2nd honker
Aug. 18, 2015
News Picks from NYSDA Staff
News Picks
Third Department Upholds DMV Rules on Re-licensing of Drivers with Multiple DWI Convictions. In a 3-2 decision, the Third Department has upheld the DMV regulations that severely restrict the relicensing of drivers after three or more DWI convictions. Matter of Acevedo v NYS Department of Motor Vehicles, 2015 NY Slip Op 06467 (3rd Dept 8/6/2015). The majority found that the DMV Commissioner did not exceed the bounds of her regulatory authority when amending 15 NYCRR Part 136, "but rather implemented the Legislature's policies of promoting highway safety and reducing instances of impaired and intoxicated driving." The court also held that the DMV's denial of the petitioner's application for a new license did not violate the Ex Post Facto Clause of the U.S. Constitution, which "applies only to penal statutes and not to regulations such as those at issue here ...." The two dissenting justices concluded that "the Commissioner exceeded the scope of her regulatory authority by adopting" the emergency regulations in 15 NYCRR 136.5(b)(3): "By adopting a policy creating an automatic stay [of relicensure applications] in all cases absent 'unusual, extenuating and compelling circumstances,' the Commissioner has 'impose[d] a solution of [her] own' to address the public safety issue created by recidivist drivers ...."

According to a New York Law Journal article about the decision, the DMV has revoked just under 8,000 driver's licenses and 975 other drivers have had their license reinstatements delayed or have installed ignition interlock devices since the regulations took effect in 2012.

As a reminder, in cases involving an alcohol/drugged driving charge, attorneys should get a copy of their clients' lifetime driving record from the DMV. Without the lifetime record, attorneys cannot properly advise their clients about whether a new conviction will or may result in driver's license restrictions or a permanent denial of a driver's license under 15 NYCRR Part 136. More information about driver's license penalties for multiple convictions is available on the DMV website.

COMPAS - Revised Practice Guide for Probation Departments. The Office of Probation and Correctional Alternatives within the Division of Criminal Justice Services has issued revised guidance to county probation departments about use of the COMPAS risk and needs assessment instrument. The guidebook includes basic information about COMPAS and guidelines for its proper use in such matters as pre-trial release recommendations, interim probation, deferred sentencing, and pre-plea and pre-sentence report investigations. For those unfamiliar with COMPAS, the guidebook also includes a sample completed risk assessment.

State-Specific Resources from the Interstate Commission for Adult Offender Supervision. The Interstate Commission for Adult Offender Supervision, which oversees the implementation of the Interstate Compact for Adult Offender Supervision (ICAOS) throughout the 50 states, D.C., Puerto Rico, and the U.S. Virgin Islands, offers a number of general and state-specific resources about the Compact on its website. Resources include a directory of all Commission staff and state compact staff for probation and parole (New York directory); conditions of probation and parole supervision for most compact participants; other state documents, including state compact statutes and sex offender registration requirements; and the ICAOS Rules and Bench Book. New York has implemented the ICAOS through Executive Law 255-mm. Recently added to the website is the NYS DCJS publication, "What New York Jails Need to Know about the Interstate Compact." A public version of the Interstate Compact Offender Tracking System is also available, which allows the public to search for information about individuals whose supervision has been transferred to another state or are in another state with permission while a transfer is under consideration.

August 2015 Issue of the New York Children's Lawyer is Available. The most recent issue of the New York Children's Lawyer, published by the Appellate Divisions, is available here. This online-only publication appears tri-annually in April, August, and December. Prior issues of the publication are available through the websites of the Office of Attorneys for Children for the Third Department and the Attorneys for the Child Program for the Fourth Department. Contents of this issue include news briefs, a listing of "Recent Books and Articles," case summaries, and a reprinted article on Shaken Baby Syndrome. The initial publication of that article was noted in the Mar. 31, 2015 edition of News Picks. 

Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance from HHS and DOJ. The U.S. Department of Health and Human Services and the U.S. Department of Justice, Civil Rights Division, Disability Rights Section have issued a new resource titled "Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act." According to the joint press release:

The technical assistance addresses disability discrimination complaints that HHS and DOJ have been receiving from parents who have had their children taken away from them as well as individuals who have not been given equal opportunities to become foster or adoptive parents. Noting that the goals of child welfare and disability non-discrimination are complementary, the technical assistance provides an overview of Title II of the ADA and Section 504 and examples about how to apply them in the child welfare system, including child welfare investigations, assessments, guardianship, removal of children from their homes, case planning, adoption, foster care, and family court hearings, including termination of parental rights proceedings. It also underscores that Title II and Section 504 prohibit child welfare agencies from acting based on unfounded assumptions, generalizations, or stereotypes regarding persons with disabilities.

The document includes a helpful question and answer section, which addresses issues such as what the disability nondiscrimination laws require of child welfare agencies and courts and how aggrieved persons can file a complaint.

The Feb. 26, 2013 edition of News Picks provided information about other resources for assisting parents with disabilities, including the National Council on Disability report, "Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children," and the Bazelon Center for Mental Health Law's page on parental rights of parents with mental disabilities.

Federal Bill to Keep Children Out Of Foster Care. Members of the Senate Finance Committee, including New York Senator Chuck Schumer, introduced The Family Stability and Kinship Care Act. Currently, most federal child welfare aid is spent on foster care. Twenty-nine states, as well as the District of Columbia and one tribe, have applied for waivers and currently participate in Title IV-E (of the Social Security Act) Demonstration Projects. The waivers allow states to distribute funds before a child is removed from the home and provide front-end services that prevent further state intervention and the trauma of removal. The NYC Administration for Children's Services operates a demonstration project in New York State. More information about the NYC program and demonstration projects in other states is available here

The Act would allow all states and tribes to utilize funds the same as members of the demonstration projects have. In addition to in-home services, the bill would also lend financial support to extended family members who assume the care of children who have been removed from a home. A summary of the Act is available here. Organizations already in support of this bill can be found here. Rep. Lloyd Doggett (D-Texas) is expected to introduce companion legislation in the House in the near future.

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