DMV Primer: How the Safety Hearing System Lets Deadly Drivers Off the Hook

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This is part of a series of posts on the workings of the New York State Department of Motor Vehicles, its role in deterring or facilitating traffic violence, and agency reforms that could make streets and roads safer.

Crash victims and their families have learned to expect little from New York City’s police and district attorneys, most of whom reflexively “suspect no criminality” in a traffic crash unless the driver was drunk, unlicensed, or fled the scene. Even the minimal penalty of a traffic ticket issued to a reckless driver who injures or kills often doesn’t stick. When this happens, what option is left, other than a civil trial, to penalize dangerous driving? In the state of New York, the mechanism is supposed to be a DMV “safety hearing,” which could result in a driver’s license being suspended or revoked.

But the safety hearing system does not fulfill this function. One of the key reasons is that safety hearings are held in too few cases. Following the revelation that traffic tickets issued to Ahmad Abu-Zayedeh for killing Allison Liao had been dismissed, DMV claimed that “whenever a fatal accident occurs,” it holds a safety hearing:

Mr. Abu-Zayedeha was found not guilty and those tickets were dismissed on July 1, 2014… However, whenever a fatal accident occurs anywhere in the state, the DMV schedules a special safety hearing. That hearing for Mr. Abu-Zayedeha has been set for January 6.

DMV’s claim is false. In fact, DMV picks and chooses which crashes will result in a safety hearing. Even in fatal crashes, where there is substantial evidence of driver recklessness, DMV may not hold a hearing.

For example, teacher Rasha Shamoon was fatally injured by an SUV driver while bicycling. Although the 21-year-old driver had been convicted of five moving violations during a short period of time prior to the crash, police blamed Shamoon based on the driver’s version of events. Shamoon’s family demanded that the DMV hold a safety hearing to review the driver’s license, but the DMV refused to do so, stating:

So as to conserve hearing resources, all fatal accident cases are screened by a highway safety analysis… According to the police accident report, this tragic accident was attributed to bicyclist error/confusion and disregard of a traffic control.

Remarkably, after a civil trial conducted by my law practice colleague Adam White, a jury unanimously found the driver who killed Shamoon 90 percent at fault for the crash. At trial, White presented critical evidence overlooked by NYPD, including an admission by a passenger in the driver’s vehicle that the driver had been speeding at 40 to 45 miles per hour, and had not kept a lookout for Shamoon. NYPD had failed to interview witnesses other than the driver or gather other evidence, and on this basis had simply blamed the victim.

The DMV’s approach of simply relying on the police report ensures that DMV will not provide any additional layer of investigation or review beyond that provided by police. Given that many police officers believe that their role is only to investigate “criminality,” and not fault, DMV’s reliance on police reports means the agency will often fail to conduct safety hearings when it should.

DMV’s own rules provide that a safety hearing, if one is going to be held at all, must be held within a year of a fatal crash. But victims’ families in numerous fatal crashes that happened more than a year ago are still waiting for a safety hearing, including the families of Mathieu Lefevre, Ryo Oyamada, and others. It appears that the only reason a safety hearing has now been scheduled to take place in the Liao case — fifteen months after Allison Liao was killed — is because of public outrage against the DMV for the dismissal of the tickets issued to the driver.

DMV should expand the safety hearing program to all fatal and serious injury crashes, as advocates have proposed. Until then, the agency should make public its determinations whether to hold safety hearings in particular cases, so that families are not left wondering what, if any, action may be taken.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.

  • Albert

    It would seem that “criminality” has to be some black-hat, moustache-twirling, evil-fueled, intentional use of a car to kill or injure someone. But isn’t “criminal negligence” criminality? Can’t it be as simple as that?

  • SteveVaccaro

    Interesting question. “Criminal negligence” is a harmful act as to which (1) the wrongdoer did not perceive the risk of harm in advance and (2) the failure to perceive the risk constituted a gross deviation from the risks that a reasonably prudent person would have perceived in the same circumstances.

    Criminal negligence ought to be charged much more often in cases of traffic violence–certainly, in all cases where the driver admits to taking their eyes off the road. Taking your eyes off the road while a car is traveling urban streets, and then striking and killing someone, and claiming that you “didn’t see” the victim or the victim “came out of nowhere” should be considered a gross deviation in failing to perceive risks that normal people would perceive.

    But DAs apparently don’t see it that way. They seem to think that most jurors would forgive drivers, like the one that killed Ally Liao and injured her grandmother, who claim they didn’t perceive the risk of injuring pedestrians as they turned into them through a crosswalk. Instead, when DAs charge crimes at all, they go for harder-to-prove charges involving recklessness or depraved indifference. No doubt there is some bad experience with trying to convince jurors to understand and apply the concept of a what a “gross deviation from the risk perception we expect from reasonable people,” but that’s no excuse to stop trying.

