Licensing Compacts Selected Issues
February 13, 2008
As anyone who has surfed the web for DWI/DUI related issues can rapidly attest, the most commonly asked question concerns the possible effects of an alcohol related operating conviction on privileges granted by a sister state or jurisdiction. And for good reason; the rules relating to such situations are complicated and fraught with error for the uninitiated. In 4 NYDWI Bulletin 1, we broadly reviewed the problems such arrests and convictions create. While we will briefly review some of those broader aspects of this issue, we will ultimately focus upon situations concerning two of New York's closest neighbors, Canada and New Jersey.
As a general matter, the Interstate Compact is found in Vehicle and Traffic Law ' 516. It provides certain obligations in the event of a conviction. As described, the Compact works something like this. The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall identify the person convicted and describe the violation including the section of the statute, code or ordinance violated. It further shall identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered, or if a conviction was a result of the forfeiture of bail, bond or other security. Likewise, it shall include any special findings made in connection therewith.
Thereafter, the licensing authority in the state issuing the license is supposed to give the same effect to the conduct reported for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle. Enumerated in the Compact, such effect shall be given in the event of convictions for Manslaughter or Negligent Homicide Resulting from the Operation of a Motor Vehicle; Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor or a Narcotic Drug, or Under the Influence of any other Drug to a Degree Which Renders the Driver Incapable of Safely Driving a Motor Vehicle; any felony in the commission of which a motor vehicle is used; Failure to Stop and Render Aid in the Event of a Motor Vehicle Accident Resulting in the Death or Personal Injury of Another.
As of this writing, the following states are members of the Compact. The references following the state code are to the legislation in each state which enables implementation of the Compact:
Ala.--Code 1975, '' 32-6-30 to 32-6-36.
Ariz.--A.R.S. '' 28-1601 to 28-1605.
Ark.--A.C.A. '' 27-17-101 to 27-17-106.
Cal.--West's Ann.Cal.Vehicle Code, ' 15000 et seq.
Colo.--West's C.R.S.A. 24-60-1101 to 24-60-1107.
Conn.--C.G.S.A. ' 14-111c.
Del.--21 Del.C. ' 8101.
D.C.--D.C.Code 1981, '' 40-1501, 40-1502.
Fla.--West's F.S.A. '' 322.43 to 322.48.
Hawaii--HRS '' 286C-1 to 286C-2.
Idaho--I.C. '' 49-2001 to 49-2003.
Ill.--S.H.A. 625 ILCS 5/6-700 to 5/6-708.
Ind.--West's A.I.C. 9-28-1-1 to 9-28-1-6.
Iowa--I.C.A. '' 321C.1, 321C.2.
Kan.--K.S.A. 8-1212 to 8-1218.
La.--LSA-R.S. 32:1420 to 32:1425.
Me.--29-A M.R.S.A. '' 1451 to 1475.
Md.--Code, Transportation, '' 16-701 to 16-708.
Minn.--M.S.A. '' 171.50 to 171.56.
Miss.--Code 1972, '' 63-1-101 to 63-1-113.
Mo.--V.A.M.S. '' 302.600, 302.605.
Mont.--MCA 61-5-401 to 61-5-406.
Neb.--R.R.S.1943, Vol. 2A App. p. 830.
Nev.--N.R.S. 483.640 to 483.690.
N.J.--N.J.S.A. 39:5D-1 to 39:5D-14.
N.M.--NMSA 1978, 66-5-49 to 66-5-51.
N.Y.--McKinney's Vehicle & Traffic Law, ' 516.
N.C.--G.S. '' 20-4.21 to 20-4.30.
Okl.--47 Okl.St.Ann. '' 781 to 788.
Pa.--75 Pa.C.S.A. '' 1581 to 1585.
S.C.--Code 1976, '' 56-1-610 to 56-1-690.
Tex.--V.T.C.A., Transportation Code ''523.001 to 523.011.
Utah--U.C.A.1953, 53-3-601 to 53-3-607.
Vehicle and Traffic Law.--23 V.S.A. '' 3901 to 3910.
Va.--Code 1950, '' 46.2-483 to 46.2-488.
Wash.--West's RCWA 46.21.010 to 46.21.040.
W.Va.--Code, 17B-1A-1, 17B-1A-2.
Wyo.--W.S.1977, '' 31-7-201, 31-7-202.
Before moving on, it may be useful to point out that by legislation enacted in 1988, refusal revocations fall within the purview of enumerated offenses.
