MTV-41-12-00013-ERP Problem Driver Restriction and Relicensing After Permanent Revocation

3/13/13 N.Y. St. Reg. MTV-41-12-00013-ERP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 11

March 13, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF MOTOR VEHICLES

NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. MTV-41-12-00013-ERP

Filing No. 190

Filing Date. Feb. 22, 2013

Effective Date. Feb. 22, 2013

Problem Driver Restriction and Relicensing After Permanent Revocation

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

Action Taken:

Amendment of sections 136.4, 136.5 and 136.10 of Title 15 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 215(a), 501(2)(c), 510(6), 1193(2)(b)(12), (c)(2)(1) and 1194(2)(d)(1)

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:

Problem Driver Restriction and Relicensing after Permanent Revocation.

Purpose:

To establish strict criteria for relicensing after permanent revocation.

Text of emergency/revised rule:

Paragraph (3) of subdivision (b) of section 136.1 is amended to read as follows:

(3) History of abuse of alcohol or drugs. A history of abuse of alcohol or drugs shall consist of a record of two or more incidents, within a [10] 25 year period, of operating a motor vehicle while under the influence of alcoholic beverages and/or drugs or of refusing to submit to a chemical test not arising out of the same incident, whether such incident was committed within or outside of this state.

Subdivision (b) of section 136.4 is amended and a new subdivision (b-1) is added to read as follows:

(b)(1) An [applicant] application for a driver's license [shall] may be denied if a review of the entire driving history provides evidence that the applicant constitutes a problem driver, as defined in section 136.1(b)(1) of this Part. If an application is denied pursuant to this paragraph, no application shall be considered for a minimum of one year from the date of denial. In lieu of such denial, the applicant may be issued a license or permit with a problem driver restriction, as set forth in section 3.2(c)(4) of this Chapter and paragraph (2) of this subdivision.

(2) Upon the approval of an application for relicensing of a person who is deemed a problem driver under this subdivision, the Commissioner may impose a problem driver restriction on such person’s license or permit, as set forth in section 3.2(c)(4) of this Title. As a component of this restriction, the Commissioner may require such person to install an ignition interlock device in any motor vehicle owned or operated by such person. The ignition interlock requirement will be noted on the attachment to the driver license or permit held by such person. Such attachment must be carried at all times with the driver license or permit.

(3) Revocation of license or permit with problem driver restriction. A license or permit that contains a problem driver restriction shall be revoked (i) upon the holder’s conviction of a traffic violation or combination of violations, committed while such restriction is in effect, which the Commissioner deems serious in nature; or (ii) for the holder’s failure to install and maintain an ignition interlock device in motor vehicles owned or operated by the holder, when required to do so under such restriction. The attachment, provided for in paragraph (2) of this subdivision, shall set forth the violation or violations that will result in such a revocation. A revocation for any of the above reasons shall be issued without a hearing based upon receipt of a certificate or certificates of conviction. The Commissioner may also revoke a license or permit with a problem driver restriction, without a hearing, upon receipt of a certificate of conviction that indicates that the applicant has driven in violation of the conditions of such restriction.

(4) Employer vehicle. A person required to operate a motor vehicle owned by such person’s employer in the course and scope of his or her employment may operate that vehicle without installation of an ignition interlock device only in the course and scope of such employment and only if such person carries in the motor vehicle written documentation indicating the employer has knowledge of the restriction imposed and has granted permission for the person to operate the employer’s vehicle without the device only for business purposes. Such documentation shall display the employer’s letterhead and have an authorized signature of the employer. A motor vehicle owned by a business entity that is wholly or partly owned or controlled by a person subject to the problem driver restriction is not a motor vehicle owned by the employer for purposes of the exemption provided in this paragraph and shall be deemed to be owned by the person subject to the problem driver restriction.

(b-1) An application for a driver’s license may be denied if the applicant has been convicted of a violation of section 125.10, 125.12, 125.13, 125.14, 125.15, 125.20, 125.22, 125.25, 125.26 or 125.27 of the Penal Law arising out of the operation of a motor vehicle, or if the applicant has been convicted of a violation of section 1192 of the Vehicle and Traffic Law where death or serious physical injury, as defined in section 10.00 of the Penal Law, has resulted from such offense.

Section 136.5 is amended to read as follows:

136.5 [Miscellaneous grounds for denial.] Special rules for applicants with multiple alcohol- or drug-related driving convictions or incidents.

