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Posts from the "Street Justice" Category

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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 For lawyers, this triggers all the historical references to what a criminal trial should look like.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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Sanity Prevails as Advocates and Officials Discuss Central Park Safety Issues

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Monday night, Deputy Inspector Jessica Corey, the commanding officer of NYPD’s Central Park Precinct, led a discussion of street safety in Central Park. Convened by the Central Park Conservancy, it drew representatives of most major advocates and organizations of recreational users of the park, including NY Road Runners, Transportation Alternatives, Asphalt Green Triathalon, Central Park Skate Patrol, and various bike clubs and bike racing organizations.

Responding to the tragic killing of Jill Tarlov, the group worked to build on education and enforcement programs for users of the Central Park loop. In contrast to the overheated rhetoric in the tabloids and local TV newscasts, sanity prevailed. Some of the more radical proposals that have surfaced of late — such as closing the loop to bikes — were not even mentioned. Lowering the speed limit in the park did not come up either. It appears that, at least in the short term, cyclists’ use of the park will continue as it has before, albeit with a continuation of the increased level of enforcement already seen for most of 2014.

Inspector Corey started with some statistics: Year to date, there have been 168 crashes involving cyclists in the park, with six involving motor vehicles, 98 involving cyclists crashing on their own, 27 involving two or more cyclists, and 37 involving pedestrians. In addition with the two recent pedestrian fatalities, she mentioned three cases involving pedestrian skull fractures, including one which occurred during the early morning hours when training bicyclists are supposed to use the park loop.

Corey also reported nearly 700 moving violations and 100 criminal citations issued to cyclists year-to-date — a nearly six-fold increase over the first nine months of 2013. Most of these summonses were for failure to yield to pedestrians, although she indicated that there has been an increase in red light tickets as well following the two recent fatalities and other serious crashes.

I raised the issue of criminal summonses, since I’ve received several reports of cyclists on the loop going slowly through red lights, while no pedestrians were in the crosswalk, receiving summonses for “reckless driving” — a misdemeanor charge that applies only to motor vehicle operators and is used only for the most serious misconduct by motorists. The recipients of these summons will be forced to appear in criminal court — there is no way to resolve the summons by mail — but will have the charges dismissed (because they are not motor vehicle operators) after wasting half a day at court. I explained that this kind of criminal summonsing is not only completely improper, but breeds contempt, rather than respect, for the law. Inspector Corey promised to investigate these criminal summonses.

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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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If Police Don’t Take Traffic Violence Seriously, Vision Zero Will Fail

Eight months in, Mayor de Blasio and his administration should be proud of how much has been achieved under the Vision Zero program. As an attorney and advocate for crash victims, my expectations were exceeded by the early progress in almost every area of this multi-agency initiative. There have even been noticeable changes at the police department — the one agency that historically has been most resistant to stepping up on street safety. But as shown by the Dulcie Canton scandal NYPD’s response has been inconsistent. [Disclosure: The author is on the board of StreetsPAC, which endorsed Bill de Blasio for mayor, and his law firm represents Dulcie Canton.]

Dulcie’s case illustrates the gaping holes that remain in NYPD’s approach to Vision Zero. She was struck with tremendous force in a horrific hit-and-run crash on August 7 and suffered serious injuries, somehow managing to escape with her life (in large part because she was wearing a helmet). Surveillance video shows a sedan driver speeding behind her fully-illuminated bicycle, striking her, and driving off without so much as hesitating.

Although, as is often the case, the surveillance video did not capture the car’s license plate, and the driver sped off before witnesses could get a look at him, Bushwick residents at the crash scene came together in a remarkable way to help identify the driver. The owner of the building by the crash site went to extraordinary lengths to preserve footage from his surveillance cameras. People on the block recovered a piece of the car that fell off when it struck Dulcie, bearing serial numbers that link it to the vehicle. The skateboarder with Dulcie that night worked with neighbors to identify the car, parked just a block or so from the crash scene. This prompt action from neighborhood residents — the lengths people went to in order to help a crash victim and find a perpetrator — shows just how much the principles of Vision Zero matter to New Yorkers.

