(e)(1) [In] Except as provided for in paragraphs (2) and (3) of this subdivision, in any case where an adjournment is granted, any suspension or revocation of a license, permit or privilege already in effect may be continued pending the adjourned hearing. In addition, in the event no such action is in effect, a temporary suspension of such license, permit or privilege may be imposed at the time the adjournment is granted provided that the records of the department or the evidence already admitted furnishes reasonable grounds to believe such suspension is necessary to prevent continuing violations or a substantial traffic safety hazard.

(2) Adjournment of a chemical test refusal hearings held pursuant to Vehicle and Traffic Law section 1194. Where an adjournment of a chemical test refusal hearing is granted at the request of the respondent, any suspension of a respondent's license, permit or privilege already in effect shall be continued pending the adjourned hearing. In addition, in the event no such suspension is in effect when the adjournment is granted, a temporary suspension of such license, permit or privilege shall be imposed and shall take effect on the date of the originally scheduled hearing. Such suspension shall not be continued or imposed if the hearing officer affirmatively finds, on the record, that there is no reason to believe that the respondent poses a substantial traffic safety hazard and sets forth the basis for that finding on the record.

(3) Continuance of a chemical test refusal hearing held pursuant to Vehicle and Traffic Law section 1194. If a chemical test refusal hearing is continued at the discretion of the hearing officer, in order to complete testimony, to subpoena witnesses or for any other reason, and if the respondent's license, permit or privilege was suspended pending such hearing, such suspension shall remain in effect pending the continued hearing unless the hearing officer affirmatively finds, on the record, that there is no reason to believe that the respondent poses a substantial traffic safety hazard and sets forth the basis for that finding on the record. If respondent's license, permit or privilege was not suspended pending the hearing, the hearing officer may suspend such license, permit or privilege, based upon the testimony provided and evidence submitted at such hearing, if the hearing officer affirmatively finds, on the record, that there is reason to believe that the respondent poses a substantial traffic safety hazard and sets forth the basis for that finding on the record.

(4) In addition to any grounds for suspension authorized pursuant to paragraphs (2) and (3) of this subdivision, a hearing officer must impose a suspension or continue a suspension of a respondent's driver's license, pursuant to paragraphs (2) and (3) of this subdivision, if the respondent's record indicates that:

(i) The person has been convicted of homicide, assault, criminal negligence or criminally negligent homicide arising out of the operation of a motor vehicle.

(ii) The person has two or more revocations and/or suspensions of his driver's license within the last three years, other than a suspension that may be terminated by performance of an act by the person.

(iii) The person has been convicted more than once of reckless driving within the last three years.

(iv) The person has three or more alcohol-related incidents within the last ten years, including any conviction of Vehicle and Traffic Law section 1192, any finding of a violation of section 1192-a of such law, and a refusal to submit to a chemical test. If a refusal that arises out of the same incident as a section 1192 conviction, this shall count as one incident.

Subdivision (b) of section 127.9 is amended to read as follows:

(b) If no adjournment has been granted, and the respondent fails to appear for a scheduled hearing, the [hearing officer may take the testimony of the arresting officer and any other witnesses present and consider all relevant evidence in the record. If such testimony and evidence is sufficient to find that respondent refused to submit to a chemical test, the hearing officer shall revoke the respondent's driver's license, permit or privilege of operating a vehicle] respondent's failure to appear shall be deemed to be a waiver of hearing. [If, following such a determination, respondent petitions] Respondent may petition for a rehearing, pursuant to section 127.8 of this Part and section 1194-2(c) of the Vehicle and Traffic Law. If such a rehearing is granted, it shall be the responsibility of the respondent to insure the presence of any witness he or she wishes to question or cross-examine.

Subdivisions (b) and (c) of section 139.4 are amended to read as follows:

(b) Time of hearing. The refusal hearing shall commence at the place provided in the notice of hearing form and as close as practicable to the designated time. If the hearing cannot be commenced due to the absence of a hearing officer or unavailability of the planned hearing site, it will be rescheduled by the department, with notice to the police officer and person accused of the refusal. Adjournment requests for hearings held pursuant to section 1194 of the Vehicle and Traffic Law shall be considered in accordance with Parts 127.7 and 127.9 of this Title. All other requests for adjournments shall be addressed to the hearing officer, who may order a temporary suspension of the license, permit, nonresident operating privilege, or privilege of operating a vessel or snowmobile pursuant to law and Part 127 of this Title.

