve the full period of suspension or revocation, the consequences of committing these serious offenses will be consistently applied.
This proposal will offer a second highway safety benefit: persons whose licenses are revoked and who have two or more alcohol- or drug-related offenses on their record will have to reapply to the Department of Motor Vehicles for a new license. They will be subject to a full record review pursuant to 15 NYCRR Part 136. Currently, in most cases, if a person completes the DDP, he or she does not apply for relicensure through the Department. In addition, upon completion of the record review, the Department will, when appropriate, impose the “A2 Problem Driver Restriction,” which restricts a driver’s privileges and requires such person to install an ignition interlock device in motor vehicles she or he owns or operates.
Approximately 25,000 drivers enroll in DDP each year, so this proposal would have a significant beneficial impact on highway safety in New York State.
The amendment to section 134.7(a)(11) further promotes highway safety by strengthening the criteria for conditional license eligibility. Upon relicensing, drivers whose licenses were revoked for an alcohol- or drug-related conviction or incident are issued a conditional license for a period of time prior to having their full driving privileges restored. Currently, persons with three or more alcohol- or drug-related convictions or incidents within the last 10 years are ineligible for a conditional license. This proposal extends that period so that persons with three or more alcohol- or drug-related convictions or incidents within the last 25 years will not be eligible for even a conditional license.
The amendment to section 134.7(a)(8) ensures that persons who commit an alcohol- or drug-related offense in a commercial motor vehicle will not be eligible for a conditional license. This rule is consistent with current procedures, which prohibits the issuance of a conditional license if the offense was committed in a commercial motor vehicle.
In response to comments on the proposed rule, the Commissioner has made one change to sections of Part 134. The scope of the 25 year look back period has been revised in sections 134.10(b) and 134.11 to make clear that the violation that resulted in enrollment in the DDP is included in such period.
4. Costs: There are no costs associated with this proposal to the State or local governments. Applicants for relicensure, who have two or more alcohol- or drug-related incidents on their driving record, will be required to pay the $100 application fee (VTL section 503(2)(h)).
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.
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 assessed whether the proposed rule should apply to all drivers with multiple offenses. In the interest of highway safety, the Department concluded that all multiple offenders should be required to serve the full period of suspension or revocation. 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: Compliance is immediate.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
A Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not attached because changes made to this rule do not necessitate revision to the previously published Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
Assessment of Public Comment
Comment: Several commenters state that the regulations are unduly harsh and do not warrant an emergency rulemaking.
Response: Driving while intoxicated continues to be a serious highway safety concern that requires strong and immediate action. Every year, more than 300 people are killed and over 6,000 are injured on New York’s highways as the direct result of alcohol-related crashes. In 2010, 29% of fatal crashes were alcohol-related. Most telling is the increase in the number of crashes involving individuals with three or more alcohol-related convictions. In 2010, 28% of the alcohol-related crashes that resulted in injuries involved a driver with three or more alcohol-related convictions. Approximately, 17,500 drivers who had three or more such convictions were involved in crashes resulting in death or injury.
The data is compelling that recidivist DWI offenders pose a significant risk to the motoring public. Immediate action was necessary to prevent additional deaths and injuries to innocent motorists. The Commissioner of Motor Vehicles, in a rational exercise of discretion, adopted emergency regulations that will deny relicensure to persistently dangerous offenders who pose the highest risk to the general population.
Comment: The New York State Defenders Association states that the regulation is not clear about how to calculate what constitutes convictions or incidents within 25 years preceding the date of the revocable offense, the look back period referenced in amendments to both Section 136.5 and Part 134.
Response: Section 136.5 and Part 134 have been revised to make clear that the 25 year look back period includes the offense that led to the license revocation that is the basis for the application for relicensing.