[(a) Notwithstanding any other provision of this Part, two convictions for driving while intoxicated, with personal injury involvement in each, regardless of the extent of such injury, shall result in a denial of an application.

(b) Notwithstanding any other provision of this Part, the Commissioner may deny an application where the revocation sought to be terminated was imposed as a result of a conviction for a violation of section 125.10, 125.12, 125.13, 125.14, 125.15, 125.20, 125.22, 125.25, 125.26 or 125.27 of the Penal Law arising out of the operation of a motor vehicle, or a conviction for a violation of section 1192 of the Vehicle and Traffic Law which resulted in a death or serious injury, as defined in section 10.00 of the Penal Law. The ground for such denial shall be set forth in writing and a copy shall be made available to the applicant.]

(a) For the purposes of this section:

(1) “Alcohol- or drug-related driving conviction or incident” means any of the following, not arising out of the same incident: (i) a conviction of a violation of section 1192 of the Vehicle and Traffic Law; (ii) a finding of a violation of section 1192-a of the Vehicle and Traffic Law; provided, however, that no such finding shall be considered after the expiration of the retention period contained in paragraph (k) of subdivision 1 of section 201 of the Vehicle and Traffic Law; (iii) a conviction of an offense under the Penal Law for which a violation of section 1192 of the Vehicle and Traffic Law is an essential element; or (iv) a finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law.

(2) “Serious driving offense” means (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of two or more violations for which five or more points are assessed on a violator’s driving record pursuant to Section 131.3 of this subchapter; or (iv) 20 or more points from any violations.

(3) “25 year look back period” means the period commencing upon the date that is 25 years before the date of the revocable offense and ending on and including the date of the revocable offense.

(4) “Revocable offense” means the violation, incident or accident that results in the revocation of the person’s drivers license and which is the basis of the application for relicensing. Upon reviewing an application for relicensing, the Commissioner shall review the applicant’s entire driving record and evaluate any offense committed between the date of the revocable offense and the date of application as if it had been committed immediately prior to the date of the revocable offense. For purposes of this section, “date of the revocable offense” means the date of the earliest revocable offense that resulted in a license revocation for which the revocation has not been terminated by the Commissioner’s subsequent approval of an application for relicensing.

(b) Upon receipt of a person’s application for relicensing, the Commissioner shall conduct a lifetime review of such person’s driving record. If the record review shows that:

(1) the person has five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime, then the Commissioner shall deny the application.

(2) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the Commissioner shall deny the application.

(3)(i) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period and (ii) the person is currently revoked for an alcohol- or drug-related driving conviction or incident, then the Commissioner shall deny the application for at least five years, after which time the person may submit an application for relicensing. After such waiting period, the Commissioner may in his or her discretion approve such application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person’s license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

(4)(i) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period and (ii) the person is not currently revoked as the result of an alcohol- or drug-related driving conviction or incident, then the Commissioner shall deny the application for at least two years, after which time the person may submit an application for relicensing. After such waiting period, the Commissioner may in his or her discretion approve the application after the minimum statutory revocation period is served, provided that upon such approval, the Commissioner shall impose an A2 restriction, with no ignition interlock requirement, for a period of two years. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

(5) the person has two alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period, then the Commissioner may in his or her discretion approve the application after the minimum statutory revocation period is served.

(6) the person has been twice convicted of a violation of subdivision three, four or four-a of section 1192 of the Vehicle and Traffic Law or of driving while intoxicated or of driving while ability is impaired by the use of a drug or of driving while ability is impaired by the combined influence of drugs or of alcohol and any drug or drugs where physical injury, as defined in section 10.00 of the Penal Law, has resulted from such offense in each instance, then the Commissioner shall deny the application.

(c) The grounds for any denial shall be set forth in writing and a copy shall be made available to the person making the application for relicensing.

(d) While it is the Commissioner’s general policy to act on applications in accordance with this section, the Commissioner shall not be foreclosed from consideration of unusual, extenuating and compelling circumstances that may be presented for review and which may form a valid basis to deviate from the general policy, as set forth above, in the exercise of discretionary authority granted under sections 510 and 1193 of the Vehicle and Traffic Law. If an application is approved based upon the exercise of such discretionary authority, the reasons for approval shall be set forth in writing and recorded.

(e) If, after an application for relicensing is approved, the Commissioner receives information that indicates that such application should have been denied, the Commissioner shall rescind such approval and the license granted shall be revoked.

