NY State Senate Bill 2009-S463

Senate Bill S463

2009-2010 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to finance
Jan 07, 2009	referred to finance

2009-S463 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Add Art 5-A §§80 - 85, Exec L; rpld & add §228, amd §227, V & T L
Versions Introduced in 2011-2012 Legislative Session:: S2301

2009-S463 (ACTIVE) - Summary

Establishes a separate bureau within the executive department to receive, consider and determine appeals from determinations of hearing officers of the department of motor vehicles traffic violations bureaus; provides for award of expenses to appellant where appeals bureau finds minimum statutory procedures added by this bill have not been followed by traffic violations bureaus, and provides for appeals bureau to issue cease and desist orders to traffic violations bureaus for repeatedly not following minimum statutory procedures for the conduct of hearings; requires cooperation by commissioner of motor vehicles with director of appeals bureau and authorizes appeals bureau to obtain records of the department of motor vehicles and file orders with the department; provides for reports to the governor and legislature on implementation and for recommendations from the director of the traffic adjudications appeals bureau for legislation.

2009-S463 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S463

 TITLE OF BILL :
An act to amend the executive law and the vehicle and traffic law, in
relation to creating a traffic adjudication appeals bureau within the
executive department, and repealing section 228 of the vehicle and
traffic law, relating to administrative review of hearing officer
determinations by department of motor vehicles appeals boards


 SUMMARY :
To reform the traffic administrative adjudication and appeals process
of the Department of Motor Vehicles in order to ensure the equitable
and impartial treatment of all motorists.

 JUSTIFICATION :
In response to hundreds of complaints from motorists and attorneys
about hearing delays, confusing, contradictory and inefficient
procedures and guidelines and inequitable treatment, the NYS Bar'
Association Task Force on Administrative Adjudication studied the
procedures and practices of the system of administrative adjudication
of traffic offenses and 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 the 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:

1) imposes, and attempts to enforce, conviction and fine rates (65%
conviction rate);

2) requires hearing officers to justify acquittals;

3) mandates hearing officers to submit to monthly reviews of their
substantive decisions and their conviction and fine records by
supervisors; and

4) 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, the system must operate efficiently and that the disposition
of each case is fair and based on its own merits. 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 and
removes the appeals process from the department to guarantee the
independence of the senior judges and the integrity of the system.

 FISCAL IMPLICATION :
None.

 EFFECTIVE DATE :
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.

2009-S463 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   463

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the executive law and the vehicle and  traffic  law,  in
  relation  to creating a traffic adjudication appeals bureau within the
  executive department, and repealing section 228  of  the  vehicle  and
  traffic  law,  relating  to  administrative  review of hearing officer
  determinations by department of motor vehicles appeals boards

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.   The executive law is amended by adding a new article 5-A
to read as follows:
                                ARTICLE 5-A
                   TRAFFIC ADJUDICATION APPEALS BUREAU
SECTION 80. APPELLATE ADMINISTRATIVE REVIEW OF TRAFFIC INFRACTION
              ADJUDICATIONS OF CERTAIN TRAFFIC VIOLATIONS BUREAUS.
        81. DIRECTOR OF THE TRAFFIC ADJUDICATION APPEALS BUREAU; POWERS
              AND DUTIES.
        82. APPEALS OFFICERS OF THE TRAFFIC ADJUDICATION APPEALS
              BUREAU.
        83. RIGHT OF APPEAL TO THE TRAFFIC ADJUDICATION APPEALS BUREAU.
        84. REVIEW AND DETERMINATION BY APPEALS BOARD OF THE TRAFFIC
              ADJUDICATION APPEALS BUREAU.
        85. APPEAL PROCEDURES FOR APPEALS TO THE TRAFFIC ADJUDICATION
              APPEALS BUREAU.
  S 80. APPELLATE ADMINISTRATIVE REVIEW OF  TRAFFIC  INFRACTION  ADJUDI-
CATIONS  OF  CERTAIN  TRAFFIC VIOLATIONS BUREAUS. 1. (A) THERE IS HEREBY
CREATED WITHIN THE EXECUTIVE DEPARTMENT A SEPARATE BUREAU WHICH SHALL BE
KNOWN AS THE "TRAFFIC ADJUDICATION APPEALS BUREAU". THE  APPEALS  BUREAU
SHALL  RECEIVE,  CONSIDER  AND  DETERMINE APPEALS FROM DETERMINATIONS OF
HEARING OFFICERS OF TRAFFIC  VIOLATIONS  BUREAUS  DESCRIBED  IN  ARTICLE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD03814-01-9