(c) Waiver of hearing. A person may waive, in writing, the right to a chemical test refusal hearing. Any such waiver shall constitute an admission that a chemical test refusal occurred as contemplated by section 1194 of the Vehicle and Traffic Law, section 25.24 of the Parks, Recreation and Historic Preservation Law, or section 49-a of the Navigation Law, as the case may be, and such waiver shall result in administrative sanctions provided by law for the chemical test refusal. Failure to appear at a scheduled hearing shall also constitute a waiver; however, the person who failed to appear may make a written request to the commissioner for a rescheduled hearing to be held as soon as practicable in accordance with Part 127.8 of this Title.

1. Statutory authority: Vehicle and Traffic Law (“VTL”) Section 215(a) authorizes the Commissioner to enact and amend regulations to control and regulate the exercise of the powers of the Department of Motor Vehicles (DMV) and the performance of the duties of officers, agents and other employees thereof. VTL Section 510(3-a) authorizes a hearing officer to suspend a license pending a hearing. VTL Section 1194(2)(c) provides that the Commissioner is authorized to establish a hearing schedule for the adjudication of chemical test refusals. VTL Section 1194(2)(e) provides that the Commissioner shall promulgate rules and regulations as may be necessary to effectuate the provisions of such section in relation to chemical test refusal hearings.

2. Legislative objectives: The Legislature enacted Vehicle and Traffic Law (“VTL”) Section 1194 to provide for the fair and efficient adjudication of chemical test refusals by DMV's hearing officers. This section authorizes the Commissioner to establish a schedule of hearings and to promulgate regulations related thereto, including provisions for the adjournment and continuance of such hearings. In addition, pursuant to VTL Section 510(3-a), a hearing officer is authorized to suspend a driver's license pending a hearing, which is typically done when the licensee poses a highway safety risk to the general public.

This proposal accords with the legislative objectives of permitting the adjournment and continuation of chemical test refusal hearings while requiring hearing officers to suspend driver's licenses pending such adjournments and continuances in order to preserve the public safety. The proposal strikes a balance between the need to accommodate motorists and their attorneys, while insuring that adjournments and continuances are not used as a tool to delay justice or to allow a potentially high risk motorist to operate on our highways.

3. Needs and benefits: This regulation will benefit the general motoring public by prohibiting licensees with poor driving records from operating on our State's highways, under certain circumstances, when a chemical test refusal hearing is adjourned or continued. A person who has refused a chemical test has not only shown a disregard for the law by refusing to submit to the test, but has also been charged with, and sometimes convicted of, a criminal offense related to driving while intoxicated. Often, such individuals have prior alcohol convictions and/or other convictions on their driving record that indicate that they pose a risk to the general motoring public. This proposed regulation sets forth reasonable standards that require a DMV hearing officer to suspend a driver's license pending an adjourned or continued hearing in order to keep dangerous drivers off our highways.

This proposal is also beneficial to attorneys and their clients (the hearing respondent), because they are put on notice as to when a driver's license will be suspended when a hearing is adjourned or continued. Currently, the hearing officer has broad discretion about when to suspend a license and there is a presumption that the license will not be suspended unless the hearing officer finds that the suspension is “necessary to prevent continuing violations or a substantial traffic safety hazard.” This proposal reverses the presumption and provides that a suspension shall be imposed unless the hearing officer affirmatively finds, on the record, that the respondent does not pose a traffic safety hazard. In addition, the proposal provides that a suspension must be imposed if the respondent's driving record contains certain incidents or convictions, such as a conviction for assault or homicide, more than one reckless driving conviction within a three year period, or three or more alcohol-related incidents within a ten year period. Using this criteria, a hearing officer's determination about whether to suspend will be more predictable and consistent.

The amendments to Part 139 are merely technical cross-references to the amendments set forth in Part 127.

In sum, this regulation is necessary to establish reasonable, fair and consistent guidelines for the suspension of driver's license pending the adjournment or continuance of a chemical test refusal hearing.

4. Costs: There would be no additional costs to the public, the State, DMV or to local governments. DMV already has a system in place for scheduling chemical test refusal hearings.

Source: DMV's Safety Hearing Bureau

5. Local government mandates: This proposal imposes no local government mandates.

6. Paperwork: This proposal will require no revision to forms or other paperwork.

7. Duplication: This proposal does not duplicate any federal or state laws or rules.

8. Alternatives: A no action alternative was not considered. No other alternatives were considered.

9. Federal standards: The rule does not exceed any minimum standards of the federal government.

10. Compliance schedule: Compliance will be immediate.

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with these proposed amendments because they have no adverse or disproportionate impact on small businesses or local governments.

A Rural Area Flexibility Analysis is not submitted with this proposed rule because it has no adverse or disproportionate impact on rural areas of the State.

A Job Impact Statement is not submitted with this proposed rule because it has no adverse impact on job development or creation in the State.