Section 136.10 is amended to read as follows:

136.10 Application for relicensing.

(a) Application by the holder of a post-revocation conditional license. Upon the termination of the period of probation set by the court, the holder of a post-revocation conditional license may apply to the Commissioner for restoration of a license or privilege to operate a motor vehicle. An application for licensure [shall] may be approved if the applicant demonstrates that he or she:

[(a)](1) has a valid post-revocation conditional license; and

[(b)](2) has demonstrated evidence of rehabilitation as required by this Part.

(b) Application after permanent revocation. The Commissioner may waive the permanent revocation of a driver’s license, pursuant to Vehicle and Traffic Law section 1193(2)(b)(12)(b) and (e), only if the statutorily required waiting period of either five or eight years has expired since the imposition of the permanent revocation and, during such period, the applicant has not been found to have refused to submit to a chemical test pursuant to Vehicle and Traffic Law section 1194 and has not been convicted of any violation of section 1192 or section 511 of such law or a violation of the Penal Law for which a violation of any subdivision of such section 1192 is an essential element. In addition, the waiver shall be granted only if:

(1) The applicant presents proof of successful completion of a rehabilitation program approved by the Commissioner within one year prior to the date of the application for the waiver; provided, however, if the applicant completed such program before such time, the applicant must present proof of completion of an alcohol and drug dependency assessment within one year of the date of application for the waiver; and

(2) The applicant submits to the Commissioner a certificate of relief from civil disabilities or a certificate of good conduct pursuant to Article 23 of the Correction Law; and

(3) The application is not denied pursuant to section 136.4 or section 136.5 of this Part; and

(4) There are no incidents of driving during the period prior to the application for the waiver, as indicated by accidents, convictions or pending tickets. The consideration of an application for a waiver when the applicant has a pending ticket shall be held in abeyance until such ticket is disposed of by the court or tribunal.

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-41-12-00013-EP. The emergency rule will expire May 22, 2013.

Emergency rule compared with proposed rule:

Substantial revisions were made in sections 136.4(b-1), 136.5(b), (e) and 136.1(b)(3).

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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Ida L. Traschen, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228, [phone], email: [e-mail]

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 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 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 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 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 the 25 year period prior to 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.

In response to comments on the proposed rule, the Commissioner has made four non-substantive changes to the revised rule. First, section 136.5(a)(1) has been revised to make clear that a zero tolerance finding (VTL section 1192-a) will not be considered after the expiration of the retention period contained in VTL section 201(1)(k). Second, a new paragraph (e) has been added to section 136.5(a) in order to define the term “25 year look back period.” Third, the 25 year look back period is now used as the measuring period in section 136.5(b) to evaluate whether the Commissioner shall approve or deny an application for relicensing. Fourth, a technical amendment is made to section 136.10(b) to clarify that the waiver of permanent revocation applies to revocations issued to Vehicle and Traffic Law section 1193(2)(b)(12)(b) and (e). The original amendment did not reference subparagraph (e).

The revised rule makes three substantive changes. First, the original language in section 136.5(b), which was deleted in the proposed rule, is reinstated in a new subdivision (b-1) of section 136.4. This provision authorizes the Commissioner to deny an application based upon a single conviction of certain Penal Law violations or if the applicant has been convicted of a violation of section 1192 of the Vehicle and Traffic Law where death or serious injury has resulted from such offense. Second, a new subdivision (e) is added to section 136.5 to provide that if after an application for relicensing is approved, the Commissioner receives information that indicates that such application should have been denied, the Commissioner shall rescind such approval and the license granted shall be revoked. Occasionally, the Commissioner is notified of a finding or conviction after an application is approved. If the notification had been made prior to such approval, the application would have been denied. This amendment authorizes the Commissioner to rescind approval upon such a notification and reinstate the license revocation. A similar provision already exists in relation to the issuance of conditional licenses in section 134.7(b). Finally, section 136.1(b)(3) is amended to provide that a “history of abuse of alcohol or drugs” shall be defined as two or more alcohol/drug related incidents within a 25 year period. Currently, if an applicant has two or more incidents within a 10 year period, such applicant must produce proof of rehabilitation. As a result of this amendment, applicants will have to produce proof of rehabilitation if their record indicates two or more alcohol/drug related incidents within 25 years of the date of application. An application is denied under section 136.4(a)(2) if there is insufficient proof of rehabilitative effort.

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.

Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

A Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement is not attached because changes made to the rule do not necessitate to the previously published Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public Comment

NOTE: This is a brief summary. The full assessment is posted on the Department of Motor Vehicles website at www.dmv.ny.gov.