S. 463                              2

TWO-A  OF  THE VEHICLE AND TRAFFIC LAW. THE CENTRAL OFFICE OF THE BUREAU
SHALL BE LOCATED IN ALBANY, AND REGIONAL OFFICES OF THE BUREAU SHALL  BE
ESTABLISHED AND MAINTAINED IN SUCH NUMBERS AND LOCATIONS AS THE DIRECTOR
OF  THE  BUREAU MAY DETERMINE WITHIN AMOUNTS MADE AVAILABLE BY APPROPRI-
ATION.
  (B) THE HEAD OF THE APPEALS BUREAU SHALL BE A DIRECTOR, WHO  SHALL  BE
APPOINTED  BY  THE  GOVERNOR,  BY AND WITH THE ADVICE AND CONSENT OF THE
SENATE, TO SERVE FOR A TERM OF SIX YEARS, AND UNTIL HIS OR HER SUCCESSOR
HAS BEEN APPOINTED. SUCH DIRECTOR SHALL RECEIVE A  SALARY  IN  THE  SAME
AMOUNT  AS  THAT RECEIVED BY A STATE OFFICER DESIGNATED IN PARAGRAPH (C)
OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-NINE OF THIS CHAPTER.
  2. (A) IN LIEU OF, OR IN ADDITION TO, ANY OTHER GROUNDS FOR APPEAL,  A
PERSON  MAY  APPEAL TO THE APPEALS BUREAU ON THE GROUND THAT ONE OR MORE
MINIMUM PROCEDURES, ESTABLISHED BY OR PURSUANT TO LAW, FOR  THE  CONDUCT
OF  A HEARING FOR THE ADJUDICATION OF A TRAFFIC INFRACTION HAVE NOT BEEN
FOLLOWED.  WHERE THE APPEALS BUREAU FINDS THAT ONE OR MORE OF SUCH MINI-
MUM PROCEDURES FOR THE CONDUCT OF A HEARING FOR THE  ADJUDICATION  OF  A
TRAFFIC  INFRACTION,  ESTABLISHED  BY  OR PURSUANT TO SUBDIVISION ONE OF
SECTION TWO HUNDRED TWENTY-SEVEN OF THE VEHICLE AND  TRAFFIC  LAW,  HAVE
NOT  BEEN  FOLLOWED  BY  THE HEARING OFFICER WHO ADJUDICATED THE TRAFFIC
INFRACTION, OR HAVE NOT BEEN FOLLOWED BY THE TRAFFIC  VIOLATIONS  BUREAU
OR  BY  THE  DEPARTMENT  OR COMMISSIONER OF MOTOR VEHICLES: (I) IT SHALL
AWARD THE APPELLANT HIS OR HER EXPENSES, INCLUDING  AN  AMOUNT  FOR  THE
LOST  TIME,  INCONVENIENCE AND ANNOYANCE, AS WELL AS OUT-OF-POCKET COSTS
AND FEES, IN TAKING SUCH APPEAL TO IT; HOWEVER, THE AMOUNT OF SUCH AWARD
FIXED BY IT SHALL NOT EXCEED  THE  AMOUNT  OF  THE  ORIGINAL  FINE,  AND
PAYMENT OF SUCH AWARD TO THE APPELLANT SHALL NOT BE MADE BY IT BUT SHALL
