PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

This is a consensus rule making to amend Part 134 of Title 15 NYCRR.

Clarification of the rules regarding ineligibility of certain individuals for a pre-conviction conditional license (PCCL).

To clarify that a motorist will be ineligible for a PCCL if they have 2 or more prior alcohol-related driving convictions.

Paragraph (11) of subdivision (a) of section 134.7 is amended to read as follows:

(11) (a) The person has three or more alcohol-related convictions or incidents within the last ten years. For the purposes of this paragraph, a conviction for a violation of section 1192 of the Vehicle and Traffic Law, and/or a finding of a violation of section 1192-a of such law and/or a finding of refusal to submit to a chemical test under section 1194 of such law arising out of the same incident shall only be counted as one conviction or incident. The date of the violation or incident resulting in the conviction or a finding as described herein shall be used to determine whether three or more convictions or incidents occurred within a 10 year period.

(b) For the purposes of this paragraph, when determining eligibility for a conditional license issued pending prosecution pursuant to section 134.18 of this Part, the term “incident” shall include the arrest that resulted in the issuance of the suspension pending prosecution.

Monica J Staats, NYS Department of Motor Vehicles, Legal Bureau, Room 526, 6 Empire State Plaza, Albany, NY 12228, (518) 474-0871, email: [email protected]

Dinah Crossway, NYS Department of Motor Vehicles, Legal Bureau, Room 526, 6 Empire State Plaza, Albany, NY 12228, (518) 474-0871, email: [email protected]

45 days after publication of this notice.

The proposed amendment is necessary to clarify the application of a long-standing rule, set forth in Part 134.7(a)(11), regarding ineligibility for a conditional license issued by the Department of Motor Vehicles (DMV) to a motorist who has been twice convicted of an alcohol-related driving offense and whose driver’s license has been suspended pending prosecution pursuant to Vehicle and Traffic Law (VTL) section 1193(2)(e)(7).

Vehicle and Traffic Law section 1193(2)(e)(7) requires that a court suspend a motorist’s license pending prosecution: (1) where the motorist is charged with certain VTL section 1192 violations and is alleged to have a blood alcohol content of.08 % or higher, and/or (2) where the motorist is charged with certain VTL section 1192 violations and was the holder of a junior driver’s license. A motorist whose license has been suspended pending prosecution may be eligible for a conditional license that affords certain limited driving privileges during this pre-conviction suspension period. This type of conditional license is commonly referred to as a pre-conviction conditional license (“PCCL”); DMV may also issue conditional licenses to eligible motorists following conviction for a VTL section 1192 violation. The same eligibility criteria are applied by DMV in determining motorist eligibility for PCCLs and post-conviction conditional licenses (with the exception that enrollment in a driving driver program is not a requirement for PCCL-issuance).

The regulations clearly state that a motorist who has had three or more alcohol-related convictions or incidents within the preceding ten years shall not be eligible for a post conviction conditional license (See § 134.7(a)(11)). The purpose of this amendment is to clarify that and memorialize DMV’s current practice which is to deny pre-conviction conditional license issuance to a motorist who, within 10 years of a suspension pending prosecution, has two prior alcohol-related convictions because the arrest giving rise to the suspension pending prosecution is considered an incident under 134.7(a)(11).

Since this proposed rule simply clarifies an existing rule, it is submitted as a consensus rulemaking.

A Job Impact Statement is not submitted with this proposed rule because it would not have an adverse impact on job development in New York State.