For many years, winning reinstatement after a suspension based on an arrest was practically impossible. Even if the OATH judge recommended reinstatement, the TLC chair would reject the recommendation.
THE GOOD NEWS IS THAT NOW YOU CAN WIN, which is thanks to a decision in Nnebe v. Daus, a case won by the Law Office of Daniel Ackman.
The key is to focus on five factors: (1) that the arrest was off-duty and unrelated to driving; (2) that it was a misdemeanor charge (as is usually the case); that the driver was issued a desk appearance ticket ore released without bail; (4) that is was a first arrest pr that the driver has no prior criminal record; and (5) that the driver has a good driving record.
Here is a detailed guide to winning your case:
Summary suspension hearings are held at OATH after a taxi or FHV driver is summarily suspended based on an arrest for any felony charge or one of the misdemeanor charges listed in TLC Rule 68-15(d). The issue at these hearing was (and is) whether the driver's suspension should be lifted or whether it would continue. That determination was, in turn, based on “whether the charges underlying the Licensee's arrest, if true, demonstrate that the continuation of the License while awaiting a decision on the criminal charges would pose a direct and substantial threat to public health or safety.”
For years, it was impossible for a driver to prevail because even if the OATH ALJ issued a report and recommendation that the driver be reinstated, the ALJ could only recommend, not rule, and the TLC chair invariably rejected any recommendation that the favored the driver. Meanwhile the chair never failed to accept recommendations that the suspension be extended. During this time, OATH judges knew that any recommendation favoring the driver was certain to be rejected, so they affirmatively advised drivers to not pursue a hearing. When the drivers did so anyway, the ALJs tended to rule against them.
In July 2019, however, the Second Circuit Court of Appeals held that the TLC's post-suspension process (which included pre-hearing notices, OATH hearings and chair review) was unconstitutional. Nnebe v. Daus, 931 F.3d 66 (2d Cir. 2019). Specifically, the Court held that under a statutory regime that emphasizes the danger of licensure to the public health and safety, “[A] hearing that in effect conclusively presumes that suspension is appropriate based solely on the abstract relationship of the elements of a charged offense to safe driving [which the TLC chair had done for years] provides inadequate process.” The Court found further that the burden of proof in establishing that a driver's summary suspension should continue is on the TLC. It held that, at the post-suspension hearing, “The TLC must … demonstrate that the continuation of the License . . . would pose a direct and substantial threat.” Id. at 71 (citing TLC Rule 68-15(d)(3)). Because the TLC had never been required to meet this burden, because the entire post-suspension process in effect conclusively presumed that suspension was appropriate, the Court found a procedural due process violation.
OATH Decisions Since Nnebe
Since the Second Circuit ruled, OATH judges have consistently cited and purported to follow Nnebe. They have also increasingly ruled in the driver's favor. More surprising, the TLC chair (or the general council acting for the chair) has accepted the ALJ recommendations. As of March 25, 2020, there have been 18 ALJ decisions since Nnebe and drivers have won 13 of 18 (72%) and 9 of the last 10. There is no reason this pattern should not continue because, at these hearings, the TLC really makes no effort to meet its burden of proof. Also if the facts are known, few drivers can be said to pose a direct and substantial threat to public safety.
- The Burden of Proof: It's on the TLC; an Arrest is not Enough
In Nnebe, the Court said, “It is possible for a driver to be charged with an act that itself endangered public health or safety, but that is insufficient to demonstrate that the driver would continue to pose a threat if allowed to retain his or her license.” 931 F.3d at 83. The Court added that, the crime may be “a sole infraction in an otherwise spotless record” or the underlying conduct, while satisfying the elements of a crime, may be “technical or mitigated, such that continuation of the driver's license did not pose the kind of threat conjured by the general nature of the crime charged.” Id. at 82. OATH ALJs have also made clear that the TLC must demonstrate a continued direct and substantial threat. See Taxi & Limousine Comm'n v. Azad, OATH Index No. 142/20 at 6 (Aug. 15, 2019), adopted, Comm'r Dec. (Oct. 15, 2019), appended (“[I]n Nnebe, the Second Circuit placed the burden squarely on the Commission to show that respondent's continued licensure would pose a direct and substantial threat to the public health or safety”). Just as important, the mere fact of arrest is insufficient to demonstrate such a threat.
- The TLC's Case
Despite having the burden, the TLC never even attempts to meet it, at least not with evidence. TLC prosecutors invariably introduce what the ALJs call “documentary evidence” and rest their case. This documentary evidence usually consists of: a notice from the Division of Criminal Justice Services that the driver has been arrested, which states the arrest charge; a TAMIS printout that shows the respondent is in fact licensed by the TLC; a printout of the driver's DMV record, and the NYPD complaint. Sometimes, the TLC introduces a document that shows the arrest charge is still pending.