BE  MADE  BY  THE  DEPARTMENT OF MOTOR VEHICLES UPON THE PRESENTATION TO
SUCH DEPARTMENT OF A VOUCHER ISSUED BY THE APPEALS BUREAU; AND  (II)  IF
THE  APPEALS  BUREAU  HAS  FOUND  OTHER INSTANCES WHERE THE SAME HEARING
OFFICER,  BUREAU,  COMMISSIONER  OR  DEPARTMENT  HAS  NOT  FOLLOWED  THE
REQUIRED  MINIMUM  PROCEDURES  ESTABLISHED BY OR PURSUANT TO LAW FOR THE
CONDUCT OF A HEARING, THE APPEALS BUREAU MAY  ISSUE  AN  ORDER  TO  SUCH
OFFICER,  BUREAU,  COMMISSIONER  AND/OR  DEPARTMENT, TO CEASE AND DESIST
FROM SUCH IMPROPER CONDUCT AND TO COMPLY WITH MINIMUM PROCEDURES  ESTAB-
LISHED BY OR PURSUANT TO LAW.
  (B) THE APPEALS BUREAU SHALL HAVE STANDING TO BRING A PROCEEDING UNDER
ARTICLE  SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES TO COMPEL ANY
SUCH OFFICER, BUREAU, COMMISSIONER AND/OR DEPARTMENT TO COMPLY WITH  ITS
CEASE  AND  DESIST  ORDERS. THE ISSUANCE OF A CEASE AND DESIST ORDER, OR
THE COMMENCEMENT OF AN ARTICLE SEVENTY-EIGHT PROCEEDING, SHALL NOT BE  A
PREREQUISITE  TO  THE  TAKING OF ANY ACTION OR ENFORCEMENT OF ANY REMEDY
OTHERWISE PERMITTED, BUT SHALL BE CUMULATIVE TO ANY OTHER SUCH ACTION OR
REMEDY.
  (C) THE APPEALS BUREAU IS HEREBY EMPOWERED TO COMPEL THE  COMMISSIONER
AND  DEPARTMENT  OF MOTOR VEHICLES TO PRODUCE RECORDS AND OTHER EVIDENCE
RELEVANT AND MATERIAL TO ANY APPEAL, OR RELEVANT  AND  MATERIAL  TO  THE
MAKING OF ANY FINDING AUTHORIZED TO BE MADE BY THIS ARTICLE.
  S  81. DIRECTOR OF THE TRAFFIC ADJUDICATION APPEALS BUREAU; POWERS AND
DUTIES. THE DIRECTOR OF THE TRAFFIC ADJUDICATION APPEALS BUREAU SHALL BE
THE ADMINISTRATIVE HEAD OF THE BUREAU AND SHALL:
  1. APPOINT ONE OR MORE GROUPS OF THREE OR MORE APPEALS OFFICERS  EACH,
WHICH  SHALL  CONSTITUTE  ONE OR MORE APPEALS BOARDS UNDER THE JURISDIC-
TION, SUPERVISION AND CONTROL OF THE APPEALS BUREAU, AND  MAY  PRESCRIBE
THEIR  POWERS  AND  DUTIES  AND FIX THEIR COMPENSATION WITHIN THE AMOUNT

