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Posts from the "New York State DMV" Category

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Justice for Allie Liao

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The New York State Department of Motor Vehicles faces a critical test on January 6 at 9 a.m.:  Can the agency provide meaningful oversight and consequences for reckless drivers?

That morning, Ahmad Abu-Zayedeh, the driver who struck and killed 3-year-old Allie Liao and traumatized her grandmother, is scheduled to appear for a DMV safety hearing. [Disclosure: My firm, the Law Office of Vaccaro and White, represents the Liao family in civil litigation.] At the hearing, Abu-Zayedeh will be questioned under oath by a DMV administrative law judge, and confronted with evidence establishing his recklessness in striking Allie and her grandmother. A high-definition video recording fortuitously made from close range conclusively establishes that Abu-Zayedeh recklessly violated his victims’ right of way:

The case is important for many reasons. Most fundamentally, the Abu-Zayedeh hearing occurs in the opaque near-vacuum of regulatory oversight for killer drivers who avoid criminal charges. Abu-Zayedeh tested positive for alcohol on a chemical test after the fatal crash, but the reading was less than that needed to establish intoxication as a matter of law. Because he didn’t meet this intoxication threshold, and because he was duly licensed and stayed at the scene, Abu-Zayedeh received the usual automatic pass from the criminal justice system.

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DMV Primer: Why Safety Hearings Should Be Held For Non-Fatal Crashes Too

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This is part of a series of posts on the workings of the New York State Department of Motor Vehicles, its role in deterring or facilitating traffic violence, and agency reforms that could make streets and roads safer.

Last week I wrote about a key shortcoming in the Department of Motor Vehicles safety hearing program: DMV holds these hearings to review drivers’ licenses in only a subset of the crashes resulting in a fatality. But after a conversation I had last week with a representative of the DMV legal department, it appears that potentially any crash victim can bring a complaint seeking a safety hearing to review the license of the driver causing the crash.

DMV rules say that a hearing can be initiated by a “complaint,” and clearly indicate that such hearings may be held following a fatal crash. But the specific procedure to initiate a complaint isn’t spelled out in those rules or elsewhere on the DMV website. It is therefore not surprising that the DMV representative I spoke with told me she has not seen a citizen-initiated safety hearing in recent memory.

But there are powerful reasons why crash victims can and should seek a safety hearing. As detailed almost daily on Streetsblog, the criminal justice system addresses only a small percentage of violent crashes that result in injury or death, often with no more than a slap on the wrist. Even the traffic violation system run by DMV fails to provide meaningful consequences to sober, reckless drivers, as demonstrated following the crashes that killed Allie Liao and Mathieu Lefevre. Safety hearings hold the possibility of a third source of state-authorized sanctions for reckless drivers that (unlike criminal and Traffic Violations Bureau proceedings) does not depend on procedures stacked so heavily in favor of the driver.

There is of course a resource issue at the bottom of this. It would trivialize and overwhelm the safety hearing program if every victim of a dangerous driving maneuver demanded a hearing against the driver. No doubt DMV would invoke a lack of resources to limit hearings to serious cases, and rightfully so. But in many, many cases, the driving behavior responsible for a nonfatal crash is just as reckless as the driving that causes a fatality. There is no principled basis for refusing a hearing in such a case, especially when serious injury results. We should expect and demand that DMV devote sufficient resources to ensure consequences through the safety hearing program for reckless drivers who seriously injure other people, as well as for those who kill.

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DMV Primer: How the Safety Hearing System Lets Deadly Drivers Off the Hook

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This is part of a series of posts on the workings of the New York State Department of Motor Vehicles, its role in deterring or facilitating traffic violence, and agency reforms that could make streets and roads safer.

Crash victims and their families have learned to expect little from New York City’s police and district attorneys, most of whom reflexively “suspect no criminality” in a traffic crash unless the driver was drunk, unlicensed, or fled the scene. Even the minimal penalty of a traffic ticket issued to a reckless driver who injures or kills often doesn’t stick. When this happens, what option is left, other than a civil trial, to penalize dangerous driving? In the state of New York, the mechanism is supposed to be a DMV “safety hearing,” which could result in a driver’s license being suspended or revoked.

