Creates a traffic adjudication appeals bureau in executive department for appeals from traffic violations bureau; repealer

Summary of specific provisions

This bill would create within the executive department a traffic adjudication appeals bureau to receive, consider and determine appeals from hearing officer determinations in the traffic violations bureaus. Under the proposed law, the director of the bureau, who shall be appointed by the governor with the advice and consent of the Senate to a term of six years, will supervise the administration and operation of the appeals bureau. The director of the appeals bureau, will be authorized to appoint one or more groups of three or more appeals officers, which shall constitute one or more appeals boards, and to prescribe their powers and duties. A chair for each board shall be selected by the director. The appeals officers must be attorneys admitted to practice in New York and not be employees of the DMV or the Department of Transportation.

In addition to or in lieu of any other grounds for appeal, as described in article two-A of the vehicle and traffic law, a motorist may appeal to the new bureau on the grounds that one or more of the minimum statutory procedures for the conduct of a hearing for a traffic infraction, as outlined in the bill, have not been followed. To provide for the fair and impartial hearing of a traffic violation, the Commissioner of the Department of Motor Vehicles shall be required to prescribe by rule or regulation the procedures for the conduct of such hearings. At a minimum, such procedures shall: Prohibit the compiling of periodic statistics establishing conviction rates. Prohibit the review or rating of hearing officers based upon any conviction rate. Prohibit any requirement that hearing officers provide greater or any different justification for an acquittal than for a conviction. Prohibit hearing officers from using leading questions in the direct examination of police officers. Require the hearing officer to advise the accused of his right to remain silent and his right to be represented by counsel, and where appropriate, to explain the elements of the offense and available defenses for an accused who is not represented by counsel. Re quire that the rules of evidence be adhered to in all proceedings in which either side is represented by counsel. The bureau shall be empowered to compel the commissioner and department to produce records and other

evidence relevant to the appeal. Where the appeals bureau finds that one or more minimum statutory procedures for the conduct of a hearing have not been followed by the hearing officer, the traffic violations bureau or by the department or commissioner, the bureau shall be empowered to award the appellant compensation for his or her expenses in pursuing such an appeal. The payment of such an award shall not exceed the amount of the original fine and shall be made by the Department of Motor Vehicles upon presentation of a voucher issued by the appeals bureau.

If the appeals bureau finds other instances whereby the minimum statutory protections or procedures of conduct have not been adhered to, the appeals bureau shall be empowered to issue an order to cease and desist from such improper conduct and to comply with the procedures established by law. The provisions concerning the right of appeal, appeal procedures and time limitations, judicial review, transcripts and fees that currently appear in section two hundred twenty-eight of the vehicle and traffic law have been incorporated into Article 5-A of the executive law, as established by the legislation. In addition to the above provisions, the bill mandates that the director report annually to the Governor, the Speaker and the Majority leader of the Senate evaluating the functioning and operations of the new traffic adjudication appeals bureau. Each report shall address how well the implementation of this act alleviates the problems and criticisms of the former adjudication system. Each report shall also contain statistical information concerning the total number of appeals received by the bureau; the number of appeals in which it was alleged that one or more minimum procedures for the conduct of a hearing were not followed and the number of appeals in which these allegations were found to have merit; the total amount awarded to appellants for their expenses and the number of cease and desist orders issued by the appeals bureau. Furthermore, the report shall include an assessment of the degree of compliance by each traffic violations bureau with the minimum procedures for the conduct of hearings.

Effects of present law which this bill would alter

The Executive Law is amended by adding a new article 5-A. The Vehicle and Traffic Law is amended as section two hundred twenty-eight is repealed and a new section two hundred twenty-eight is added. In addition, subdivision one of section two hundred twenty-seven is amended.

Justification

In response to hundreds of complaints from motorists and attorneys about hearing delays, confusing, contradictory and inefficient procedures and guidelines and unequitable treatment, the NYS Bar Association Task Force on Administrative Adjudication studied the procedures and practices of the system of administrative adjudication of traffic offenses to determine whether the system provides due process and due consideration to motorists. After an 11 month investigation, the panel concluded that the courts operate "in a fashion that is unfair, both in fact and in appearance to the average motorist."

The task force found that the most compelling issue confronting the administrative adjudication process is undue and improper administrative interference. While individual administrative law judges are attempting to adjudicate the cases on the merits, they are prevented from doing so because of a system that: imposes, and attempts to enforce, conviction and fine rates; requires hearing officers to justify acquittals; mandates hearing officers to submit to monthly reviews of their substantive decisions and their conviction and fine records by supervisors; and, requires hearing officers to excuse police laxity in the prosecution and presentation of cases. With approximately 2 million complaints and some 600,000 hearings held annually, it is not only imperative that the system operate efficiently, but also that the disposition of each case is fair and based on merit. The system must not only be equitable but also must be perceived to be so by the residents of this State.

Thus, this bill would reform the adjudication system at the Department of Motor Vehicles by mandating the promulgation of rules and regulations governing the conduct of each hearing to promote due process. Furthermore, the legislation removes the appeals process from the department to guarantee the independence of the senior judges and the integrity of the system.

Effective date

The first of January next succeeding the date on which this act shall become law and shall apply by its terms only to appeals which are finally submitted or deemed finally submitted on or. after the effective date of this act. However, the provisions of section two hundred twenty-eight of the VTL repealed by this act shall continue to apply to any appeal which is finally submitted to a department of motor vehicles appeals board before the effective date of this act, but only until such appeal is determined by such appeals board; and any remand ordered by a court which has not yet been resubmitted to a department appeals board before the effective date of this act, shall be referred to the traffic adjudication appeals bureau in the executive department for redetermination pursuant to the order of remand.