Tuesday, July 17, 2012

The How and Why of NYS DMV Medical License Suspensions


As a attorney who handles many car related matters I need to understand the New York State Department of Motor Vehicles. The New York State DMV has the power to suspend, revoke, require road tests, written tests, medical information, medical examinations, and medical tests of those drivers that they feel are medically impaired. Remember a license is a privilege. A privilege is NOT a right so the proof for license issues is a little bit better than the civil standard of preponderance of the evidence. It is sometimes referred to as the substantial evidence standard. On the scales of justice it is that slight tilt  either for or against you.

What is "Fitness" to Drive?

Many medical conditions can negatively affect the physical and mental abilities of motorists. These disorders can directly affect the driver's functional ability and safety. If a motorist has impaired motor coordination, and a slow mental reaction time the chance of a crash are much higher. Fitness encompass both mental and/or physical ability.

Who Determines the Fitness to Drive in NYS?

Determinations are made by the DMV's DIB (Driver Improvement Bureau) located in Albany, NY. Within the DIB is the MRU (Medical Review Unit). They have 9 Medical Review staff consisting of:
 3 board- certified Neurologists (called the "medical consultants"), and 5 License Examiners, and 1 Clerk. The Neurologists (medical consultants) work on a rotating basis (once per week) to review specific case files.

Who Determines Which Motorists are Reviewed?

There are three ways that a person can wind up being medically reviewed by the MRU.

1. First Time Applications for a driver's license and those renewing an existing license.

You must answer questions regarding any medical conditions you suffer from when obtaining a license for the first time or renewing a license in New York State. The questions range from: "have you, or are you receiving treatment for, or have you had any disabilities, or disabling conditions that are progressively worsening?" If you answer any of this in the positive, as in, "Yes I have or Yes I am experiencing or Yes my condition is worsening" are REQUIRED to take a medical form to their physician for completion and return to the MRU (Medical Review Unit).

Future license holders or those renewing must have seen that physician (been examined for that condition/problem) within the previous 120 days for that doctor to provide the DMV MRU any information.

2. If they are reported to the DMV by an observing authority, ie. police, physician. 

If the motorist has had CONTACT with a doctor, law enforcement, the Court, hospital, or therapist they can report to the DMV. Anonymous observations and reports are not valid for review purposes. Generally these reports occur because these authorities have OBSERVED IMPAIRED BEHAVIOR. Their doctors are under NO legal obligation to report their patients but many healthcare providers feel a moral obligation to report their patients as a public safety hazard.

I have seen within my own practice police officers, county deputies, and state troopers filing referral reports on motorists. In a great many of these cases the motorists caused accidents (single and multi-car), gotten charged with moving and/or other violations, or displayed erratic behavior. Some admitted to the police that they had taken excessive prescription medication, smoked pot, used OTC (over the counter) drugs in dangerous ways, and/or ingested other substances. Some have made statements that were clearly bizarre, and out of alignment with reality. Sometimes if the police do not have a case (of charges/offenses/crimes) that are worthy of being proven (ie. no blood test, no probable cause) they will still try to get the motorist off the road.

The Element of Surprise

The referral to the DMV MRU can come as a complete surprise to the motorist. A letter from the DMV asking them to go to their physician out of the blue was not seen (recognized) as out of the ordinary course of events. Caught unaware and confused these motorists will willy-nilly have their doctors fill out and send in these forms unchecked.

When they are sent a DMV letter of suspension many have called me in a state of shock and panic. What happened? Why did it happen? They rarely relate back the precipitating incident, police stop, or accident and the referral by the authorities (medical or law enforcement) for DMV review. Their prior run in with law enforcement months prior may in fact be not even memorable to them.

Police authorities would have to file the DMV "Police Agency Request for Driver Review" form. If there was an accident involved with their motorist contact they would also submit a copy of the accident report.

Law enforcement must specify within their report why they are making a REQUEST for REVIEW.


What specifically led them to believe that this motorist was functionally impaired?