But the safety hearing system does not fulfill this function. One of the key reasons is that safety hearings are held in too few cases. Following the revelation that traffic tickets issued to Ahmad Abu-Zayedeh for killing Allison Liao had been dismissed, DMV claimed that “whenever a fatal accident occurs,” it holds a safety hearing:

Mr. Abu-Zayedeha was found not guilty and those tickets were dismissed on July 1, 2014… However, whenever a fatal accident occurs anywhere in the state, the DMV schedules a special safety hearing. That hearing for Mr. Abu-Zayedeha has been set for January 6.

DMV’s claim is false. In fact, DMV picks and chooses which crashes will result in a safety hearing. Even in fatal crashes, where there is substantial evidence of driver recklessness, DMV may not hold a hearing.

For example, teacher Rasha Shamoon was fatally injured by an SUV driver while bicycling. Although the 21-year-old driver had been convicted of five moving violations during a short period of time prior to the crash, police blamed Shamoon based on the driver’s version of events. Shamoon’s family demanded that the DMV hold a safety hearing to review the driver’s license, but the DMV refused to do so, stating:

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The New York State DMV Primer: Why Two Hearings for Killer Drivers?

Editor’s note: This is the first installment in a series of Streetsblog columns and stories on the workings of the New York State Department of Motor Vehicles, its role in deterring or facilitating traffic violence, and agency reforms that could make streets and roads safer.

Many questions arose when news broke that the motorist who struck and killed 3-year-old Allison Liao had been acquitted by the New York State Department of Motor Vehicles of the traffic violations he was charged with — careless driving and failure to yield — but that the same motorist would be appearing at a DMV “safety hearing” in January. Since the DMV threw out all tickets issued to Ahmad Abu-Zayedeh, what is the purpose of this second “safety hearing”?

The reasons are in large part historical. There is an English-American criminal procedure tradition stretching back 500 years for how to handle government attempts to punish an alleged wrongdoer. The accused is given certain procedural rights, because historically these types of hearings were fraught with abuse and overreach by the state. The accused has a right to confront witnesses against him or her, to refuse to give testimony against him or herself, to be presumed innocent and force the government to prove the charges.

Even though a hearing on a traffic infraction — what happens when a person receives a traffic ticket for a moving violation — is not a criminal hearing, it is like one and is rooted in the same legal traditions. It is like a criminal hearing in the sense that the government (police, specifically) is accusing and seeking to punish an individual. For lawyers, this triggers all the historical references to what a criminal trial should look like. Not surprisingly, the DMV regulations governing traffic ticket hearings allow a driver the right to counsel and a right not to testify (and therefore a right not to be forced to look at a videotape, as Abu-Zayedeh has refused to do). The driver has a right to force the state to a higher standard of proof — not quite the “beyond a reasonable doubt” standard of a criminal hearing, but the “clear and convincing” standard, which is also quite high.

Though it is just a traffic ticket hearing, most lawyers and legal policy makers (not to mention most drivers) would agree that these advantages for the “accused” are crucial to the fairness of the process. In essence, the procedures for conducting hearings on traffic infractions are stacked in favor of the accused, based primarily upon tradition, rather than upon the reasons the traditions evolved in the first place (i.e., governments using criminal prosecutions to suppress political dissent).

In contrast, an administrative hearing to review a government license is a product of the 20th century administrative state. It has only been around for about 50 years. There is very little baggage from the pre-modern era regarding the conduct of these hearings. There is also a frank recognition that the stakes are much lower than in the criminal setting — there are no penalties except for the possible suspension or revocation of driving privileges. While the proceeding still must be fair, few would suggest in the licensure review context that the deck should be heavily stacked in favor of the license holder.

Accordingly, the procedures for a DMV safety hearing are very different from those in the traffic ticket hearing. The license holder must answer the questions posed — there is no right to remain silent. Presumably this means the driver can be shown a videotape and required to answer questions about it, if that is what the judge decides to do.

