DMV Scrambles to Contain Scandal of Wrongful Bike Penalties

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Last Friday, New York State DMV responded to mounting evidence that it has been systematically cheating cyclists by imposing motorist-only surcharges and license points for bicycling violations, contrary to state law. The problem was first brought to DMV’s attention on August 12, in a Streetsblog post. DMV admitted that it was violating the law and agreed to refund the improper surcharge to two cyclists, but did not indicate that it would do the same for other cyclists, or change its procedures going forward.

On September 2, State Senator Brad Hoylman wrote a letter to DMV Commissioner Barbara Fiala demanding that she respond to the August 12 charges against the DMV in Streetsblog. Then on September 17, I filed suit against the DMV on behalf of six cyclists as putative representatives of a statewide class of thousands of cyclists who faced excessive and improper penalties for bicycling violations.

DMV finally broke its month-long silence by responding to Senator Hoylman in a letter delivered last Friday. Commissioner Fiala’s letter details DMV’s extensive efforts to identify all of the cyclists affected by improper ticket coding. DMV says it has reviewed 25 years’ worth of bicycle traffic tickets — including 50,000 bicycle tickets issued in the last five years alone.

Commissioner Fiala states that DMV has taken the following steps to remedy the “regrettable” miscoding of bicycle tickets:

  • Paying refunds to 84 cyclists improperly required to pay motorist-only surcharges
  • Removing penalty points improperly applied to the licenses of 222 cyclists
  • Recoding 570 pending tickets issued for cycling violations that had been miscoded as motor vehicle violations
  • Making plans to issue a memo to law enforcement officials to reduce the incidence of future miscoding of cycling tickets
  • Making plans to change internal DMV procedures used to identify bicycle tickets
  • Making plans to add language to form UT-60 and to the DMV website to advise cyclists that they are not subject to surcharges or penalty points

These are important and welcome steps to help correct the problem. Cyclists owe great thanks to Senator Hoylman for focusing Commissioner Fiala’s attention on the problem, and to the commissioner for her willingness to admit mistakes and to take the problem seriously.

Nonetheless, it appears that DMV’s efforts have only scratched the surface.

More than 84 cyclists subject to the improper surcharges have already directly contacted us as plaintiff’s counsel in the lawsuit. While it does appear that a number of cyclists with pending tickets have had them recoded so that the penalties for pleading guilty are appropriate, reports received by our office suggest that many improperly-coded tickets, paid and unpaid, remain unaddressed.

Our office has also received reports of cyclists forced to pay the mandatory surcharge even after the remedial steps described in Fiala’s letter. We have learned that some cyclists received added charges of $300 — called “Driver Responsibility Assessments” — based simply on the penalty points for cycling tickets that never should have been applied in the first place. DMV’s response does not address these continuing problems.

Because significant work remains to be done to resolve the problem, we have amended and will proceed with the class action suit Cohen v. State of New York. We will pursue the lawsuit until an enforceable, written resolution of the problem is reached that will ensure a remedy for every improperly penalized cyclist that can be identified. The plaintiffs’ amended complaint, filed today, is available here.

Speak up in the comments if you have received a refund or had your ticket recoded.  If you are still owed a refund of the surcharge you paid, or if your bicycle ticket is still coded as a motorist ticket, let us know at Vaccaro & White.

  • Guest

    Will auto insurance companies retroactively issue refunds to the cyclists who paid extra for auto insurance because of the incorrect penalty points?

  • SteveVaccaro

    I highly doubt it!

  • camp6ell

    Confirming my ticket of 9/10/14 had “mandatory surcharge” removed and 0 penalty points applied, according to the DMV website when I paid online last night. Thanks Steve.

  • SteveVaccaro

    Glad to hear it!

  • jimmy james

    Steve Vaccaro is badass! Very cool.

  • Mr. Vaccaro, may I ask for your opinion on a bike issue that is not directly related to this?

    A few weeks ago, I mentioned in a comment to another thread that bus lanes often provide good bike-riding space, for exmaple, on Webster Ave. and Jamaica Ave. But then someone else wondered whether it’s legal for us to ride in those lanes. Since then I have not ridden in any bus lanes, figuring that it’s not legal.

    So I just wanted to get your thoughts on this, if you don’t mind.

  • SteveVaccaro

    There is a technical legal argument that cyclists can use bus lanes in NYC, but I find bus lanes unpleasant and dangerous, and I don’t like holding up buses because they are efficient transportation for large numbers of people that I don’t want to slow down.

    But if you are ever ticketed for biking in a NYC bus lane, the defense is that the NYC traffic rules only restrict the operation of *vehicles* in bus lanes, not the operation of *bikes.* If the bus lane restriction were in the state law, then bikes would be deemed to face the same restrictions as vehicles, so such a state-law bus lane restriction would not have to specifically mention bikes–they would be treated like other vehicles. But that’s not the case, at least technically, under the NYC rules, which strictly speaking, only apply to bicyclists when the phrase “bicycle” appears in the text of the rule.

    I’m sure that’s not what the authors of the NYC traffic rules intended.

  • Recycler

    It says it right on the ticket that you will pay the surcharge and be hit with points if you plead guilty online, so no big surprise there. Do people not read these things before they click ‘guilty’ and type in their credit card number?

    Most NYC cyclists have known for years that the best course of action is to show up ( it only takes a couple hours, max) and plead not guilty, and put the burden of proof on the cop. Half the time, he/she won’t show or will make a mistake in testimony, and you’re home free. 25% of the time the judge will find you guilty, but reduce the fine since you were on a bike, and 25% of the time you’re outta luck, and they’ll hit you up for the full $190, but no points or fees.

  • Thanks for your response.

    Of course it’s not right to block buses; I certainly didn’t mean to suggest that it is. In practice there are times when a bus lane is completely open; such has been the case every time I have been on Webster Ave. It is for this reason that the bus lane was a good place to ride.

    It’s interesting to learn the difference between the State and City laws with respect to bicycles as “vehicles”. Still, I think I’d rather do without the hassle of fighting a ticket altogether; so I’ll probably just avoid the bus lanes from now on.

  • Southbound on2nd

    As the bus lane is on the right of second avenue and the bike lane is on the left, until it (brilliantly) shifts to the right – at Christie for sure but a few blocks north I think – I move to the right side of 2nd and use the bus lane at my convenience in the low 20s or teens. It’s not hard to travel faster than the busses. With all the other BS going on on 2nd during evening rush, I can’t imagine NYPD issuing a ticket for this. Remember, they focus on T intersections and other easy stops. When I used to ride in the UK the “bus lanes” we’re actually bus/bike lanes and I got accustomed to that. While very different by weight the speeds and need to be free of stopped cars are common interests.

  • SteveVaccaro

    You’ve had some great luck! In my experience the chances of beating the ticket due to no-show by cops or dismissal with the cop present is no better than 50-50. And NYPD introduced a rule a year or so ago docking officers sick leave if they failed to show up at DMV testify in support of their tickets, it has reduced the no-show rate.

    As for what people’s expectations are, i don’t think people assumed they would not get points and a surcharge when the statement they were clicking “yes” to said they would. I think they were relying on the inaccurate representations of DMV that it was required that they assent to the points and the surcharge.

  • Ian Turner

    The definition of “Vehicle” used in the bus lane law clearly excludes bikes, so I don’t think there’s any legal ambiguity here.

    http://www.nyc.gov/html/dot/downloads/pdf/trafrule.pdf

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