S. 463                              3

APPROPRIATED THEREFOR, SUBJECT TO THE PROVISIONS OF  THE  CIVIL  SERVICE
LAW AND ANY APPLICABLE COLLECTIVE BARGAINING AGREEMENT;
  2.  SELECT A CHAIRMAN FOR EACH APPEALS BOARD FROM THE GROUP OF APPEALS
OFFICERS SO APPOINTED;
  3. DESIGNATE SUCH OTHER PERSONNEL, SUBJECT TO THE  PROVISIONS  OF  THE
CIVIL SERVICE LAW AND ANY APPLICABLE COLLECTIVE BARGAINING AGREEMENT, AS
MAY BE NECESSARY TO ASSIST THE DIRECTOR OF THE APPEALS BUREAU, OR ASSIST
AN APPEALS BOARD, IN CARRYING OUT HIS OR ITS DUTIES.
  S  82.  APPEALS  OFFICERS  OF THE TRAFFIC ADJUDICATION APPEALS BUREAU.
EACH APPEALS OFFICER SHALL HAVE BEEN ADMITTED TO THE PRACTICE OF LAW  IN
THIS STATE AND SHALL NOT BE AN EMPLOYEE OF THE DEPARTMENT OF MOTOR VEHI-
CLES OR DEPARTMENT OF TRANSPORTATION.
  S  83.  RIGHT OF APPEAL TO THE TRAFFIC ADJUDICATION APPEALS BUREAU. 1.
ANY PERSON WHO IS AGGRIEVED BY A DETERMINATION OF A HEARING OFFICER OF A
TRAFFIC VIOLATIONS BUREAU DESCRIBED IN ARTICLE TWO-A OF THE VEHICLE  AND
TRAFFIC  LAW MAY APPEAL SUCH DETERMINATION PURSUANT TO THE PROVISIONS OF
THIS ARTICLE.
  2. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, A TRANSCRIPT  OF  THE
HEARING  RESULTING  IN THE DETERMINATION APPEALED FROM MUST BE SUBMITTED
TO THE TRAFFIC ADJUDICATION APPEALS BUREAU ON ANY SUCH APPEAL.
  3. IF THE ONLY ISSUE RAISED ON APPEAL IS THE  APPROPRIATENESS  OF  THE
PENALTY  IMPOSED,  THE  APPELLANT,  IN  HIS  DISCRETION, MAY SUBMIT SUCH
APPEAL WITHOUT A TRANSCRIPT OF THE HEARING. IN SUCH EVENT, THE  DECISION
OF  THE  APPEALS  BOARD MAY BE BASED SOLELY ON THE APPEAL PAPERS AND THE
RECORDS OF THE DEPARTMENT OF MOTOR VEHICLES AND OF THE  TRAFFIC  ADJUDI-
CATION  APPEALS  BUREAU, AND SUCH DECISION SHALL NOT BE SUBJECT TO JUDI-
CIAL REVIEW.
  4. WHERE A TRANSCRIPT OF THE HEARING  IS  SUBMITTED  AT  THE  TIME  AN
APPEAL  IS FILED, THE DETERMINATION OF THE APPEALS BOARD WILL BE SUBJECT
TO JUDICIAL REVIEW AS PRESCRIBED IN SUBDIVISION FIVE OF SECTION  EIGHTY-
FIVE OF THIS ARTICLE.
  S 84. REVIEW AND DETERMINATION BY APPEALS BOARD OF THE TRAFFIC ADJUDI-
CATION  APPEALS  BUREAU.  1.  EACH APPEAL FILED PURSUANT TO THIS ARTICLE
SHALL BE REVIEWED BY AN APPEALS BOARD, WHICH SHALL MAKE A  DETERMINATION
OF  SUCH  APPEAL,  AND SHALL CAUSE AN APPROPRIATE ORDER TO BE ENTERED IN
THE RECORDS OF THE TRAFFIC  ADJUDICATION  APPEALS  BUREAU.  THE  TRAFFIC
ADJUDICATION  APPEALS  BUREAU SHALL TRANSMIT A COPY OF SUCH ORDER TO THE
COMMISSIONER OF MOTOR VEHICLES, AND SUCH COMMISSIONER SHALL  CAUSE  SUCH
ORDER TO BE ENTERED IN THE RECORDS OF THE DEPARTMENT OF MOTOR VEHICLES.
  2.  NO  APPEAL  SHALL BE REVIEWED IF IT IS FILED MORE THAN THIRTY DAYS
AFTER NOTICE WAS GIVEN OF THE DETERMINATION APPEALED FROM. THE APPELLANT
SHALL SUBMIT TOGETHER WITH SUCH APPEAL A COPY OF THE NOTICE OF  DETERMI-
NATION  ISSUED  BY THE DEPARTMENT OF MOTOR VEHICLES SHOWING THE DATE THE
NOTICE OF DETERMINATION WAS GIVEN.
  S 85. APPEAL  PROCEDURES  FOR  APPEALS  TO  THE  TRAFFIC  ADJUDICATION
APPEALS BUREAU. 1. ANY PERSON DESIRING TO FILE AN APPEAL FROM AN ADVERSE
DETERMINATION PURSUANT TO THIS ARTICLE, SHALL DO SO IN A FORM AND MANNER
PROVIDED  BY  THE  DIRECTOR  OF  THE TRAFFIC ADJUDICATION APPEALS BUREAU
AFTER SUCH DIRECTOR CONSULTS WITH THE COMMISSIONER  OF  MOTOR  VEHICLES.
THE  TRANSCRIPT  OF ANY HEARING WHICH FORMED THE BASIS FOR SUCH DETERMI-
NATION WILL BE REVIEWED ONLY IF IT IS SUBMITTED  BY  THE  APPELLANT.  AN
APPEAL  SHALL  NOT BE DEEMED TO BE FINALLY SUBMITTED UNTIL THE APPELLANT
HAS SUBMITTED ALL FORMS OR DOCUMENTS REQUIRED TO  BE  SUBMITTED  BY  THE
DIRECTOR  OR BY THIS ARTICLE. IF THE APPELLANT IS NOT ABLE TO SUBMIT ANY
REQUIRED FORM OR DOCUMENT BECAUSE OF  THE  REFUSAL  OR  FAILURE  OF  THE
DEPARTMENT  OF  MOTOR  VEHICLES  TO  SUPPLY SUCH FORM OR DOCUMENT TO THE

