THE NUTS AND BOLTS OF DMV FATALITY HEARINGS

DONNA L. BURDEN, ESQ.

HURWITZ & FINE, P.C.

1300 LIBERTY BUILDING
BUFFALO, NEW YORK 14202
(716) 849-8900
In 1998, there were approximately 1,500 deaths from motor vehicle accidents in New
York. In almost all such cases, the Commissioner of Motor Vehicles (DMV) holds
administrative hearings to investigate the cause of the accidents and to determine whether
drivers’ licenses should be suspended or revoked. These safety hearings, commonly referred to
as Fatality Hearings or Fatal Accident Hearings, are governed by Vehicle & Traffic Law §510.
The purpose of Fatality Hearings is to determine if a driver operated a motor vehicle “in a
manner showing a reckless disregard for life or property of others” in violation of Vehicle &
Traffic Law §510(3)(e) and whether to impose license suspension or revocation. The State
Administrative Procedure Act, Article 3, and the Regulations of the Commissioner, 15
N.Y.C.R.R. Part 127, “Safety Hearings,” set forth the procedures for the hearings. Under these
rules, hearings must be commenced within six months from the date of death. At least two
weeks before the hearing date, notices are mailed to the driver’s last known address on file with
the DMV. The notices are presumed received unless returned by the post office. Each notice
must provide the time, place and nature of the hearing. The notice must also state that parties
may be represented by counsel and that interpreters for the hearing impaired will be provided at
no charge.
Parties may appear with counsel, but are not entitled to representation because the
proceeding is administrative, not criminal. Thus, there is no right to assigned counsel. Parties
may be represented by non-attorneys at the discretion of Administrative Law Judge (ALJ)
assigned to hear the matter. Witnesses or other interested parties may also be represented by
counsel, but their right to question witnesses may be restricted if the ALJ deems such
questioning irrelevant or unduly repetitive.
The Commissioner has the burden of proving a violation of the Vehicle & Traffic Law.
The ALJ’s determination must be supported by “substantial evidence,” which is defined as such
relevant evidence as reasonable minds would accept as adequate. It has been described as
something less than a “preponderance of the evidence” standard but more than mere surmise,
conjecture or speculation. The hearing process is informal and rules of evidence observed by
courts of law are inapplicable. For example, hearsay evidence may be considered by the ALJ in
reaching a determination.
Privileges afforded under CPLR Article 45, (e.g., self-incrimination, spousal
communications, and attorney-client communications) apply in these proceedings. An assertion
of the Fifth Amendment right to remain silent at the hearing may not serve as a basis for the
Commissioner to impose penalties; however, an ALJ may draw a negative inference from a
party’s failure to testify.
 There is no right to pre-trial discovery at the hearing. Subpoenas requiring the attendance
of witnesses and the production of documents and other evidence may be issued by the ALJ at
the request of any party or by an attorney for any party. Parties may review non-confidential
information in the hearing file before the hearing. Depending on the timing of the request and
the location of the file, arrangements may be made with the ALJ directly or with the Safety
Hearing Bureau.
Requests to adjourn a hearing should be directed to the ALJ or the Safety Hearing Bureau
at least seven days before the scheduled hearing date. If made less than seven days before the
hearing, the request must be made to the ALJ directly, and will generally not be granted.
Failure to appear at the hearing is deemed a waiver, although a timely request for
rehearing may be made. Testimony and evidence may nevertheless be entered into the record.
The ALJ determines the order of proof. Testimony is taken under oath or affirmation and
witnesses may be excluded while others testify. All parties (or their representatives) and the ALJ
may question witnesses. Objections may be asserted throughout the proceeding and should be
noted in the record. All evidence becomes a part of the record.
The hearings are typically tape-recorded and certified transcripts are provided at the
requester’s expense. There is no statutory or regulatory prohibition against the use of
stenographers, but the ALJ may disallow their use if deemed disruptive to the hearing. Hearings
may not be broadcast, filmed or videotaped.
ALJs may announce a decision at the conclusion of the hearing or reserve decision for a
later time. A written determination, which includes findings of fact, conclusions of law,
disposition, and penalties, must be sent to the parties and their representatives within 45 days of
the conclusion of the hearing. If it is not sent within that time, parties may serve a demand for
decision. Upon receipt of the demand, the ALJ has 45 days to render a decision or the charges
are deemed dismissed.
A driver may appeal a license suspension or revocation by filing a notice of appeal and a
$10 filing fee with the DMV Appeals Board within 60 days following written notice of the
determination. The transcript of the hearing will only be reviewed on appeal if it is submitted to
the Appeals Board. The determination is subject to judicial review in a proceeding under CPLR
Article 78, but only after the administrative review process is exhausted.
Since the standard of proof at a Fatality Hearing is less than the “preponderance of
evidence” standard required in a civil action, the ALJ’s finding is not subject to res judicata or
collateral estoppel. The testimony of witnesses may be used in subsequent actions for
impeachment purposes and should therefore be requested in any related civil action.