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Families for Safe Streets Meets With Cuomo Rep to Talk DMV Reforms

In a meeting with representatives from Governor Andrew Cuomo’s administration Tuesday, members of Families for Safe Streets called for reforms to New York State Department of Motor Vehicles protocols, with the goal of discouraging reckless driving and obtaining some measure of justice for crash victims and their families.

New York State DMV Commissioner Barbara Fiala did not attend a Tuesday meeting with family members of traffic violence victims. Photo: NYS DMV

New York State DMV Commissioner Barbara Fiala did not attend a Tuesday meeting with family members of traffic violence victims. Photo: NYS DMV

Karen Rae, Cuomo’s deputy transportation secretary, met with relatives of crash victims at the governor’s Manhattan office. The meeting was arranged by Congresswoman Grace Meng [PDF], and was prompted by news that the DMV voided both traffic tickets issued by NYPD to the driver who killed 3-year-old Allison Liao in Queens in 2013.

A recording obtained by WNYC reveals that the administrative judge rushed through the hearing and declared the driver, 44-year-old Ahmad Abu-Zayedeh, ”not guilty” in a matter of seconds. The video that captured the collision was never screened.

Allison’s parents, Amy Tam and Hsi-Pei Liao, attended yesterday’s meeting. Also present were Amy Cohen, mother of Sammy Cohen Eckstein; Kevin Sami, whose father was killed in a crash; and attorney Steve Vaccaro. J. David Sampson, the agency’s executive deputy commissioner, represented the DMV. DMV Commissioner Barbara Fiala was expected to attend but was not there.

Officials and advocates discussed the January DMV “safety hearing” scheduled for Abu-Zayedeh, as well as last January’s hearing for the driver who killed Brooklyn pedestrian Clara Heyworth, when a DMV administrative judge relied mainly on the motorist’s own testimony to determine whether or not he would be allowed to drive legally again.

Families for Safe Streets presented the following recommendations to DMV:

  • A mandatory three-month license suspension for serious offenses while driving, including (a) hit and run; (b) aggravated unlicensed operation; (c) failure to use due care (VTL 1146); and (d) striking someone with the right of way (per NYC Administrative Code Section 19-190).
  • Reform the DMV point system so that higher point values apply to violations where someone is seriously injured or killed; prevent drivers from using adjournments to push points outside the 18-month window and avoid suspension.
  • Greater accountability for commercial drivers, enforced by a mandatory three-month or longer license suspension upon accrual of six or more penalty points.
  • Mandatory, prompt and publicly-noticed safety hearings at which victims, their families, and NYPD crash investigators can attend, present evidence and make statements; quarterly reporting of aggregate safety hearing outcomes and other statistics.
  • DMV’s adoption of the equivalent of the Federal Crime Victim’s Bill of Rights for victims’ families at traffic ticket hearings related to fatal crashes.

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NY State DMV Dismisses Tickets of Driver Who Killed Allie Liao [Updated]

The New York State Department of Motor Vehicles dismissed summonses for failure to yield and careless driving issued to the driver who killed 3-year-old Allison Liao in 2013. Image via ##https://twitter.com/KeeganNYC/status/530515713405231105##@KeeganNYC##

The New York State Department of Motor Vehicles dismissed summonses for failure to yield and careless driving issued to the driver who killed 3-year-old Allison Liao in 2013. Image via @KeeganNYC

Update: Streetsblog has filed a freedom of information request for documents related to the DMV’s dismissal of tickets issued by NYPD to Ahmad Abu-Zayedeh.

An administrative law judge with the New York State Department of Motor Vehicles threw out tickets issued by NYPD to the driver who ran over 3-year-old Allison Liao as she and her grandmother walked hand in hand in a Queens crosswalk.

The driver, identified by police as 44-year-old Ahmad Abu-Zayedeh, was turning left from Cherry Avenue onto Main Street in Flushing when he hit Allison on the afternoon of October 6, 2013. Though NYPD and the media initially said Allison “broke free” from her grandmother, video of the crash showed the pair walking together as Abu-Zayedeh approached from behind, striking Allison and pulling her underneath the SUV.