S. 463                              4

APPELLANT UPON THE APPELLANT'S REQUEST AND  WILLINGNESS  TO  TENDER  ANY
AUTHORIZED  FEE REQUIRED BY SUCH DEPARTMENT, THE APPELLANT SHALL FURNISH
AN AFFIDAVIT OF SUCH FACT TO THE DIRECTOR AND THE DIRECTOR SHALL  COMPEL
THE DEPARTMENT OF MOTOR VEHICLES TO PRODUCE SUCH REQUIRED RECORDS, OR AN
AUTHENTICATED  COPY THEREOF, FREE OF CHARGE FOR USE BY THE TRAFFIC ADJU-
DICATION APPEALS BUREAU OR AN APPEALS BOARD THEREOF UPON THE APPEAL.  IN
SUCH CASE, AN APPEAL SHALL BE DEEMED FINALLY SUBMITTED AS  OF  THE  DATE
THE  DIRECTOR  RECEIVED THE AFFIDAVIT FROM THE APPELLANT THAT THE APPEL-
LANT WAS UNABLE TO OBTAIN A REQUIRED RECORD FROM THE DEPARTMENT OF MOTOR
VEHICLES, PROVIDED THAT ALL OTHER FORMS AND  DOCUMENTS  REQUIRED  TO  BE
SUBMITTED HAVE BEEN SUBMITTED OR SIMILAR AFFIDAVIT GIVEN WITH RESPECT TO
INABILITY TO OBTAIN SAME FROM THE DEPARTMENT OF MOTOR VEHICLES.
  2.  TRANSCRIPTS  OF  THE  RECORD OF ANY HEARING MAY BE OBTAINED AT THE
COST TO THE DEPARTMENT OF MOTOR VEHICLES, IF PREPARED  BY  SUCH  DEPART-
MENT,  OR  AT THE RATE SPECIFIED IN THE CONTRACT BETWEEN SUCH DEPARTMENT
AND THE CONTRACTOR, IF PREPARED BY A PRIVATE CONTRACTOR. THE AMOUNT PAID
AT SUCH COST OR RATE BY A PERSON CONVICTED WHO SUBMITS A  TRANSCRIPT  OF
THE  HEARING  WHICH  RESULTED  IN THE DETERMINATION, UPON AN APPEAL FROM
SUCH DETERMINATION, SHALL BE REFUNDED BY THE DEPARTMENT OF  MOTOR  VEHI-
CLES UPON THE RECEIPT BY IT OF AN ORDER, OR COPY THEREOF, FROM THE TRAF-
FIC ADJUDICATION APPEALS BUREAU DISMISSING THE CHARGES UPON THE DETERMI-
NATION OF SUCH APPEAL.
  3.  THE  FEE  FOR FILING AN APPEAL SHALL BE TEN DOLLARS PAYABLE TO THE
TRAFFIC ADJUDICATION APPEALS BUREAU. NO APPEAL SHALL BE ACCEPTED  UNLESS
THE  REQUIRED  FEE HAS BEEN PAID TO SUCH BUREAU. SUCH FEES SHALL BE PAID
BY SUCH APPEALS BUREAU TO THE DEPARTMENT OF AUDIT  AND  CONTROL  TO  THE
CREDIT  OF THE JUSTICE COURT FUND. AFTER SUCH AUDIT AS SHALL BE REQUIRED
BY THE COMPTROLLER, SUCH FEES SHALL BE CREDITED TO THE GENERAL  FUND  OF
THE STATE.
  4.  (A)  WHENEVER A DETERMINATION HAS NOT BEEN MADE WITHIN THIRTY DAYS
AFTER AN APPEAL HAS BEEN FINALLY SUBMITTED, A STAY OF EXECUTION WILL  BE
DEEMED GRANTED BY OPERATION OF LAW, AND THE LICENSE, CERTIFICATE, PERMIT
OR  PRIVILEGE  AFFECTED  WILL  BE  AUTOMATICALLY  RESTORED PENDING FINAL
DETERMINATION.
  (B) THE COMMISSIONER OF MOTOR VEHICLES SHALL COOPERATE WITH THE DIREC-
TOR OF THE APPEALS BUREAU IN DEVISING MEANS OF COMMUNICATION BETWEEN THE
DEPARTMENT OF MOTOR VEHICLES AND THE TRAFFIC ADJUDICATION APPEALS BUREAU
TO EFFECTUATE THE PURPOSES AND PROVISIONS OF THIS  ARTICLE.  SUCH  MEANS
MAY  INCLUDE,  BUT  SHALL  NOT BE LIMITED TO, A COMPUTER NETWORK WHEREBY
INFORMATION MAY BE SHARED, EXCHANGED AND/OR INPUTTED BY AND BETWEEN  THE
DEPARTMENT  OF  MOTOR  VEHICLES  AND  THE  TRAFFIC  ADJUDICATION APPEALS
BUREAU. IF SUCH A NETWORK IS ESTABLISHED, ANY NOTICE OR RECORD  REQUIRED
TO  BE  PRODUCED  BY, OR SENT BY OR TO, THE DEPARTMENT OF MOTOR VEHICLES
MAY BE TRANSMITTED BY MEANS OF SUCH NETWORK.
  5. (A) NO DETERMINATION OF A HEARING OFFICER WHICH IS APPEALABLE UNDER
THE PROVISIONS OF THIS ARTICLE SHALL BE REVIEWED IN ANY COURT UNLESS  AN
APPEAL HAS BEEN FILED AND DETERMINED IN ACCORDANCE WITH THIS ARTICLE.
  (B)  A  DETERMINATION  OF  THE APPEALS BOARD IN ANY CASE WHERE A TRAN-
SCRIPT OF THE HEARING HAS BEEN SUBMITTED  SHALL  BE  SUBJECT  TO  REVIEW
PURSUANT  TO  THE PROVISIONS OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
TICE LAW AND RULES. PROVIDED, HOWEVER, A STATEMENT BY THE APPEALS  OFFI-
CER  AT  THE  CONCLUSION OF THE HEARING INDICATING THAT THE CHARGES HAVE
BEEN SUSTAINED AND ANNOUNCING  THE  PENALTY  IMPOSED,  TOGETHER  WITH  A
SUMMARY OF THE REASONS THE APPEAL WAS DENIED BY THE APPEALS BOARD, SHALL
CONSTITUTE SUFFICIENT FINDINGS FOR THE PURPOSE OF SUCH REVIEW.