When the offense involves a Canadian licensee and a New York offense or vice versa, the outcome is governed not by the Interstate Compact and Vehicle and Traffic Law ' 516, but by Vehicle and Traffic Law ' 516-b. This section sets forth that:
(a) The commissioner may execute a reciprocal compact or agreement not inconsistent with the provisions of this chapter with the motor vehicle administrator or other authorized official of another state concerning the reporting of convictions for traffic offenses occurring in each state by a person licensed in, or a resident of, the other state to such licensing or residence state and the treating of any such reported conviction in the same manner as if the conviction occurred in the licensing or residence state for the purpose of administrative action. Any such compact or agreement shall specify the offenses subject to the compact or agreement, and shall include a determination of comparable offenses in each state if any such offenses are of a substantially similar nature but are not denominated or described in precisely the same words in each party state.
(b) The word state when used in this section shall mean any state, territory, a possession of the United States, District of Columbia or any province of Canada.
(c) Traffic offenses which may be subject to a reciprocal compact or agreement entered into pursuant to this section shall be limited to the following types of offenses in this state and equivalent offenses in each party state:
(1) Manslaughter, criminally negligent homicide and assault arising from the operation of a motor vehicle;
(2) Operating a motor vehicle while under the influence of alcohol or a drug;
Pursuant to the authority granted the commissioner by this section, on March 26, 1992, the Commissioner of Motor Vehicles of the State of New York and the Minister of Transportation of the Province of Ontario entered into an agreement entitled the Reciprocal Agreement Between the State of New York and the Province of Ontario Concerning Drivers' Licenses and Traffic Offenses. Although the agreement is quite long, you could literally grow old and/or lose your mind trying to find a copy of this agreement. Accordingly it is reprinted in full herein:
RECIPROCAL AGREEMENT BETWEEN THE STATE OF NEW YORK
AND THE PROVINCE OF ONTARIO CONCERNING
DRIVERS' LICENSES AND TRAFFIC OFFENSES
WHEREAS THE State of New York and the Province of Ontario wish to:
1. Promote compliance with traffic laws and improve highway safety within their own borders:
2. Facilitate, for their respective residents who hold a valid driver's licence,[i] the issuance of a licence from the other jurisdiction to which they are moving;
3. Further highway safety by treating offences for which their residents have been declared guilty in the other jurisdiction, as if they had been committed in the home jurisdiction for the purposes of updating and maintaining drivers' license records and imposing sanctions;
4. Strengthen co-operation between the two jurisdictions so that residents appear in response to citations for traffic offences and satisfy fines imposed as a result of offences committed within the other jurisdiction and for which they have been found guilty;
5. Allow motorists to accept traffic citations for certain offences and proceed on their way without delay.
THEREFORE, the State of New York and the Province of Ontario agree to the measures set forth in this agreement.
ARTICLE 1 - DEFINITIONS
For the purposes of this Agreement:
1.1 Jurisdiction means:
the State of New York or the Province of Ontario.
1.2 Home Jurisdiction means:
the jurisdiction that issues a drivers' license and has the authority to suspend, cancel or revoke it, or the jurisdiction of residence in the case of a person who does not hold a drivers' license.
1.3 Jurisdiction of origin means:
the jurisdiction which has issued the drivers' license that the holder wants to exchange for a license of the jurisdiction where the person has moved.
1.4 Declaration of guilt means:
an admission of guilt entered by or on behalf of the driver on a finding of guilt after trial in a competent court for an offence mentioned in paragraph 3.1 committed in one jurisdiction by the resident of the other jurisdiction.
1.5 Class 5 driver's license means:
a license issued by the Department of Motor Vehicles of the State of New York authorizing its holder to drive a passenger vehicle or a truck whose gross vehicle weight is under 18,000 lbs. (8,165 kg.). When used in this agreement, a class 5 driver's licence shall also include a license denominated a class D driver's licence.
1.6 Class G driver's licence means:
a licence issued by the Ministry of Transportation of the Province of Ontario authorizing its holder to drive any motor vehicle, including a motor-assisted bicycle, not exceeding 11,000 kg (24,250 lbs.) gross weight or registered gross weight, and any combination of a motor vehicle not exceeding a total gross weight or registered gross weight of 11,000 kg and towed vehicles where the towed vehicles do not exceed a total gross weight of 4,6000 kg (10,140 lbs.), but not:
a.) a motorcycle;
b.) a bus carrying passengers; or
c.) an ambulance in the course of providing ambulance service.