Abu-Zayedeh was summonsed for failure to yield and failure to exercise due care. Neither NYPD nor Queens District Attorney Richard Brown filed criminal charges against him for striking Allison. According to the Wall Street Journal, “Brown described the accident as a ‘tragedy’ and said he wouldn’t bring charges.”

On Thursday Allison’s parents, Amy Tam and Hsi-Pei Liao, learned that the DMV dismissed both tickets. The revelation came during a deposition of Abu-Zayedeh, according to attorney Steve Vaccaro, who is representing Tam and Liao in a civil suit. Allison’s family was not contacted by the DMV.

Streetsblog has reported before that, at least in some cases, the DMV adjudication process relies mainly on testimony from drivers involved in fatal crashes, not police reports or other evidence.

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NYC Pedestrian and Cyclist Traffic Injuries Hit Five-Year High in 2013

Motorists injured more pedestrians and cyclists in New York City last year than in any of the previous five years, according to official 2013 data on traffic injuries and deaths released by the state DMV [PDF]. Confirming preliminary NYPD figures, the final DMV stats show total traffic injuries remained near the five-year low — meaning pedestrians and cyclists accounted for a higher share of traffic violence victims on New York City streets in 2013 compared to recent years.

Total traffic injuries increased around 2 percent from 2012 to 2013, while pedestrian injuries went up 5 percent and cyclist injuries rose 8 percent. All told, drivers injured 11,398 pedestrians and 3,817 cyclists last year — the highest totals in any of the last five years.

There were 294 total traffic fatalities in 2013, an 8 percent rise from 2012, when 271 people were killed. More people died in New York City traffic crashes last year than in any of the past five years.

Traffic deaths are more subject to random variation than traffic injuries, and there were some especially large swings in pedestrian and cyclist fatalities last year. Pedestrian deaths increased from 135 in 2012 to 183 in 2013, marking the highest death toll in the last five years after four years of declining fatalities, while cyclist deaths dropped from 17 to 9.

Last year, 65 percent of people killed in traffic were pedestrians and cyclists, compared to 56 percent in 2012.

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DMV Scrambles to Contain Scandal of Wrongful Bike Penalties

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Last Friday, New York State DMV responded to mounting evidence that it has been systematically cheating cyclists by imposing motorist-only surcharges and license points for bicycling violations, contrary to state law. The problem was first brought to DMV’s attention on August 12, in a Streetsblog post. DMV admitted that it was violating the law and agreed to refund the improper surcharge to two cyclists, but did not indicate that it would do the same for other cyclists, or change its procedures going forward.

On September 2, State Senator Brad Hoylman wrote a letter to DMV Commissioner Barbara Fiala demanding that she respond to the August 12 charges against the DMV in Streetsblog. Then on September 17, I filed suit against the DMV on behalf of six cyclists as putative representatives of a statewide class of thousands of cyclists who faced excessive and improper penalties for bicycling violations.

DMV finally broke its month-long silence by responding to Senator Hoylman in a letter delivered last Friday. Commissioner Fiala’s letter details DMV’s extensive efforts to identify all of the cyclists affected by improper ticket coding. DMV says it has reviewed 25 years’ worth of bicycle traffic tickets — including 50,000 bicycle tickets issued in the last five years alone.

Commissioner Fiala states that DMV has taken the following steps to remedy the “regrettable” miscoding of bicycle tickets:

  • Paying refunds to 84 cyclists improperly required to pay motorist-only surcharges
  • Removing penalty points improperly applied to the licenses of 222 cyclists
  • Recoding 570 pending tickets issued for cycling violations that had been miscoded as motor vehicle violations
  • Making plans to issue a memo to law enforcement officials to reduce the incidence of future miscoding of cycling tickets
  • Making plans to change internal DMV procedures used to identify bicycle tickets
  • Making plans to add language to form UT-60 and to the DMV website to advise cyclists that they are not subject to surcharges or penalty points

These are important and welcome steps to help correct the problem. Cyclists owe great thanks to Senator Hoylman for focusing Commissioner Fiala’s attention on the problem, and to the commissioner for her willingness to admit mistakes and to take the problem seriously.