All that was left for me to do as Dulcie’s lawyer was to bring this evidence to the police and let them do their job — or so I thought. But that’s where the process broke down. Because Dulcie thankfully hadn’t been killed or critically injured, the NYPD’s Collision Investigation Squad did not respond. Instead, a detective at the 83rd Precinct was assigned to investigate the case as a hit-and-run. With all optimism, I met with the detective on the fourth day after Dulcie’s crash and gave him all the evidence, and told him we were waiting to inform the insurer of the car of our claim because we didn’t want the company to alert the owner of the car to the investigation.

Over the following month, I followed up with the detective several times by phone and in writing. He explained to me that he was busy with a heavy caseload and needed more time before he could question the owner. After three weeks, the Bushwick neighbors who had been so helpful and had continued to monitor the car advised that the owner had fixed the damage from the crash. Now that critical evidence was being lost and concealed, we had to act, and so the car’s insurer was alerted.

Naturally, I heard back from the insurer that the owner of the car denied any knowledge of the incident. But recent press attention to this case has caught the attention of some law enforcement officials, and following a meeting yesterday it appears that Dulcie’s crash may finally be investigated as it should have been. Many thanks to folks who made phone calls and used social media to help us move this case higher on NYPD’s to-do list!

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DMV Cheating Cyclists With Unlawful Surcharges and License Points

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As NYPD’s latest bike ticket blitz — “Operation Safe Cycle” – rolls into its second week, here at my law firm we’ve been getting more than the usual number of phone calls and emails from cyclists with questions about summonses. Usually the big question in these discussions is whether to plead guilty, not how to plead guilty. But now it appears that if you pay your fine online for a moving violation while cycling, you’ll probably be paying an $88 surcharge that you shouldn’t be, and getting points on your license that don’t belong there.

The problem arises when cyclists make their plea and pay the fine online, as most who receive traffic tickets in New York City do. Even though traffic tickets issued to cyclists usually indicate on their face that the vehicle is a “bicycle,” the DMV’s online payment system appears to ignore this fact.

Yet the DMV’s own rules with respect to surcharges and license points make crystal clear that they do not apply to cyclists. The specific provisions of law that exempt cyclists from the $88 surcharge and from points are set forth in a letter we recently sent to the DMV demanding that it cease and desist from applying these unlawful penalties. We have yet to receive a response.

This is no simple computer glitch either. Judging from the pre-printed traffic forms supplied by the DMV, you’d think it’s trying deliberately to trick cyclists into overpaying their fines. The form states: “included in the total amount for each violation (except equipment) are mandatory surcharges in the amount of $88. Equipment violations include mandatory surcharges of $58.”

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A Powerful New Tool to Deter Traffic Violence — If Law Enforcers Use It

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Last Thursday, the New York City Council passed Intro 238. This legislation makes it a misdemeanor for drivers to strike pedestrians or cyclists who have the right of way. Intro 238 has the potential to dramatically change driver behavior and advance the Vision Zero program of eliminating traffic fatalities.  But without enforcement by NYPD and prosecutors, Intro 238 will be no more than an unheeded “message in a bottle.”

What makes Intro 238 potentially so revolutionary? And why should we expect law enforcement to embrace it? To answer those questions, let’s do a quick review of how and why this legislation came to pass.

The need for criminal penalties to deter reckless driving is plain from the story of Ally Liao, told by her parents in City Council testimony this April supporting Intro 238 (videotape here). Allie was crossing hand-in-hand with her grandmother, in the crosswalk with the “Walk” signal, when a driver turned into them and killed her. The driver told police that he had looked for pedestrians in the crosswalk and hadn’t seen any. Police then told the Daily News that Ally had “broken free” from her grandmother, suggesting that the entire incident should be treated as a “tragic accident” befalling a rambunctious and poorly-supervised child.

