Last summer, we learned that the New York State Department of Motor Vehicles was charging motorist-only surcharges of $88, and applying motorist-only driver’s license penalty points, to cyclists who pled or were found guilty of traffic violations. Our law firm brought a class action to address DMV’s unlawful penalization of cyclists as if they were drivers.

DMV’s response? Refund a “sample” of the surcharges, limit the same wrongful penalties going forward, and urge the court to dismiss the class action suit as “moot” in light of the agency’s hasty and incomplete effort to make up for its mistakes.

Last week, DMV filed its motion to dismiss the class action.

If you want to help make sure that every cyclist wrongfully penalized by DMV gets refunded the unlawful $88 surcharge and has the unlawful points lifted from his or her driver’s license, read on.

First, here’s a summary of the steps DMV claims to have taken to address the problem::

• Reviewed all traffic tickets issued in 2014 for red light, counterflow, and failure to yield to a pedestrian, to identify cycling violations that were miscoded as motorist violations;
• Reviewed “several additional samples of potentially erroneous[ly]” coded tickets — samples of undisclosed size — from the prior 25 year period;
• Instituted a new ticket form that no longer falsely asserts that cyclists must pay the “mandatory” surcharge, and instead clearly indicates that cyclists pay no surcharge (pictured below);
• Changed the DMV “Plead & Pay” website in similar fashion, to notify cyclists they should not pay a surcharge;
• Conducted training of data-entry staff and created a dedicated four-person team of ticket processors in Albany to review cycling violations.

To the extent these representations are accurate, as a cyclist and cycling advocate I applaud them. DMV appears to be moving reasonably expeditiously toward handling cycling violations in a lawful and appropriate manner. But more work is needed. Here’s why, and how you can help.

Have these changes been implemented?

DMV has created a new form of traffic ticket that makes clear cyclists pay no surcharge. But is it in use yet?  We haven’t seen it. If you have received the new form of ticket (pictured below), please let us know.

Is a “sampling” approach enough?

Recall that in her September 15 letter to State Senator Brad Hoylman, former DMV Commissioner Barbara Fiala stated that the agency “reviewed TVB convictions on our records for the last 25 years in an attempt to identify bicycle tickets on our records that contained erroneous point assessments and/or mandatory surcharges.” The DMV now states that this supposed 25-year review included only “samples” of undisclosed size.

What confidence can we have that all cyclists unlawfully penalized as motorists have been identified by DMV’s “sampling” approach? Any cyclists who have received tickets over the last five years who paid more than $190 for a red light ticket or more than $50 for any other ticket (not including late payment penalties) should let us know.

What about the license points? 

DMV admits that it found 792 cyclists misclassified as motorists for purposes of license penalty points, and took steps to ensure these unlawful penalty points were removed. But DMV provided no notice to the affected cyclists. To check for mistaken penalty points, a cyclist would have to pay DMV $7 for a license abstract. Is that fair? And what if the cyclist was overcharged for car insurance based on erroneous points communicated to an insurer before DMV fixed the problem? All cyclists who received tickets over the last five years should review insurance records to make sure they did not overpay due to mistaken license points.

Does DMV deserve to avoid outside scrutiny?

However laudable DMV’s remedial measures, they were taken in the face of a litigation, and the agency appears to be more concerned with litigation than with making sure it does right by cyclists. Should DMV be permitted to avoid scrutiny from outside the agency, and to dodge responsibility for paying for the legal costs and expenses of that outside scrutiny and of bringing the problem to light? Government agencies typically have to accept outside auditing and pay plaintiffs’ legal fees after systematically violating civil rights, as DMV has done here. You can help make that happen by looking over your own records and letting us know of any questions or concerns here.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.