IF YOU ARE ARRESTED AND SUSPENDED:
If you are a FHV driver and you are arrested, the TLC will probably suspend your license—without an investigation and regardless of your record. The letter announcing your suspension will also tell you that you have the right to a hearing after which the hearing judge will recommend whether the suspension should continue of be lifted. You should request a hearing immediately because when you do, the TLC must allow you a hearing within 10 days. You do not need a lawyer to request a hearing. Some drivers represent themselves at hearings. But as the lawyers who brought the case that established the right to a fair hearing, we have more experience in this area than anyone else. So if your TLC License was suspended, it makes sense to call us.
At the post-suspension hearing, the burden of proof is not on the driver— it's on the TLC. To justify a continued suspension, the TLC must establish that the driver's continued licensure poses a direct and substantial threat to the public safety. It's not surprising that most hardworking taxi and FHV drivers, even if they have been arrested do not pose this kind of threat.
At the hearing the judge (who is not a TLC employee, but is from another city agency called OATH) cannot and will not determine whether you are guilty of the criminal charge. That's for the criminal court and many take many months. The judge will only decide whether you pose a threat to the public. Factors to be considered include the conduct underlying the arrest, your overall record and character. The judge will also weigh whether the charged crime is the sole infraction in an otherwise spotless record (as is usually the case). The judge should also consider the context of the crime such as whether it was on-duty as opposed to in a domestic situation.
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. This is thanks to a decision in Nnebe v. Daus, a case brought by the Law Office of Daniel Ackman. The burden of proof for extending the suspension is on the TLC.
HOW TO WIN REINSTATEMENT
You are not required to retain a lawyer for your post-suspension hearing. Some drivers represent themselves. But having a lawyer who experienced in such hearings is generally a good idea.
THE PRE-HEARING CONFERENCE
Before a hearing, OATH also asks the driver and the TLC to appear at a conference. Theoretically, the conference is to permit a settlement. In fact, the parties never settle. So the conferences are often used to encourage (or trick) the driver to waive his constitutional right to a fair a hearing. The TLC lawyer or even the judge might tell you that the hearing record (including the fact that you were arrested) will become public record or that statements made at the hearing could be used against you in a criminal trial. In reality, there has never been an instance as far as I know where statements at an OATH hearing were used at a criminal trial. And while the hearing report is available to the public, it will not be easy to find and may not appear at all in a Google search.
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 The issue at these hearing 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 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.
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. 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.”
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 has accepted the ALJ recommendations.
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.” 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.” Since then, OATH ALJs have also made clear that the TLC must demonstrate a continued direct and substantial 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.
None of the documents the TLC uses to support its case actually show the driver presents an ongoing threat. For that reason, the driver can move 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.
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
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.
(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.
(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.
(4) the number of years the driver has been licensed.
(5) the driver's overall TLC record.
(6) the driver's age and maturity. Mature adults, especially those who support a family, even if arrested, rarely re-offend.
(7) the facts and circumstances surrounding the arrest. In 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.
(9) whether there are mitigating factors as to the alleged offense. The underlying conduct, while perhaps satisfying the elements of a crime, 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”).
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. There is no known instance 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.
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 to public safety going forward.