1.7 Valid driver's licence means:
a driver's licence that at the time of exchange has not expired and is not revoked, suspended or canceled in accordance with the laws of the issuing jurisdiction.
1.8 Points means:
demerit points or violation points awarded by a jurisdiction.
1.9 Citation means:
any summons, ticket, offence notice or other official document issued by a police officer for a traffic violation containing an order or request for the motorist to respond.
ARTICLE 2 - DRIVER'S LICENSE EXCHANGE
2.1 A person who holds a valid class 5 driver's licence may, upon becoming a resident of Ontario, exchange such licence without examination other than a vision test, for a class G driver's licence on payment of the fees prescribed by regulation.
2.2 A person who holds a valid class G driver's licence may, upon becoming a resident of New York, exchange such licence, without an examination other than a vision test, for a class 5 driver's licence on payment of the fees prescribed by the Vehicle and Traffic Law.
2.3 An application for exchange under paragraphs 2.1 or 2.2 shall constitute consent to the disclosure of the information pursuant to paragraph 2.4.
2.4 Notification of exchange and exchanged licence, if available, shall be forwarded to the jurisdiction of origin, which will confirm the validity of the licence by disclosing to the home jurisdiction the following information, if available:
- the holder's name, address and date of birth;
- the holder's height and sex;
- the holder's driving record of convictions, collision involvement and date the holder's licence was issued;
- the driver's licence number;
- the expiration date of the licence;
- any restrictions to which the holder is subject;
- any suspensions or revocations of record, including:
- the reason for such suspension or revocation;
- expired suspensions or revocations;
- the date of disclosure.
2.5 Information obtained by the new jurisdiction of residence pursuant to paragraph 2.4, becomes part of the driver's record to the extent permitted under the laws of the home jurisdiction.
2.6 A driver's licence issued pursuant to paragraphs 2.1 or 2.2 may be subsequently suspended or revoked, canceled or restricted, or additional examination may be required based upon information received pursuant to paragraph 2.4.
ARTICLE 3 - REPORTS AND EFFECTS OF CONVICTIONS
3.1 Declarations of guilt concerning the following offences shall be reported to the home jurisdiction by the jurisdiction in which the offence was committed;
3.1.1 Major offences
- Offences relating to the operation of a motor vehicle while under the influence of alcohol or drugs, under Section 1192 of the Vehicle and Traffic Law of New York (hereinafter referred to as the Vehicle and Traffic Law) and under Sections 253 and 254 of the Criminal Code of Canada (hereinafter referred to as the Criminal Code);
- Offences relating to criminal negligence or manslaughter resulting from the operation of a motor vehicle, under Article 125 of the Penal Law of New York and under Sections 220, 221 and 236 of the Criminal Code;
- Offences relating to reckless or dangerous driving, under section 1212 of the Vehicle and Traffic Law and under Section 249 of the Crimina Code;
3.1.2 Other Offences
- Offences relating to driving over the prescribed or posted speed limit or at a speed in excess of that which is reasonable and prudent, under Section 1180 of the Vehicle and Traffic Law and under Section 109 of the Highway Traffic Act of the Province of Ontario;
- Offences relating to the failure to obey a red light or stop sign, under sections 1111 and 1172 of the Vehicle and Traffic Law and under Sections 116 and 124 of the Highway Traffic Act;
- Offences relating to the failure to stop at the approach of a school bus with its flashing lights in operation, under Section 1174 of the Vehicle and Traffic Law and under Section 151 of the Highway Traffic Act;
- Offences under county or municipal by-laws or ordinances, or other acts of the Province of Ontario or of Canada or a regulation thereunder substantially similar to those listed in subparagraph 3.1.2.
3.2 Information reported under paragraph 3.1 shall be transmitted in a manner mutually agreeable to the parties.
3.3 For the purposes of drivers' licencing records, each jurisdiction shall recognize a declaration of guilt in the other jurisdiction concerning one of its residents as if the violation were committed in the home jurisdiction. Points shall be assessed and suspensions or revocations issued in accordance with the appendix of this agreement.
ARTICLE 4 - ISSUANCE OF CITATION
4.1 Except as provided under paragraph 4.2, a police officer issuing a citation to a resident of the other jurisdiction, shall not require the posting of collateral or take the motorist into custody unless the police officer has reasonable grounds to believe that the resident will not comply with the terms of the citation.