    If DAs did pursue criminal negligence theories rather than recklessness more often, they might well find that the judges reviewing convictions were less able to smuggle in made-up requirements like “moral blameworthiness” to scuttle the convictions.

  • roguebagel

    RE the “moral blameworthiness” quote since I was curious, it seems there’s a legal distinction between “criminal risk-taking” and “noncriminal failure to perceive risk”? From a Google search:

    http://www.law.cornell.edu/nyctap/I08_0063.htm

    [relevant passage]
    There was testimony and forensic evidence that Cabrera, a young and inexperienced but sober driver, entered a tricky downhill curve, the site of other accidents, at a rate of speed well in excess of the posted warning sign. This behavior is certainly negligent, and unquestionably “blameworthy.” But our decisions have uniformly looked for some kind of morally blameworthy component to excessive speed in determining criminal negligence; for example, consciously accelerating in the presence of an obvious risk (see Paul V. S., 75 NY2d 944). No such morally blameworthy behavior could be inferred from the testimony in this case 2. For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined “criminal negligence,” even though the consequences here were fatal. This crash resulted from noncriminal failure to perceive risk; it was not the result of criminal risk creation.

  • SteveVaccaro

    I stand corrected! Thanks for digging out that in Cabrera. The judges there rewrote the meaning of “criminal negligence” to include an inscrutable “moral” dimension that does not appear in the legislative text:

    “Criminal negligence.” A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it
    constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

    I still think the DAs need to push back against this. I guess we also need the legislature to make an amendment to the penal code along the following lines: “This definition of ‘Criminal negligence’ does not connote or require that conduct, to be criminally negligent, must be “morally blameworthy.”

  • KeNYC2030

    I was on a jury many years ago in a case involving a man who was showing his new handgun to a friend in the back room of a bar. Believing there was no bullet in the firing chamber, the gun owner pulled the trigger. He was wrong. The gun fired, killing a man sitting on the other side of the wall. We found the gun owner guilty of criminally negligent homicide and he was sentenced to three years. I fail to see how this is any different from plowing into a child and her grandmother who have the right of way in a crosswalk — and perhaps worse because a driver would be expected to see them. And yet the same prosecutors who spared no effort in pursuing the gun case would never, under current practices, go after the driver.

  • Canarsie Yankee

    I would say this is more of a perspective that taking your eyes off the road could happen to anyone and therefore it’s an accident versus the thought that someone has to be insane to waive around a gun pulling the trigger. Just speculation on my part. After all, the system is made of humans.

  • KeNYC2030

    “It could happen to anyone” is exactly the mindset that has to change if we are to start holding drivers accountable for killing people.

  • Kevin Love

    We don’t need to go far to find places where the mindset does indeed hold car drivers accountable for killing people.

    All we have to do is go across the New York/Ontario border. Where “I didn’t see the pedestrian” is treated as a confession of guilt. Where police do suspect criminality when a car driver kills someone. And where prosecutors proceed at trials on the legal principle, to quote Crown Attorney Lidia Narozniak:

    ” The claim, ‘I didn’t see her’ is proof of a lack of due care and attention and reason for conviction.”

    Source:

    http://www.thespec.com/news-story/4412657-driver-found-not-guilty-in-death-of-senior-crossing-dundas-road/

  • Kevin Love

    Since when are judges amateur clergymen to determine who is “morally blameworthy”? I don’t want judges to impose their morality upon everyone else.

    If I want to live in a theocracy, I’ll move to the Islamic Republic of Iran. No thanks.

    In every other advanced industrialized country that I’ve ever been in, judges don’t impose their morality upon everyone else. Instead, they enforce the law. They apply the law to criminal BEHAVIOR as established by EVIDENCE and leave morality to the clergymen.

  • Bolwerk

    Nah, just a black person on foot selling loose cigarettes. Whatever it is, the definition of criminality is reeling tonight. It should be pretty clear that there is one set of unspoken rules for people in cars, another set for people with badges and batons, and still another for those who get run over by cars/hit with batons.

    Rudy Giuliani has been gone for 13 years, but his stink lingers in New York.

  • Andrew

    I agree, and in fact I doubt that most NYC jurors share that mindset. But if the DA has that mindset, we never get to hear what the jurors actually think.

    How do the DA’s get to work? Do they receive special parking privileges not available to the general public, artificially influencing that decision?

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