S. 463                              5

  S  2. Section 228 of the vehicle and traffic law is REPEALED and a new
section 228 is added to read as follows:
  S  228.  ADMINISTRATIVE  REVIEW. ADMINISTRATIVE REVIEW OF THE DETERMI-
NATION OF A HEARING OFFICER SHALL BE HAD BY MEANS OF AN  APPEAL  TO  THE
TRAFFIC  ADJUDICATION  APPEALS  BUREAU  IN  THE EXECUTIVE DEPARTMENT, AS
PROVIDED IN ARTICLE FIVE-A OF THE EXECUTIVE LAW.  THE  COMMISSIONER  AND
DEPARTMENT  SHALL  COOPERATE  AND  RENDER  ASSISTANCE: (A) TO ANY PERSON
CONVICTED OF A TRAFFIC INFRACTION UPON THE DETERMINATION  OF  A  HEARING
OFFICER,  WHO WISHES TO APPEAL SUCH DETERMINATION TO THE APPEALS BUREAU,
BY PROVIDING FORMS, INSTRUCTIONS AND  RECORDS,  SUITABLE  TO  FILE  SUCH
APPEAL  WITH THE APPEALS BUREAU, IN COOPERATION WITH THE REQUIREMENTS OF
THE DIRECTOR OF THE APPEALS BUREAU; AND  (B)  TO  THE  DIRECTOR  OF  THE
APPEALS  BUREAU  TO  IMPLEMENT  THE  PURPOSES  AND PROVISIONS OF ARTICLE
FIVE-A OF THE EXECUTIVE LAW.
  S 3. Subdivision 1 of section 227 of the vehicle and traffic  law,  as
amended  by  chapter  337  of  the  laws  of 1970, is amended to read as
follows:
  1. (A) Every hearing for the adjudication of a traffic infraction,  as
provided  by  this  article,  shall  be  held  before  a hearing officer
appointed by the commissioner. The burden of proof  shall  be  upon  the
people,  and no charge may be established except by clear and convincing
evidence. The commissioner [may] SHALL prescribe, by rule or regulation,
the procedures for the conduct of such hearings.
  (B) SUCH PROCEDURES FOR THE CONDUCT OF SUCH HEARINGS SHALL, AT A MINI-
MUM:
  (I)  PROHIBIT  THE  COMPILING  OF  PERIODIC  STATISTICS   ESTABLISHING
CONVICTION RATES.
  (II)  PROHIBIT THE REVIEW OR RATING OF HEARING OFFICERS BASED UPON ANY
CONVICTION RATE.
  (III) PROHIBIT ANY REQUIREMENT THAT HEARING OFFICERS  PROVIDE  TO  THE
COMMISSIONER  OR  TO  ADMINISTRATIVE  OR  SUPERVISORY  EMPLOYEES  OF THE
DEPARTMENT GREATER OR ANY DIFFERENT  JUSTIFICATION  FOR  THEIR  DETERMI-
NATIONS  THAT  THE CHARGES HAVE NOT BEEN ESTABLISHED FROM THEIR DETERMI-
NATIONS THAT THE CHARGES HAVE BEEN ESTABLISHED.
  (IV) PROHIBIT HEARING OFFICERS FROM USING  LEADING  QUESTIONS  IN  THE
DIRECT EXAMINATION OF POLICE OFFICERS.
  (V)  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.
  (VI) REQUIRE  THAT  THE  RULES  OF  EVIDENCE  BE  ADHERED  TO  IN  ALL
PROCEEDINGS IN WHICH EITHER SIDE IS REPRESENTED BY COUNSEL.
  S  4. a. The director of the traffic adjudication appeals bureau shall
report annually on or before the thirty-first of January, beginning with
the calendar year next succeeding the year this act takes effect, to the
governor, the majority leader of the senate,  and  the  speaker  of  the
assembly,  evaluating  the functioning and operations of the new traffic
adjudication appeals bureau created by this act.
  b. Each annual report shall specifically address how well  the  imple-
mentation  of  this  act  alleviates  the problems and criticisms of the
former administrative adjudication system of  the  state  department  of
motor  vehicles,  described  by the task force on administrative adjudi-
cation of the New York state bar association in its  report  dated  July
14, 1988.