But the video tells a very different story – one that plays out hundreds of times each year on New York City streets. Ally and her grandmother followed all the rules, but the driver still faced few consequences for killing her.

The city should make it a crime to drive this recklessly. That is the basic idea behind Intro 238, which originated with a proposal first discussed with candidates in StreetsPAC endorsement interviews, then published here on Streetsblog, and then lobbied for by Transportation AlternativesFamilies for Safe Streets, and many others.

Following the April hearing, the City Council amended Intro 238 to protect not only pedestrians, but also cyclists.  The law will take effect 60 days after it is signed by Mayor de Blasio, who at his January Vision Zero press conference acknowledged that reckless drivers “do not face sufficient consequences.”

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NYPD Denies Access to Confiscated Bikes, Including Those of Crash Victims

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As seasoned observers of the department’s dealings with bicyclists know, NYPD has long enjoyed taking our bikes. Following the 2004 Republican National Convention, NYPD clipped locks and took bikes of persons suspected of associating with Critical Mass, resulting in a successful federal lawsuit that enjoined the practice as a constitutional violation. During a 2010 visit to New York by President Obama, NYPD without notice confiscated bikes wholesale along the president’s route, failing to tag the bikes and making it extremely difficult for their owners to reclaim them. Now, NYPD has taken things to the next level by shuttering its bike pound for a year and a half, and refusing to allow owners to claim their bicycles indefinitely.

The problem came to light during efforts by the Lefevre family to retrieve the bicycle of fatal crash victim Mathieu Lefevre. [Disclosure: Steve Vaccaro of Vaccaro & White is counsel to the Lefevre family.] NYPD has moved to quash a court-ordered subpoena to produce the bicycle Lefevre rode the night he was killed. This comes on the heels of well-documented foot-dragging by the NYPD in failing to respond to the Lefevres’ requests for information in the immediate aftermath of their son’s death, drawing extensive press attention, from Streetsblog to the New York Times. The Lefevres ultimately sued the NYPD to get the investigative documents to which they were entitled, resulting in judicial criticism that NYPD “needlessly delayed handing over documents and other materials” in a manner “agonizing” to the family.

In this latest example of NYPD stonewalling, the Lefevres issued a subpoena to the NYPD to produce the bike for use as evidence against the driver. The Lefevres’ papers state that the bike is needed to reconstruct the manner in which the crash occurred, and to test the driver’s claim that he was unaware that he had struck Lefevre when he left the scene of the crash. A picture of the bicycle taken by police the night of the crash shows extensive damage:

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NYPD’s Jaywalking Enforcement Boondoggle

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Although the de Blasio administration’s Vision Zero plan to eliminate traffic fatalities does not specifically call for pedestrian traffic enforcement, NYPD Commissioner Bill Bratton has made clear that individual precinct commanders have the discretion to do so if they determine it to be warranted.

Leaving aside the many good reasons that pedestrian ticketing should be considered NYPD’s lowest traffic enforcement priority, it now appears that many NYPD officers (and some precinct commanders) do not even understand the traffic laws that apply to New York City pedestrians. The NYPD’s jaywalking enforcement boondoggle points to the need for comprehensive in-service training for NYPD officers on pedestrian, cyclist, and motor vehicle traffic laws.

After three Upper West Side pedestrians were killed by motor vehicles within a short period of time and within two blocks of Broadway and 96th Street, the commander of the 24th Precinct apparently decided that pedestrian traffic enforcement was needed. (Only one of the three pedestrians killed, Samantha Lee, was alleged to have violated traffic laws).

Building on this disconnect between the problem and the proposed solution, officers of the 24th Precinct proceeded to cite pedestrians for violation of New York State Vehicle & Traffic Law Section 1152, “Crossing at other than crosswalks.” This law does not apply in New York City — NYC DOT has superseded it (see page 16 of this pdf, 34 RCNY Section 4-02(e)) under New York City’s delegated authority to legislate with respect to the right of way of vehicles and pedestrians.