4.2 A police officer may, for an offence mentioned under subparagraph 3.1.1, require the posting of collateral or take the resident into custody.
ARTICLE 5 COMPLIANCE WITH TRAFFIC CITATIONS
5.1 Whenever a resident of the other jurisdiction has failed to appear in response to a citation or has failed to pay a fine imposed as a result thereof, within 30 days, for an offence mentioned under subparagraph 3.1.1 or 3.1.2 the jurisdiction in which the ticket was issued may as soon thereafter as possible, notify the home jurisdiction of such failure.
ARTICLE 8 - EFFECTIVE DATES AND WITHDRAWAL
The provisions of this agreement will be effective upon formal notice on a date mutually agreed upon by both jurisdictions. Either jurisdiction may withdraw from this Agreement by written notice to the other jurisdiction, but no such withdrawal shall take effect until 90 days after receipt of such notice.
ARTICLE 9 - SEVERABILITY
The provisions of this agreement are severable.
Signed at Toronto, Ontario
this 26th day of March 1992
* * *
The Agreement empowers each jurisdiction to honor licenses granted by the other jurisdiction and more importantly to act upon adjudications of guilt made by each in respect to the other's residents. Even so, the Agreement does little to answer your client's primary concern, What's going to happen to me?
Fortunately, and unlike the Interstate Compact which, due to the permutations and combinations presented by fifty different states is unable to set forth any potential outcomes, the Agreement set forth above is quite outcome specific. Section 3.3 sets forth that Points shall be assessed and suspensions or revocations issued in accordance with the appendix of this agreement. What follows then is the appendix of the Agreement. It is believed to be accurate at the time of printing, but counsel is best advised to confirm a particular outcome based upon the unique set of facts presented in your matter.
RECIPROCAL AGREEMENT BETWEEN THE STATE OF NEW YORK
AND THE PROVINCE OF ONTARIO CONCERNING
DRIVERS' LICENSES AND TRAFFIC OFFENCES
In accordance with Article 3 of the Agreement, the Province of Ontario will take the following actions with respect to its residents convicted of offences in New York.
OFFENCE PURSUANT TO THE LAWS ACTION TAKEN
OF THE STATE OF NEW YORK IN THE PROVINCE OF ONTARIO
1.1 Section 1192 of Vehicle and Traffic Law 1.1 Licence suspension or suspension of the right to obtain a licence: at least one year.
1.2 Article 125 of the Penal Law 1.2 Licence suspension or suspension of the right to obtain a licence: at least one year.
1.3 Section 1212 of the Vehicle and Traffic Law 1.3 Licence suspension or suspension of the right to obtain a licence: at least one year.
2.1 Section 1180 of the VTL 2.1 Assessment of at least three points on the driver's record if the speed limit was exceeded by more than 15 km/h.
2.2 Section 1111 or 1172 of the VTL 2.2 Assessment of three (3) points on the driver's record.
2.3 Section 1174 of the VTL 2.3 Assessment of six (6) points on the driver's record.
PART II - ACTIONS TAKEN BY THE STATE OF NEW YORK
In accordance with Article 3 of the Agreement, the State of New York will take the following actions with respect to its residents convicted of offences in Ontario.
OFFENCE PURSUANT TO THE LAWS ACTION TO BE TAKEN IN THE
OF CANADA AND THE PROVINCE OF ONTARIO STATE OF NEW YORK
1.1 Section 253 of the Criminal Code 1.1 Licence revocation: at least 90 days.
1.2 Section 220, 221, 236 of the Criminal Code 1.2 License revocation: at least six months.
1.3 Section 249 of the Criminal Code 1.3 Assessment of five (5) points on the driver's record.
2.1 Section 109 of the Highway Traffic Act 2.1 Assessment of at least three (3) points on the driver's record.
2.2 Section 116 or 124 of the Highway Traffic Act 2.2 Assessment of three (3) points on the driver's record.
2.3 Section 151 of the Highway Traffic Act 2.2 Assessment of five (5) points on the driver's record.
* * *
Bear in mind that Canada and Ontario in particular, have municipal traffic laws as well. In the event that a New York motorist is convicted of the municipal analog of any of the offenses set forth in paragraphs 2.1 - 2.3, pursuant to the Agreement, the New York response would be the same.
