Will the New York DMV Keep an Unlicensed Killer on the Road?

When a driver in New York loses his license, it’s up to the state Department of Motor Vehicles to decide when, or if, he gets it back. Based on a recent hearing attended by Streetsblog, the DMV adjudication process at times relies primarily on testimony from drivers involved in fatal crashes, rather than police reports or other evidence.

The New York State DMV may put the man who killed Clara Heyworth while driving without a license back behind the wheel. Photo via ##http://www.nytimes.com/2012/06/11/nyregion/police-unit-draws-scrutiny-for-its-handling-of-crashes-involving-pedestrians.html?smid=tw-nytmetro&seid=auto##New York Times##

Anthony Webb hit Clara Heyworth with a Honda Accord in the early morning hours of July 10, 2011, as she crossed Vanderbilt Avenue near Dekalb Avenue to meet her husband, Jacob Stevens. Heyworth, 28, died the next day. Webb, 43, was charged with driving while intoxicated, operation of a motor vehicle by an unlicensed driver, reckless driving, reckless endangerment, and assault, among other violations. But after NYPD bungled its investigation of the crash, all charges were dropped except unlicensed driving and driving without an insurance card, to which Webb pled guilty.

On January 28, Webb appeared before administrative law judge Marc Berger for a hearing to, according to the DMV notice, “determine whether or not any registrations, license and/or driving privileges should be suspended or revoked.” In a cramped, windowless room in a building in the Financial District, Webb sat across a conference table from Stevens and his attorney, Steve Vaccaro. (Disclosure: Vaccaro’s law firm is a Streetsblog sponsor.)

Berger set the tone right away. Having only a seven-page police report to work from — an NYPD witness failed to show — Berger did not know where the crash had occurred. When Stevens, who saw it happen, began to tell him the location, Berger snapped at Vaccaro, “He’s not to say anything. You’re strictly observers, both of you, unless I allow you to ask questions.” Minutes later, as Vaccaro looked at his notes, Berger said: “Please stop shuffling papers. Don’t touch another paper. Put it in your lap or whatever you have to do.”

By contrast, Berger’s attitude toward Webb was, for the most part, casual, if not cordial. More important, Berger looked to Webb to fill in the gaps in the NYPD report.

Berger asked Webb for a forensic analysis of the crash and the crash scene — how fast Webb was driving, the presence of street lights, whether cars were parked on the street, which direction Heyworth was walking, where she landed after the collision, and how the car was damaged.

When Webb hesitated, or struggled to answer, Berger asked leading questions, or filled in the answers himself: “What did you do when you heard the thump, if anything? Brake?”

Though Webb told Berger that Heyworth was crossing from his right, according to Stevens she was crossing from his left. But Webb had the final say on how the crash occurred. After Webb gave his version of events, Berger said, “Okay, that’s fine. That makes sense. I just need answers, and it doesn’t, you know, I’m not looking to trip you up.”

Berger even relied on Webb to tell him if he had been drinking. When a breath test was administered an hour after the crash, it indicated Webb had a blood alcohol content of .07, according a lawsuit filed by Stevens against NYPD. Prosecutors working for former Brooklyn District Attorney Charles Hynes dropped the drunk driving charge against Webb because the 88th Precinct had not calibrated the breath test machine for four years. The machine was later found to be working properly, and prosecutors were publicly admonished by a judge for not pursuing the charge.

Webb told Berger, however, that he was found not guilty of drunk driving, and that he had consumed no alcohol before the crash. This detail was accepted at face value until Vaccaro was permitted to ask questions toward the end of the hearing.

Vaccaro: “Is it true that Mr. Webb was never tried on the DWI charges?”

Berger: “Can you tell me what you mean by that?”

Vaccaro: “Well, earlier there was a statement that he was found not guilty, I believe. But in fact the charges were dropped. So there was not a trial and then an acquittal. I think that’s relevant, as opposed to the charges never being pursued.”

Berger: “Assuming that’s correct, why was that the case? Do you know?”

Vaccaro: “I do know.”

Berger: “You can tell me.”

Vaccaro: “Because there was a technical flaw in the scheduling of the calibration of the Breathalyzer machine that was used to test Mr. Webb that showed that he had a .07 blood alcohol content at the scene of the crash.”

Berger: “So was that reportedly an error, or correct, the .07?”

Vaccaro: “It was determined that the .07 was correct. However, because of the technical flaw in the calibration schedule of the machine it was not admissible in the context of a criminal proceeding.”

Berger: “Okay. [addresses Webb] Does that sound right to you?”

Webb: “No.” [gestures with hands]

Berger: “I need something verbal because we’re on tape. So whether you agree with it or not you can’t just move your hands. You have to say something.”

Webb: “I don’t agree with it. You know, far as all that, I got to have my lawyer here for all of that.”

Berger: “Okay so let’s move forward. I’m not going to adjourn the case for him to get a lawyer for that question that I’m not really, even though, I mean I, yeah.”

Vaccaro: “Is it true that Mr. Webb refused to take a second Breathalyzer test the night that he was arrested following this crash?”

Berger: [voice rising] “I can’t take any kind of action regarding any kind of DWI. That’s for the criminal court. So I’m not going to allow a whole string of questions about that. What else?”

The New York State DMV has no hard guidelines concerning when a motorist’s license is subject to a hearing. Vaccaro, who specializes in representing traffic crash victims and their families, told Streetsblog the agency takes action in most, but not all, fatality cases. “I’ve never heard of it being done in a non-fatality case,” Vaccaro said, “but it might happen.”

In this case, Webb admitted in court that he was driving in violation of his learners permit when he killed Clara Heyworth. Based on the information provided at the hearing, he has never held a valid drivers license, yet he has offenses on his record dating to the 1990s. Despite the fact that Webb killed someone while driving illegally, the DMV hearing may well result in his learners permit being restored, again clearing the path for him to obtain a full license.

The absurdity of this scenario — and, apparently, the process by which the DMV decides who may drive in New York State — was crystallized in one exchange. As the hearing drew to a close, Berger told Webb that if he didn’t file a particular form, his license would be suspended. Then he caught himself. “If you don’t have a license there’s no license to suspend,” Berger said. “But you know, it would actually suspend your permit.” Webb’s permit, of course, was already suspended.

About that form: Webb was supposed file it within 10 days of the crash. When Webb told Berger he had no knowledge of the form, Berger said, “Almost nobody knows about it.” Berger first told Webb he would have to complete the form and return it before leaving the building. But when Webb asked if he could return it later instead, Berger said, “Okay, so take it with you.”

Despite Webb’s history of unlicensed driving, it was Vaccaro, not Berger, who asked if he has driven a car since July 2011.

Vaccaro: “Has Mr. Webb operated a motor vehicle since the crash?”

Berger: “Interesting. [addresses Webb] Um, have you?”

Webb: “I don’t have [unintelligible]. I don’t know. I don’t have no car.”

Berger: “Answer me.”

Webb: “No.”

Berger: “All right.”

You read correctly: Webb actually said he did not know if he had driven a car since the crash, then changed his answer to “No.” This response was sufficient for Berger to move on. A moment later, he adjourned the half-hour hearing.

“You’ll get a decision in the mail,” Berger said.