  • statements made by the motorist
  • circumstances for the crash/accident
  • observations of walking, talking, thinking, acting
  • erratic, reckless, and/or dangerous vehicle operation 

3. Referral from Family Members

I have had clients turn in reports to the DMV. This is where their family felt they were no longer able to drive because of either mental (dementia) and/or physical and/or chemical issues. BTW A diagnosis of dementia in and of itself is not proof to lose driving privileges. The physician needs to state and explain far more than the just a diagnosis.

Sometimes these family referral were unfounded, and sometimes they were of real concern. Anyone can report you to the DMV Medical Review Unit. The referral must be made with a written report on the DMV DS-7 Concerned Citizen Form. Police use the DMV DS-5 form, and Physicians use the DMV DS-6 form.

NOTE: Once Referred there is NO INVESTIGATION UNTIL you are contacted by the DMV for a possible evaluation.

What Happens Post-Referral?

If YOU self report: licensed driver who is renewing
OR a first time license applier
OR the Police report YOU
OR a Doctor Reports YOU:

THE DMV has one of two possible options:

OPTION #1 You will be given a form to take to your doctor for completion. 

NOTE: Remember that there are "Different" doctors needed for "Different" conditions:

If you suffer from epilepsy or convulsions then this must be a certified neurologist or neurosurgeon.
If you suffer from anything else then any primary care doctor will be able to complete the form.
BUT the DMV review until can request (demand) any other certified specialist.

(a) The doctor must give dates, nature of your illness, medications prescribed, testing done, results from testing, diagnosis (what you got), prognosis (what's your predictable) future, AND answer

Can this person drive a car safely?
Is this person a risk to themselves and others?

(b) Episode (symptom) Frequency is evaluated:

If you have been episode free (without symptoms affecting you) for 12 months = Approved by MRU 

If you have had an episode (with symptoms affecting you) within the last 12 months then a review by one of MRU Board-certified Neurologists is mandated.

The following are typical conditions that may require a review by the MRU Board-certified Neurologist:


seizures
hypoglycemia
low blood sugar
head/brain trauma
syncope
heart issues/pacemaker/arrhythmias
sleep/apnea/narcolepsy disorders
stroke disorder 
diabetes

Having the condition (diagnosis) must be coupled with the impact the condition is having upon you and potentially your driving. There are unstable and stable diabetics, there are people with heart problems that are fully functioning, and there are people with a host of mental issues that can still operate a car safely. Determinations have to look at the long view. The big question is "are you now or will you be a threat to the motoring public in the future?"

OR


OPTION #2 The Testing and Investigation Unit of the DIB (Driver Improvement Bureau) may decide to schedule an INTERVIEW with you at a local field office. 

An investigator will determine whether you need to submit further medical information to the MRU (Medical Review Unit) and/or A Road Test. Usually you will have a road test but not before you pass the medical review. Re-examination can also include a vision test, a written test, and/or any other recommended test.

 The Final Decision by DMV

The DMV may impose any of the following:

1. Restrictions to driving: when you drive (daylight only), certain highways, etc.
2. Suspensions to driving: temporary periods of time
3. Revocation of driving: Cancelation of privileges UNTIL ? future medical proof, testing, re-evaluation
4. Periodic Medical Statements or re-exams plus collaterals (testing, reporting, treatment records)

These decisions may be appealed for further review and hearings.

Weaknesses in the System

One of the weaknesses in the DMV license review system is that it does not provide any specialized training to it's examiners in how to observe (and to determine) conditions that could result in impaired driving. This is only compounded by the fact that it relies upon many outside physician reports (with their resultant subjectivity), and the review of it's Medical Review Unit which only has a small percentage of files actually reviewed by a doctor.

Opinions: Everyone has One 

Doctors opinions are just that opinions. They are not always right. Some people may fall through the cracks of this governmental process. People are often mis-diagnosed, overly diagnosed, and basically misread. Driver impairment based upon medical issues can be a difficult thing to assess. If a determination is made without complete information, and the necessary (thorough and proper) testing then someone may lose a license privilege unfairly.

How can I discover who made the referral for a DMV review?

You can make a FOIL request to see your DMV medical file, and forms filed against you. A Freedom of Information Law request will disclose who turned in the form requesting a review of your licensure. This is usually a police officer or physician.


Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850
607-229-5184