Friday, October 05, 2012

Thursday, October 04, 2012

NY DWI Repeat Offenders: New DMV Rules in 2012

In my previous post I covered the phony emergency and bureaucratic end run in the new NY DMV DWI rules.

Now let's get into the meat of the new rules, all of which can be seen on the DMV Proposed Rules page (for now).
Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.
I'll start with the one that will affect the most people.

DMV rule 134.10(b) covers the process of getting your full license back after completing a rehabilitation program, commonly referred to as the DDP (Drinking Driver Program (pdf)). The amended language excludes you if you have:
two or more alcohol or drug-related driving convictions or incidents within 25 years from the date of enrollment in the program.
Here's an extreme scenario: In 1996 when you were 20 years old, you were arrested with a blood-alcohol content of 0.02 and convicted of VTL 1192-a - the Zero Tolerance Law.  In 2020 you're arrested for a DWI with a 0.06 BAC (I've seen it happen). Not knowing any better, you plead guilty to the DWI and your license is revoked. When you go to get your license restored, DMV refuses because of that 24-year-old zero tolerance conviction.

Anyone who's had any kind of DWI case in the past 25 years (and going forward) may face this problem. Most people in this situation will have a conditional license that lets them do most of the driving they need, but it will create significant problems for some.

We don't know the precise numbers in NY, but you might be surprised how many people have something on their record. According to a Minnesota DPS report (pdf, page 22), over 10% of their drivers have one. I've seen other numbers putting it as high as one in seven. If you live on a street with 20 houses averaging 2 drivers per home, then on average you've got about 5 neighbors who have a DWI history.

Part of the problem with the new rules are the broad definitions relating to "dangerous" drivers. Second 132.1(a):
Alcohol- or drug-related driving conviction or incident means a conviction of a violation of section 1192 of the Vehicle and Traffic Law, a finding of a violation of section 1192-a of the Vehicle and Traffic Law, 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 a finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law, not arising out of the same incident.
This includes anything under Section 1192. That's not shocking, but it includes the non-criminal DWAI offense under 1192(1), which is generally cases with BAC under 0.08, and widely perceived as far less serious than Aggravated DWI 1192(2-a) with BAC of 0.18 or higher. Treating these two offenses as the same is questionable.

The definition also includes 1192-a - the Zero Tolerance Law which is for a BAC as low as 0.02 for a young driver. Do we really want to punish people in their 40s for driving after one beer in their late teens?

And the definition includes "finding of refusal to submit to a chemical test." These findings are made with nowhere near the procedural protections one gets in a criminal case. The "hearing" is held in a tiny room in a DMV office. There is no jury. The decision is made by an Administrative Law Judge (ALJ). He (usually male) is an employee of the DMV, not like a judge in the court system. There is no discovery - zip, zero, nada, none. Your right to cross-examine the police officer is limited by the whim of the ALJ. Some of the ALJs are fair. Some aren't. If you can't afford a lawyer you don't get a public defender. You do have the right to an attorney, but many people don't know what their rights are. In a criminal proceeding the judge is required to instruct you about your rights. Most people don't even go to the hearing, and they lose even when they're innocent.

There's more in the definitions, but what matters here is how this impacts people. The new regulation under Section 132.2 calls for a "lifetime record review" of anyone convicted of a "high-point driving violation," which is defined as any violation of five or more points, such as passing a stopped school bus, reckless driving, and speeding more than 20 mph over the limit. If the review shows enough relevant convictions or incidents in the driver's lifetime, or a different threshold in the past 25 years, then their license will be revoked. And they might never get it back.

Here's the extreme situation. Ralph had a bad run in his teens and 20s. He had a zero tolerance violation at 19. He had four more convictions or incidents in his 20s. He served his time, paid his debt to society, etc.

Fifty years later Ralph is driving south on the Northway and doesn't notice the speed limit dropped from 65 to 55 mph. He gets a ticket for 76 in a 55. Ralph mails in a plea of guilty and pays the fine. The lifetime record review ensues. Because of the five convictions/incidents from fifty years ago, Ralph's license is revoked.

But wait ... there's more. Ralph applies to have his license reinstated after the revocation period is up. New regulation 136.5(b)(1) requires states: "the Commissioner shall deny the application." Ralph just lost his license permanently because of a recent 76 in a 65 and his bad behavior that happened fifty years ago.

Really what's happening is Ralph is being punished again for what happened long ago. That's not what the Courts will say. They'll say this isn't punishment. It's not a penalty at all, just an administrative remedy.