Making matters worse, the officers issued summonses returnable to New York City Criminal Court — even though a violation of traffic law was alleged. What did the Criminal Court do with the summonses it was asked to adjudicate for violation of a non-applicable, non-criminal traffic violation?  It dismissed them — of course:

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How the City Council Can Impose Tougher Penalties on Reckless Drivers

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The election of numerous safe streets candidates earlier this month, followed by the exoneration of road-raging cabbie Faysal Himon and the gut-wrenching parade of daily traffic deaths since, create the best opportunity in years to impose meaningful consequences for sober reckless driving.

I have been told by numerous lawyers with state legislative experience that only Albany can tinker with criminal penalties for reckless driving. But I’m not sure that’s true. Outlined below is the case for legislative reform, the authority of the City Council to enact reform, and a proposed bill reflecting what reform should look like.

Why New Laws Instead of Better Enforcement of Existing Laws? Before putting new laws on the books, better to first ask whether existing laws are adequate to punish and deter sober reckless driving. New York State Vehicle and Traffic Law (VTL) Section 1212 — entitled “Reckless Driving” — would seem to fit the bill. It reads:

Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor.

Pretty good, huh? The statutory text requires only that a driver “unreasonably interfere with” or “endanger” another person to be guilty. The offense is classified as a misdemeanor, creating criminal penalties for reckless driving.

Isn’t the answer simply to vigorously enforce this law? No, for three reasons:

  • Despite the clear “causing unreasonable danger/interference” standard spelled out in the statutory text, courts applying it have seized on the word “reckless” in the title of the statute and used it as a reason to smuggle in the entirely foreign penal law concept of recklessness, which requires a finding that the driver “grossly deviated” from “reasonable” conduct. This is a much harder thing to prove, as the Court of Appeals held in People v. Cabrera.
  • Even if a “gross deviation” demonstrating recklessness is found, VTL 1212 does not specify a penalty, and so the default penalty for unclassified misdemeanors applies — a maximum of 30 days in prison and $300 fine.
  • In practice, it is commonplace for judges hearing reckless driving charges to offer the driver an “adjournment in contemplation of dismissal” (ACD) which allows the driver to avoid prison time and a criminal record.

If you have the pleasure of receiving a summons to criminal court for cycling on a bike path or talking back to a cop, you will watch a handful of drivers who received reckless driving charges get off with an ACD and a fine of $100 to $200 (sidewalk cyclists are usually offered, and often take, the same ACD deal with a $50 fine). For a driver who injures or kills a vulnerable street user, an ACD plus a $200 fine is not meaningful punishment or deterrence.

Accepting as true that it is extremely difficult to win legislative reform of traffic laws in Albany, what can city government do?

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Reforming NYPD Crash Investigations: What’s Next?

New Yorkers were outraged to hear yesterday that there may be no criminal charges against cab driver Mohammed Himon, who plowed into a bicyclist and several pedestrians, horribly injuring a woman on the sidewalk. Although yesterday’s NYPD statement was not official, anonymous leaks to the effect that sober drivers who stay at the scene of a crash will face no criminal charges are almost always borne out  — unless the District Attorney conducts its own investigation.

Today brought welcome news that office of Manhattan DA Cy Vance is investigating the crash and has not ruled out charges. Based on the facts as reported to the public to date, a charge of first degree assault is supportable and should be vigorously pursued.

But even if the DA’s office secures a conviction of the driver, the fact remains that many hundreds of crashes involving sober, stay-at-scene drivers who recklessly cause serious injury or death to pedestrians and cyclists typically end with no serious consequences for the driver. These crashes go uninvestigated, under-investigated, and/or unprosecuted, due to the apparent presumption that harm done by a motorist is mere “accidental” negligence — even when there is clear evidence of multiple traffic violations, or road rage, at the root of the harm.

Despite the public outcry over the last two years for meaningful NYPD investigation and charging of non-drunk, stay-at-scene reckless drivers, it appears nothing has changed.  What has brought us to this point?

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