2. Driver Motions
A. None of these documents, separately or together, show the driver presents an ongoing threat. For that reason, I advocate moving to dismiss at the end of the TLC's case on the ground that the TLC has not made a prima facie showing of dangerousness and has not met its burden of proof. These motions have never succeeded. But they are worth making to get the ALJ thinking along the lines of the TLC having the burden and its failing to meet it.
B. Untimely Hearings as Grounds for Dismissal.
OATH has held in a ruling adopted by the chair that if a driver is not afforded a hearing within ten days of a request, the petition must be dismissed and the driver reinstated. Taxi & Limousine Comm'n v. Sow, OATH Index No. 467/20 (Oct. 15, 2019), adopted, Comm'r Dec. (Oct. 17, 2019). The ten-day clock starts from when the driver first requests a hearing, not from the day the TLC agrees to schedule one. Taxi & Limousine Comm'n v. Singh, OATH Index No. 1245/20 (Jan. 30, 2020), adopted, Comm'r Dec. (Feb. 5, 2020) (noting that when the driver first called, his attempt to schedule a hearing was rebuffed).
3. The Driver's Case
ALJs have cited numerous factors in determining whether the driver is dangerous. These can be brought out on direct examination of the driver.
(1) whether the driver was issued a desk appearance ticket at the time of his arrest or was released without bail at arraignment. If the arresting officer did not think the driver worth detaining at the time of arrest or if the arraignment judge released the driver on his own recognizance, how dangerous can he be. See Taxi & Limousine Comm'n v. Francois, OATH Index No. 651/20 at 4 (Nov. 25, 2019), adopted, Comm'r Dec. (Dec. 24, 2019) (citing desk appearance ticket and that driver was 59 years old); Taxi & Limousine Comm'n v. Ibrahim, OATH Index No. 891/20 at 4 (Nov. 25, 2019), adopted, Gen. Counsel letter (Dec. 9, 2019) (citing desk appearance ticket).
(2) whether or not the driver has any prior convictions. Rarely do drivers have prior convictions. If that's the case, his lawyer can argue that even if he is guilty of the arrest charge—which he is not— the act is an aberration, unlikely to be repeated. It would be especially unlikely for a driver with no prior convictions to re-offend while the arrest charge is pending. See Taxi & Limousine Comm'n v. Azad, OATH Index No. 142/20 (Aug. 15, 2019) at 6, adopted, Comm'r Dec. (Oct. 15, 2019), appended (lack of prior criminal record a “favorable” factor for driver).
(3) whether the driver has ever been convicted by the TLC tribunal of assaulting or threatening a passenger. The TLC may prosecute a driver for rule violations based on an allegation that he assaulted or even threatened a passenger or TLC official even if that conduct has never led to a criminal charge. If the suspended driver has never harmed, assaulted or threatened a passenger (and has never been accused of doing so) that is evidence that the alleged crime is out of character and unlikely to be repeated while the instant charges are pending. See Taxi & Limousine Comm'n v. Singh, OATH Index No. 701/20 at 7 (Nov. 1, 2019), adopted, Comm'r Dec. (Nov. 19, 2019) (suspension lifted for licensee charged with assault where it appeared that licensee, who had a spotless history of law-abiding behavior and showed substantial regard for passenger safety, reacted to extraordinary provocation).
(4) the number of years the driver has been licensed. See Taxi & Limousine Comm'n v. Francois, OATH Index No. 651/20 (Nov. 25, 2019), adopted, Comm'r Dec. (Dec. 24, 2019) at 8 (citing driver's 30-year tenure).
(5) the driver's overall TLC record. Taxi & Limousine Comm'n v. Singh, OATH Index No. 701/20 at 7 (Nov. 1, 2019), adopted, Comm'r Dec. (Nov. 19, 2019) (suspension lifted for licensee charged with assault where it appeared that licensee, who had a spotless history of law-abiding behavior and showed substantial regard for passenger safety, reacted to extraordinary provocation); Francois at 4 (“the overall record and character' of the respondent falls short of establishing that he poses a continuing direct and substantial threat to the public safety”).
(6) the driver's age and maturity (such as whether he supports a family). See Taxi & Limousine Comm'n v. Ibrahim, OATH Index No. 891/20 (Nov. 25, 2019), adopted, Gen. Counsel letter (Dec. 9, 2019) at 4 (“Respondent impressed me as a mature, credible witness”); Francois at 5 (noting that driver is sole supporter of his family)[i];
(7) the facts and circumstances surrounding the arrest. Nnebe, 931 F.3d at 82 (“[I]n the majority of cases, the further removed the crime is from the driver's job, the less ‘direct' the threat may be if he or she remains licensed. Depending on the surrounding circumstances and the driver's history, the threat may also be more or less ‘substantial'”).