Nonetheless, it appears that DMV’s efforts have only scratched the surface.

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Cyclists Sue New York State DMV for Unlawful Ticket Penalties

New York City cyclists have filed a class action lawsuit against the New York State Department of Motor Vehicles for administering penalties for traffic violations that by law apply only to motorists.

NYPD ticketed thousands during

NYPD ticketed thousands during “Operation Safe Cycle.” How many were cheated by the New York State DMV? Photo via @OpSafeCycle

In an August Streetsblog column, attorney Steve Vaccaro reported that the DMV cheats cyclists who plead guilty to traffic tickets online by billing an $88 surcharge that doesn’t apply to bike violations, and attaching drivers license points that don’t legally apply. The DMV online ticket payment system does not distinguish between bikes and motor vehicles.

The agency acknowledged to Vaccaro that it was violating the law, and agreed to refund the improper surcharge for two of Vaccaro’s clients, but did not indicate that it would do the same for other cyclists, or correct its procedures going forward.

Vaccaro filed suit Tuesday on behalf of six cyclists [PDF]. The plaintiffs seek to be a representative class for cyclists statewide whom the DMV penalized improperly.

“The DMV admits to cheating, but has offered to pay refunds only to bicyclists who request it in writing,” says Vaccaro. “That approach would result in only a small fraction of the persons cheated receiving a refund. DMV has also failed to put forward a plan to prevent the problem from recurring in the future, other than giving DMV staff a ‘reminder’ that different rules apply to bicycle violations.”

In the complaint, one of the plaintiffs says he pled guilty and paid the correct fine, then received a DMV notice threatening to suspend his license and apply additional fines if he didn’t pay the surcharge as well. Another plaintiff asked DMV in writing for an explanation of the “mandatory surcharge,” and was told he had to pay it. Only after repeated inquiries did a DMV staffer agree to revisit whether the surcharge applied to bike tickets.

The complaint says DMV directed all plaintiffs to pay the motorist surcharge and accept three license points as a condition of pleading guilty. The complaint alleges that DMV failed to train employees to distinguish between cyclist and motorist tickets. The suit seeks damages for increased auto insurance premiums that resulted from the wrongful application of license points, as well as changes to the DMV traffic ticket form and web site to prevent cyclists from improper penalties in the future.

Vaccaro filed a freedom of information request for data on how many cyclists may be entitled to refunds, a number that the complaint says may be in the hundreds of thousands. Cyclists who believe they were unlawfully penalized by DMV are encouraged to contact Vaccaro’s firm.

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New York Driver’s Ed Is a Joke

Want a driver’s license? It’s easy. Fill out some paperwork and pop on over to the DMV to take a 20-question test for your learner’s permit. Then, get in some practice with a licensed driver. (But if you’re over 18, you can just ignore that part!) Then sit through a five-hour course before taking a quick road test, like these people. Total cost: about $50 and a few hours. Once your license expires, you can renew it with a few clicks online.

No wonder the United States has such a high traffic fatality rate.

Compare this to Germany, where people are less than half as likely to be killed in traffic. In a new video, CNET’s Brian Cooley explains German requirements for learning to operate a high-speed, multi-ton piece of heavy machinery.

The process starts with 14 to 20 hours of technical training, sometimes more, Cooley says, including a test with 30 multiple-choice questions that determines whether you know how to react to any conceivable situation in traffic. That’s followed by at least twelve 90-minute training sessions behind the wheel, including four on the Auotbahn and three at night. If your instructor isn’t satisfied, you could be sent back for additional training sessions.

Then there’s another written exam that plumbs the depths of German traffic law. Three wrong answers is an automatic failure. Fail it three times, and you have to go back to the technical training sessions. And if you learn on an automatic transmission instead of standard, your license prohibits you from driving anything but an automatic. The entire process takes three to six months and can cost about $2,500.

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