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. Approximately, 17,500 drivers who had three or more such convictions were involved in crashes resulting in death or injury.

Comment: Several commenters question the constitutionality of the proposed rule, stating that the rule is being “applied retroactively.” These commenters argue that persons charged with alcohol- and drug-related offenses entered guilty pleas and/or consented to plea bargain agreements based upon the regulatory scheme at the time of the plea.

Response: At the beginning of 2012, the Department began an extensive review of the processes and criteria used when making relicensing decisions, particularly as they apply to persons applying for relicensing after being revoked for an alcohol- or drugged-driving related offense. In the interest of ensuring that drivers with similar records would be treated uniformly, the Department did not make relicensing decisions (either to approve or deny) with respect to drivers whose records contained multiple alcohol-related violations of the Vehicle and Traffic Law, committed over an extended period of time.

The Department has no statutory or regulatory obligation to review applications immediately upon receipt.

Comment: Several commenters assert that the emergency regulations represent “an end run around the legislative process.” The New York State Defender’s Association (“NYSDA”) maintains that the legislative process is more conducive to comment, debate, and revision than the regulatory process. NYSDA states that most members of the public do no read the State Register.

Response: The Department’s adoption of these regulations is not a usurpation of the legislative process, but rather, the appropriate exercise of the Commissioner’s discretion.

The Department believes that the regulatory process is conducive to public input.

Comment: An attorney in private practice suggests that attorneys would need instant access to their clients’ entire driving record in order to properly advise them of appropriate action and the consequences of a plea. NYSDA states that the fee for a lifetime record is burdensome and raises questions about the retention period for certain convictions on the lifetime record and whether such retentions are in accordance with Vehicle and Traffic Law section 201.

Response: A motorist or an authorized representative may request his or her extended record through the Department’s Freedom of Information Office. Contrary to NYSDA’s comment, the cost of the “lifetime” record is $10, not $10 plus $1 per page.

Comment: An attorney in private practice commented that a zero tolerance finding (Vehicle and Traffic Law section 1192-a) should not be included in the consideration of lifetime offenses because such offenses are expunged from a motorist’s record after three years and because such a finding requires a lower standard of proof.

Response: Section 136.5(a)(1) of the emergency regulations has been revised to make clear that the Department’s review of the applicant’s record will only consider zero tolerance findings that fall within the statutory retention period.

Comment: Three ignition interlock device companies, LifeSafer.com, Consumer Safety Technology, Inc., and SmartStart Inc. predict that the amended regulations will not make the highways safer for the motoring public, because the extended revocation periods set forth in the regulations will result in a new class of unlicensed, uninsured drivers in New York State that will drive drunk, resulting in injuries and deaths on our public highways.

Response: The Department recognizes that a certain number of persons with revoked licenses will continue to drive, just as a certain number will circumvent the use of an ignition interlock device. However, this concern is outweighed by the strong deterrent presented by a lengthy revocation period; the hardship on the motorist should serve to deter drunk and drugged driving. To help ensure that the multiple offender does not present a danger to the motoring public after license restoration, the proposed regulation requires the installation of the interlock device in all motor vehicles owned or operated by the motorist.

Finally, the Department lacks the statutory authority to require the installation of the interlock device in motor vehicles owned or operated by a person whose application has been denied. The Commissioner is authorized to promulgate regulations regarding restrictions on a valid driver’s license.

Comment: The three ignition interlock device companies recommend an amendment to Part 134 to provide that a person who has two or more alcohol- or drug-related convictions within 25 years from the date of enrollment in the DDP may be issued conditional driving privileges with an A2 restriction and be required to install the ignition interlock device in one or more vehicles operated by such person during the revocation period.

Response: The Department does not believe the recommendation is warranted.

Comment: The three ignition interlock device companies recommend that monitoring be an essential element of the new regulatory scheme.

Response: The Department will require all persons subject to the A2 restriction with interlock to produce proof that the interlock device has been installed in vehicles they own and operate. Such persons must present a DMV form, signed by the interlock installer, at the DMV issuing office that certifies that the device has been installed in their motor vehicles.

Comment: The three ignition interlock device companies recommend that if the “revocation, upon which the reapplication is required, is not based upon an alcohol/drug related event,” that the Commissioner have discretion to require the interlock device based upon a review of the entire driving record.

Response: The Department does not believe a non-alcohol related revocation warrants the imposition of the ignition interlock device.

Comment: The three ignition interlock device companies suggest there is an inconsistency between the amendments to Sections 3.2(c)(4) and Section 136.5(b)(3) and (4).