S. 463                              6

  c.  Each  such  report  also shall contain statistical tabulations and
appropriate commentary thereon, showing,  for  each  traffic  violations
bureau:
  (i) the total number of appeals received by the new appeals bureau;
  (ii)  the  number  of appeals in which it was alleged that one or more
minimum procedures, established by or pursuant to law, for  the  conduct
of  a hearing for the adjudication of a traffic infraction have not been
followed and the number of such appeals in which these allegations  were
found  to  have  any  merit  (the  success rate) and where found to have
merit, the total amount awarded to all appellants  for  their  expenses,
out-of-pocket  costs and fees, pursuant to subparagraph (i) of paragraph
(a) of subdivision 2 of section 80 of the executive  law,  as  added  by
this act;
  (iii)  the number of cease and desist orders issued by the new appeals
bureau pursuant to subparagraph (ii) of paragraph (a) of  subdivision  2
of  section 80 of the executive law, as added by this act, the reason or
reasons such orders were issued, and the number of  proceedings  brought
by  the new appeals bureau, pursuant to article 78 of the civil practice
law and rules, to enforce its cease and desist orders;
  (iv) the number of, and a description of,  any  other  enforcement  or
persuasion mechanisms utilized;
  (v)  an  assessment  of  the  degree  of  compliance  by  each traffic
violations bureau with the minimum procedures established by or pursuant
to law for the conduct of  hearings  for  the  adjudication  of  traffic
infractions,  based, in part, upon the number of complaints received and
how such complaints were (or were not) resolved; and
  (vi) any other relevant facts, statistics and commentary with  respect
to the foregoing.
  In  addition,  the director of the traffic adjudication appeals bureau
may propose to the legislature the consideration or  enactment  of  such
additional  legislation as in his or her opinion will further address or
alleviate the problems and  criticisms  found  in  the  above-referenced
report of the bar association task force.
  S  5. This act shall take effect on the first of January next succeed-
ing the date on which it shall  have  become  a  law  and  sections  one
through  three of this act shall apply by the  terms of this act only to
appeals which are finally submitted or deemed to be finally submitted on
or after the effective date of this act;  provided,  however,  that  the
provisions  of  section  228  of the vehicle and traffic law repealed by
section two of this act shall continue to apply to any appeal  which  is
finally  submitted or deemed to have been finally submitted to a depart-
ment 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 of competent jurisdiction pursuant to a
proceeding under article 78 of the civil practice law  and  rules  which
has  not yet been re-submitted to a department of motor vehicles 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.

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