(8) that the alleged offense occurred while the driver was off-duty and did not involve a passenger or TLC official. Many drivers are arrested after domestic violence incidents or based on disputes with particular individuals that are unlikely to be repeated with passengers. Even if the driver committed the crime charged in these circumstance, that fact does not suggest an immediate threat to passengers. See Taxi & Limousine Comm'n v. Martinez, OATH Index No. 1778/20 (Mar. 19, 2020) at 2 (“there was substantial provocation here, he came to the aid of his wife and his minor daughter, and the incident took place at his home”).
(9) whether there are mitigating factors as to the alleged offense. Nnebe, 931 F.3d at 82 (“The underlying conduct, while perhaps satisfying the elements of a crime on the TLC's list, may also be such as to persuade an ALJ and the TLC Chair that the offense was technical or mitigated, such that continuation of the driver's license did not pose the kind of threat conjured by the general nature of the crime charged”); Taxi & Limousine Comm'n v. Singh, OATH Index No. 701/20 at 6 (Nov. 1, 2019) (“this appears to be the type of situation discussed in Nnebe, where underlying conduct meets the technical definition of a crime, but does not show that the driver posed the kind of danger ‘conjured by the general nature of the crime charged'”); Francois at 8 (lifting suspension where “conduct is mitigated”); Taxi & Limousine Comm'n v. Warren, OATH Index No. 1081120 (Dec. 27, 2019), adopted, Comm'r Dec. (Jan. 29, 2020) (citing compelling testimony that complainants were the aggressors).
This list, of course, is not exhaustive. Drivers can introduce any other evidence that seems relevant.
- Testifying About the Underlying Alleged Crime:
There are naturally some concerns about having a driver facing a criminal charge testify about the underlying criminal allegation. I suggest that the threat of self-incrimination is small. Trials in in misdemeanor cases are rare. The driver can deny the allegations and it is very unlikely that that the TLC prosecutor will be able to skillfully challenge that testimony if she challenges it at all. I have never heard of a prosecutor obtaining a transcript of an OATH hearing, much less using it in a criminal proceeding. But all that said, it's a decision for the driver and his counsel to make in their particular case.
Even if the driver does not want to testify about the underlying events, he can testify to the context (such as the crime being off-duty). Otherwise, the NYPD complaint can be used to demonstrate the context.
It is critical to note that the requirement that the ALJ assume that the charges are “true” does not extend to the underlying particulars or every detail of the NYPD complaint. Particular allegations can be false and are subject to challenge. ALJ Casey states in Taxi & Limousine Comm'n v. Singh:
Asserting that it had limited access to information regarding the criminal case, petitioner argued that, not only should the criminal charges be presumed true, but the additional details in the complaint should also be accepted as true (Tr. 74-75). Petitioner is mistaken. As respondent's counsel noted, petitioner made no effort to speak to respondent before suspending his license and there was no evidence that petitioner attempted to speak to the complainants, the police, or the prosecutor (Tr. 70). Though a post-suspension hearing is not intended to be a minitrial on the criminal charges, which petitioner's rules deem to be true, neither petitioner's rules nor the decision in Nnebe support the sweeping proposition that every additional detail in a complaint must be accepted as true. On the contrary, the additional details of the complaint, which rely on multiple levels of hearsay, should be weighed against the rest of the evidence. OATH Index No. 701/20 (Nov. 1, 2019), adopted, Comm'r Dec. (Nov. 19, 2019)
Likewise in Francois, ALJ Lewis writes, “[G]iven the limited detail in the police report and respondent's consistent testimony that he got out of the car to speak to the pedestrian and was not aware of actual injury, this case is much different from those of other drivers whose license suspension following their arrest for leaving the scene of an accident was continued.”
- Character Witnesses
Drivers have used character testimony to good effect. This is easy to do; all one needs is a witness who knows the driver well and who can testify that he is a generally, peaceful person. The witness should need minimal preparation and would likely wind up testifying for 10 minutes or so.
- Points in Summation
In summation, counsel should again emphasize the TLC bears the burden of proof and that evidence of the fact of arrest is insufficient to carry that burden. Counsel may argue that the driver's overall record and his lack of criminal record indicate that even if the driver is ultimately found guilty of the arrest charges, his conduct was an aberration, inconsistent with his character and is unlikely to be repeated, especially not while the arrest charges are pending. Counsel may argue as well that the evidence (from the driver's own testimony or even from the NYPD complaint) against the driver is weak, that there are factors in mitigation, that there is no evidence that the alleged victim was injured or that the incident was specific to a time or place. For these types of reasons, even if the charges are assumed “true,” the driver cannot be deemed a direct and substantial threat going forward.