New York Auto Sale Goes Nuclear (and the Fallout), Part 4

September 9, 2011

“If it be not now, yet it will come.” Hamlet , Act 5, Scene 2

With this entry we conclude the story of Mr. X and his ill-fated car. Part 1 of our series described how the car - unregistered and uninsured - came to be wrecked by a friend (Mr. Y). Our second and third installments went into the Vehicle and Traffic charges faced by Mr. Y and Mr. X right after the accident; and now we’ll see that, when it comes to the Department of Motor Vehicles, you aren’t out of the woods until the woods say you are!

DMV’s response to Mr. Y’s accident came four months after the tickets had been dealt with, and five months after the accident itself. Keep in mind, if five months seems a long time, that this agency has been known to take more than a year to act in these matters (have a look at Hall v. State DMV, which describes a poor car owner’s plight as “a situation almost worthy of Kafka”).

Meanwhile, Mr. X had moved on. He’d paid his fine. He’d been paid for the car. As far as he was concerned, the incident was closed. So when, one day, he found an envelope from DMV in his mail, he was in no way prepared for the notice he found inside. He was “the registrant of an uninsured vehicle involved in an accident,” the notice read; because of this, his license was being revoked - for an entire year.

At first glance, this seemed baffling. He had been charged with permitting the use of an uninsured vehicle (Vehicle and Traffic Law Section 319(1)). He had never been convicted, though. Technically, the charge was still pending, but it had been adjourned in contemplation of dismissal and would be dismissed in due course.

However, what was happening to Mr. X had nothing to do with any conviction. There are essentially two kinds of provisions in the Vehicle and Traffic Law: these could be described as ‘civil’ and ‘quasi-criminal’. The traffic infraction defined in the first subdivision of Section 319 is ‘quasi-criminal’. It carries fines (and even the potential of jail time); in most parts of the state, it would be handled in a court of criminal jurisdiction. ‘Civil’ provisions are administrative rules. Violation of these rules results in strictly administrative sanctions.

The civil provisions of Section 319 make reference to the ‘quasi-criminal’ traffic infraction defined in the first subdivision of the statute, but they operate independently of it. So beating the traffic infraction is only half the battle. For instance, a $750 surcharge will be imposed where “the commissioner finds, other than by means of the receipt of a certificate of conviction,” that the first subdivision has been violated.

Under Section 318 of the Vehicle and Traffic Law, which gave DMV the authority for Mr. X’s revocation, a vehicle owner’s license is to be revoked “upon receipt of evidence” that someone was allowed to drive the vehicle without insurance. Mr. X needn’t have been charged with anything, much less convicted.

We don’t know, by the way, what, if anything, Mr. Y was convicted of. Nor do we know where he stood with DMV. Presumably, though, Mr. Y was revoked: 318 refers not only to owners who permit uninsured operation, but to knowing operators, as well. As we’ve mentioned in the past, Mr. Y wouldn’t seem to be in a position to argue that he was ignorant of the car’s uninsured status - the thing didn’t even have plates.

319 did give Mr. X a potential way out. Since “he was the owner and not the operator of the motor vehicle,” he might be able to show “that he did not permit, either expressly or impliedly, the operation of such motor vehicle.” DMV has itself come up with a mechanism for doing this, which it calls the ‘no permission procedure’.

Note that Mr. X could not have used the ‘no permission procedure’ if he’d pled guilty in court to permitting the use of an uninsured vehicle. (How can you claim you didn’t do something when you’ve already admitted it by pleading guilty?) In other words, proper handling of a ticket might not keep the administrative wheels from rolling, but it might just keep them from rolling right over you.

Under DMV’s ‘no permission procedure’, you first prepare an affidavit. In the affidavit, you swear that you didn’t give the driver permission to drive your uninsured car; you also explain how the miscreant got hold of your keys. Mr. X, as you can imagine, had a very interesting tale to tell.

Then you get an affidavit from the driver, admitting everything you just swore to. This was more easily said than done, in Mr. X’s case. He hadn’t been on speaking terms with Mr. Y since the accident.

Where the driver won’t cooperate, you prepare an affidavit yourself that says everything you need said. You then send it to the driver’s last-known address, certified mail, return receipt requested. If he signs it, great. If he denies the allegations, that’s not so great. Mr. Y did neither. He received the mailing and signed for it. Then he did absolutely nothing.

This ultimately served Mr. X’s purpose, however. If the driver ignores the mailing, you just provide DMV with a copy of the affidavit you sent, along with proof of mailing and return receipt (or the original sealed envelope, if the driver refused delivery). DMV will then give the driver a month to respond. If, like Mr. Y, the driver doesn’t respond, you win. You get to keep your license.

We haven’t heard from Mr. X in a while, but as far as we know, he’s living happily ever after.

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