Response: There is no inconsistency among the regulatory amendments.

Comment: The three ignition interlock device companies recommend that if a person is denied an application for relicensure because he or she is deemed a problem driver, the Commissioner should have the authority to relicense such person with an A2 restriction with the interlock requirement.

Response: Section 136.4(b)(1) of the emergency regulations expressly grants the Commissioner such discretion.

Comment: The three ignition interlock device companies comment on the situation where the person’s license, with an A2 restriction, is revoked because such person fails to install the interlock device or violates the terms of the restriction. They suggest that the Commissioner may, in addition to revoking the license, require the installation of the interlock device during the period of revocation.

Response: As noted above, the Department lacks the statutory authority to require the installation of the interlock device in motor vehicles owned or operated by a person whose application has been denied.

Comment: The Department received comments from two individuals about a particular applicant for relicensure after revocation.

Response: It would not be appropriate to comment on an individual’s application for relicensing.

Comment: A mental health specialist states that the extended revocation periods set forth in the amendments to Part 136 would cause “terrible hardship.”

Response: The Commissioner will consider any “unusual, compelling and extenuating circumstances.”

Comment: Diageo, a company involved in the spirits, wine and beer industry, expressed support for the recently adopted regulations.

Response: The Department appreciates Diageo’s support.

Comment: NYSDA states that the regulations impose a disproportionate impact on the poor.

Response: The Department has no authority to waive mandatory fees.

Comment: NYSDA asks the basis for the time periods set forth in the regulations, i.e., the two-year vs. five-year extended waiting period, the two-year vs. five-year A2 restriction and the 25 year look back.

Response: As noted above, the Department has documented that recidivist drunk drivers pose a serious threat to the motoring public. In selecting the length of time for the waiting periods, the A2 restriction, and the look back period, the Department considered shorter and longer time periods. Ultimately, the Department concluded that the time periods selected are reasonable based on the incidence of repeated offenses and the goal of protecting the motoring public.

Comment: NYSDA 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.

Comment: NYSDA requests clarification of certain terms used in Parts 132 and 136.

Response: Fatal accident: This refers to an accident that results in a fatality. Driving-related Penal Law offenses: These are Penal Law offenses where operation of a motor vehicle is essential to the offense but is not necessarily needed to be an essential element of the offense.

Calculation of points: In assessing whether two five-point violations or 20 or more points should be counted as serious driving offenses, the Department will not “reduce” points if a motorist has completed the Point Insurance Reduction Program. Completion of a PIRP course serves to reduce the number of points to determine whether someone is deemed a persistent violator (accumulates 11 or more points within 18 months) and, therefore, is subject to permissive administrative action by the Department.

High-point driving violation: The high-point driving violation is assessed for one violation of the law. Although such violations will generally involve New York State offenses, the Department has compacts with both Ontario and Quebec. As part of those compacts, the Department assigns points for certain violations committed by New York State licensees in those provinces, such as speeding, passing a stopped school bus, reckless operation, and proceeding through a red light or stop sign.

Comment: NYSDA asks if the Department will consider out of state alcohol-related offenses.

Response: Yes. The Department will consider out of state alcohol-related offenses.

Comment: NYSDA comments that the interlock device must be installed in any vehicle owned or operated by the applicant and requests a definition of “operated.”

Response: In addition to a long line of case law that define “operated,” the Department is using the same language used in Leandra’s Law, in relation to the interlock requirement. That is, the device must be installed in all motor vehicles owned or operated by the individual.

Comment: NYSDA asks if the interlock device must be approved by the Department of Health and must be made by qualified manufacturers as defined in 9 NYCRR Part 358.

Response: The Department will refer applicants required to install the device to the DCJS website, where applicants will find devices approved for installation by DCJS. In other words, applicants will be required to install the same device that persons must install pursuant to Leandra’s Law.

Comment: NYSDA states that the regulations, and not just the A2 restriction attachment, should define “serious violations” that would trigger the revocation of the license with the A2 restriction.

Response: The Department wishes to retain some flexibility about what constitutes a serious violation and, therefore, confined the notice of the specific violations to the attachment, which is easily revised.

Comment: NYSDA asks about the length of the revocation period imposed pursuant to Part 132.

Response: Pursuant to section 510(6)(g) of the Vehicle and Traffic Law, the license would be revoked for a minimum of 30 days, after which the person could reapply for relicensure pursuant to Part 136. Such person’s application would be subject to the criteria set forth in Part 136.