Dealing With New Jersey[ii]
As noted above, New Jersey is an Interstate Compact State. This means that if a New York resident is convicted of an alcohol related operating offense in that state, he or she can expect the record of that event to find its way to his or her New York record of convictions. Likewise, if a New Jersey resident is convicted of a section 1192 offense in this state, by operation of the Compact, that conviction will be memorialized in his or home state as well.
So far so good, but New Jersey is well-known for taking a harsh and somewhat draconian view of these offenses. The upshot of all this is that New York counsel could find him or herself with a very unhappy client unless he or she takes an additional minute to understand one of the finer points of our eastern neighbor.
At the core of the problem is that New Jersey does not recognize the degrees; impaired and intoxicated; as is done in New York. This is because New Jersey has but one offense which embodies both the common-law and per se offenses. In New Jersey, N.J.S.A. ' 39:4-50(a) provides:
(a) A person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit- producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood . . .
Thus, when a New Jersey resident is convicted of Driving While Ability is Impaired, that fact is reported to the motorist's home state through the mechanism of the Interstate Compact. Thereafter, following the clear mandate of that act, New Jersey, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state . . . Accordingly, since New Jersey law recognizes only this singular offense, it will impose a penalty identical to that which would be imposed if the motorist were convicted of Driving While Intoxicated in either of its two forms in New York. And those penalties as stiff indeed. For the first offense, the New Jersey motorist shall forthwith forfeit his right to operate a motor vehicle over the highways of [that] State for a period of not less than six months nor more than one year. (N.J.S.A. ' 39:4-50(a)(1)). For a second offense, the period of revocation is two years and upon the third such conviction, the period of revocation is ten years.
Now, one may reasonably ask, if New Jersey does not recognize a lessor included offense, can the argument be made that no sanction at all can be imposed in the home state? While the argument takes an A for effort, it is without merit. Initially, recall that the Compact does not limit itself to offenses, but defines the obligations created in terms of conduct (as it would if such conduct had occurred in the home state). Clearly the conduct would warrant treatment under N.J.S.A. ' 39:4-50(a), irrespective of the fact that in New York the conduct only constituted a violation of Driving While Ability is Impaired. Further, this argument has been rejected by the New Jersey courts. In Division of Motor Vehicles v. Lawrence, 194 NJ Super 1 (AD 1983), Appellant was arrested in December, 1981, in New York for Driving While Intoxicated, although the opinion does not specify whether it was under subdivision (2) or (3). He thereafter pled guilty to Driving While Ability is Impaired, a violation of Vehicle and Traffic Law ' 1192(1). As a result of this conviction, Appellant's privilege to operate a motor vehicle in the State of New York was suspended for a period of 90 days. On September 14, 1982, pursuant to the Interstate Compact, the Director issued a notice of proposed suspension, advising Appellant of his decision to suspend his driving privileges for six months.
Following suspension, the motorist sought reinstatement contending that since New Jersey has no equivalent offense to New York's lesser-included charge of Driving While Impaired, no action could be taken. Rejecting this contention, the Superior Court of New Jersey, Appellate Division, concluded that N.J.S.A. 39:4-50(a) and Vehicle and Traffic Law ' 1192(1) are of a substantially similar nature as required by the Compact, in that both deal with alcohol-related offenses and are aimed to deter and punish drunk drivers. Finding that the phrase under the influence of intoxicating liquor covers not only all the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors and which tend to deprive him of that clearness of intellect and control of himself which he would otherwise possess, the Court affirmed the suspension.
What of a New York resident who is arrested in New Jersey? Will he or she undergo a similar fate? While no reported case addressing this issue could be found, our opinion is that he or she will not. Even if our hapless New York motorist were to have a chemical content of greater than .10%, he or she would find saving grace in Vehicle and Traffic Law ' 1192(8). This section provides that:
A prior out‑of‑state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety‑three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a violation of any of the provisions of this section. This subdivision shall only apply to convictions occurring on or after November twenty‑ninth, nineteen hundred eighty‑five.
Since all license sanctions are imposed by Vehicle and Traffic Law ' 1193(2), it would seem that irrespective of the basis for the out of state conviction, the motorist will be treated as though he or she were convicted in New York of Driving While Ability is Impaired.
Will a New Jersey conviction form the basis for felony treatment if the motorist is unfortunate enough to be arrested in New York at some point in the next ten years? In a word, no. Again, Vehicle and Traffic Law ' 1192(8) is dispositive since it mandates that for the purpose of determining the penalties which are implicated the prior offense is to be treated as though it were a violation of Vehicle and Traffic Law ' 1192(1).
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