THE NUTS AND BOLTS OF DMV FATALITY HEARINGS

DONNA L. BURDEN, ESQ. HURWITZ & FINE, P.C. 1300 LIBERTY BUILDING BUFFALO, NEW YORK 14202 (716) 849-8900
In 1998, there were approximately 1,500 deaths from motor vehicle accidents in New York. In almost all such cases, the Commissioner of Motor Vehicles (DMV) holds administrative hearings to investigate the cause of the accidents and to determine whether drivers’ licenses should be suspended or revoked. These safety hearings, commonly referred to as Fatality Hearings or Fatal Accident Hearings, are governed by Vehicle & Traffic Law §510. The purpose of Fatality Hearings is to determine if a driver operated a motor vehicle “in a manner showing a reckless disregard for life or property of others” in violation of Vehicle & Traffic Law §510(3)(e) and whether to impose license suspension or revocation. The State Administrative Procedure Act, Article 3, and the Regulations of the Commissioner, 15 N.Y.C.R.R. Part 127, “Safety Hearings,” set forth the procedures for the hearings. Under these rules, hearings must be commenced within six months from the date of death. At least two weeks before the hearing date, notices are mailed to the driver’s last known address on file with the DMV. The notices are presumed received unless returned by the post office. Each notice must provide the time, place and nature of the hearing. The notice must also state that parties may be represented by counsel and that interpreters for the hearing impaired will be provided at no charge. Parties may appear with counsel, but are not entitled to representation because the proceeding is administrative, not criminal. Thus, there is no right to assigned counsel. Parties may be represented by non-attorneys at the discretion of Administrative Law Judge (ALJ) assigned to hear the matter. Witnesses or other interested parties may also be represented by counsel, but their right to question witnesses may be restricted if the ALJ deems such questioning irrelevant or unduly repetitive. The Commissioner has the burden of proving a violation of the Vehicle & Traffic Law. The ALJ’s determination must be supported by “substantial evidence,” which is defined as such relevant evidence as reasonable minds would accept as adequate. It has been described as something less than a “preponderance of the evidence” standard but more than mere surmise, conjecture or speculation. The hearing process is informal and rules of evidence observed by courts of law are inapplicable. For example, hearsay evidence may be considered by the ALJ in reaching a determination. Privileges afforded under CPLR Article 45, (e.g., self-incrimination, spousal communications, and attorney-client communications) apply in these proceedings. An assertion of the Fifth Amendment right to remain silent at the hearing may not serve as a basis for the Commissioner to impose penalties; however, an ALJ may draw a negative inference from a party’s failure to testify.

but the ALJ may disallow their use if deemed disruptive to the hearing. ALJs may announce a decision at the conclusion of the hearing or reserve decision for a later time. Requests to adjourn a hearing should be directed to the ALJ or the Safety Hearing Bureau at least seven days before the scheduled hearing date. arrangements may be made with the ALJ directly or with the Safety Hearing Bureau. disposition. There is no statutory or regulatory prohibition against the use of stenographers. Since the standard of proof at a Fatality Hearing is less than the “preponderance of evidence” standard required in a civil action. Upon receipt of the demand. The testimony of witnesses may be used in subsequent actions for impeachment purposes and should therefore be requested in any related civil action. Parties may review non-confidential information in the hearing file before the hearing. parties may serve a demand for decision.There is no right to pre-trial discovery at the hearing. but only after the administrative review process is exhausted. which includes findings of fact. The determination is subject to judicial review in a proceeding under CPLR Article 78. The hearings are typically tape-recorded and certified transcripts are provided at the requester’s expense. although a timely request for rehearing may be made. Hearings may not be broadcast. All evidence becomes a part of the record. If it is not sent within that time. Testimony and evidence may nevertheless be entered into the record. Objections may be asserted throughout the proceeding and should be noted in the record. the ALJ has 45 days to render a decision or the charges are deemed dismissed. The ALJ determines the order of proof. Subpoenas requiring the attendance of witnesses and the production of documents and other evidence may be issued by the ALJ at the request of any party or by an attorney for any party. The transcript of the hearing will only be reviewed on appeal if it is submitted to the Appeals Board. If made less than seven days before the hearing. and will generally not be granted. filmed or videotaped. Depending on the timing of the request and the location of the file. . and penalties. the ALJ’s finding is not subject to res judicata or collateral estoppel. Testimony is taken under oath or affirmation and witnesses may be excluded while others testify. the request must be made to the ALJ directly. must be sent to the parties and their representatives within 45 days of the conclusion of the hearing. conclusions of law. A written determination. Failure to appear at the hearing is deemed a waiver. All parties (or their representatives) and the ALJ may question witnesses. A driver may appeal a license suspension or revocation by filing a notice of appeal and a $10 filing fee with the DMV Appeals Board within 60 days following written notice of the determination.

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