If the individual doesn't have five incidents in his lifetime, he can still get hit if he has three convictions or incidents in the past 25 years, plus one or more serious driving offenses. The definition of "serious driving offense" is also troubling:
Serious driving offense means (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of two or more high-point driving violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part; or (iv) 20 or more points from any violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part.
The fatal accident one sounds serious, but it doesn't say it has to be the driver's fault. And one can have a fatal accident arising out of a minor driving offense.

A "driving related Penal Law conviction" is vague. Does that include a marijuana violation resulting from a traffic stop? Or a shoplifting arrest that occurs after you started driving away from the store? What if you drive away from the gas station without paying for the gas? This may not be a big concern because it's not clear if the DMV's system tracks such convictions.

Then we have "conviction of two more more high-point driving violations." So if you had two of the 76/55 speeds in the past 25 years, you're on the hook. Or with the last category, you could get one ticket every four years for 66 in a 55 (11 mph over). Each counts for four points. You'd have 20 points in 20 years.

So, like Ralph's situation, 22 years ago you had a bad run. You got a couple DWAIs and a DWI. As a part of that you also got a couple speeding tickets or other point-bearing violations. Then you had a couple of low speeds 15 years ago. Now you get your 76/55, the record review, and you're revoked. Under 136.5(b)(2), your application for reinstatement will be denied - permanently. Again, the individual is being punished not for the 76 in a 55, but for the long ago conduct.

There's more in these rules, including situations where an ignition interlock device would be required for someone who is getting their license back. That's complicated and we've covered quite a bit here already.

This is all very new, and I may have missed something. I certainly appreciate any comments, suggestions or corrections.

New DMV Rules for Repeat DWI: A Phony Emergency

The New York DMV has issued a new set of proposed rules affecting repeat DWI cases. This received a brief splash of coverage in the media, such as Casey Seiler's article in the Times Union. This has an impact on anyone convicted of a DWI offense who has a prior offense within the past 25 years.*
Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.
So far we have yet to see a thorough analysis of the proposal, or discussion of the DMV's decision to impose the rules before public comment as an "emergency." In this post I discuss the phony emergency and abuse of the regulatory process. In the next I'll discuss the details of the rules. --Update - link is here: NY DWI Repeat Offender New DMV Rules --

DMV describes this as about "Dangerous Repeat Alcohol or Drug Offenders" on the DMV's Proposed Rules page, with the following note:
Emergency Rule
Effective September 25, 2012
Comments accepted until
November 26, 2012
DMV Commissioner Fiala
The emergency designation puts the rule into effect immediately, before public comment.  The idea is that something has happened (an emergency) that makes this urgent and something that must be done.

What's the emergency? New York State was one of the first to make drunk driving illegal, back in 1910 (per Wikipedia on history of drunk driving laws). The legislature has made changes to the law over the years, such as adding Aggravated DWI back in 2006, and the new ignition interlock law in 2010. The laws already address repeat offenders in a variety of ways.

Here's a common definition of emergency:
A serious, unexpected, and often dangerous situation requiring immediate action.
The repeat DWI problem may be serious and dangerous, but the "unexpected" is missing. There is no emergency. There is no need for immediate action either. Using the emergency approach is an end run around the normal regulatory process.

The regulatory approach is also an end run around the legislative process. DMV is making new and substantial rules affecting people accused of drunk driving offenses. This is really the legislature's job, and something they have not hesitated to do in the past.

For example, Vehicle and Traffic Law Section 1196 sets rules regarding the Drinking Driver Program (which includes eligibility for a conditional license) and subsection 4 bars repeat offenders if their prior offense was within five years. VTL 1193 makes an offense a felony if there is a prior offense within ten years.

If there is a need for further rules regarding repeat offenders, the legislature has demonstrated a willingness to do something about it. The proper path in a representative democracy is for our elected representatives to make such rules through the legislative process. Instead the DMV decided to skip that and create its own rules.

One real consequence of this is that it blindsides people dealing with DWI cases right now because it is retroactive. An attorney friend contacted me about a case where he already negotiated a plea agreement in early September. His client will now be affected by a rule that did not exist when he committed his offense. Thanks to the "emergency" trick, they did not have notice of the rule when he made his plea deal. If this were done through the legislative process or at least not used the phony emergency designation there would have been some public notice of what was going on.

In my next post I'll provide a detailed analysis of the changes in the new rules.

*One of the proposed rules amends Regulation 134.10(b) to prohibit those with 2 convictions within the past 25 years from early termination of suspension/revocation after completion of the Drinking Driver Program.