At the February City Council hearing on NYPD traffic enforcement, council members and the public learned that a driver who injures a pedestrian or cyclist in New York City is not normally cited under the state vulnerable user laws unless an officer witnesses the violation. NYPD officials said department protocol prohibits precinct officers from issuing tickets under VTL 1146, the state statute that includes Hayley and Diego’s Law as well as Elle’s Law, because the citations are prone to being dismissed in court.

Legislation pending in Albany would amend Hayley and Diego’s Law by making clear that officers may issue tickets for careless driving whether or not they observe an infraction. Meanwhile, thousands of pedestrians and cyclists are injured in traffic every year with barely any repercussions for motorists. Though the department’s prohibition on careless driving citations does not apply to the Accident Investigation Squad — the 19-officer unit assigned to conduct full-scale investigations in instances where someone dies or is believed likely to die — NYPD rarely employs VTL 1146 to assign responsibility to drivers who injure and kill.

In 2011, the first full year after Hayley and Diego’s Law went into effect, 161 pedestrians and cyclists were killed on New York streets. NYPD issued just 84 citations for careless driving last year, according to preliminary data obtained by Transportation Alternatives from the state Department of Motor Vehicles. That number represents a drop from 2010, when officers issued 98 citations under VTL 1146.

“It is appalling that the number of 1146’s would go down after the passage of the Hayley and Diego amendments to it,” says attorney Steve Vaccaro. “Hayley and Diego’s Law was a clear indication that the legislature wanted enforcement against drivers who injure carelessly. The flat trend in 1146 citations means NYPD doesn’t care. It is also a reflection of the fact that staffing of the officers who write the bulk of the 1146’s — the AIS detectives — is far too low.”

In March, City Council Member Steve Levin announced a number of measures intended to reform the way NYPD handles traffic crashes, one of which was a bill to require that at least five officers per precinct be trained to conduct AIS-scale investigations. That bill has since been reduced to resolution status, as has another that would have mandated that NYPD investigative protocols conform to state law.

The gap between 1146 citations and pedestrian and cyclist injuries is enormous. In 2010, the latest year for which injury data are available, 13,892 pedestrians and cyclists were hurt in collisions with drivers — a large enough number that the 98 VTL 1146 tickets issued that year hardly merit consideration. Says Vaccaro: “The number of 1146 citations represent a fraction of one percent of the universe of cases in which the statute might apply — crashes involving a motor vehicle and a vulnerable street user in which the driver’s failure to use due care was a contributing factor.”

Juan Martinez, general counsel for Transportation Alternatives, describes a scenario that plays out across the city on a daily basis: “A cop gets to the scene of a crash. There are witnesses who want to tell their stories, to see justice. The cop wants to do justice. A lot of times there isn’t a lot of mystery — the wheels are over the pedestrian. But their hands are tied by the policy.”

Martinez says the prohibition against beat cops writing careless driving citations is contradicted by an opinion from the state attorney general, as well as case law.

“Because of this NYPD policy the law has been rendered impotent,” Martinez says. “The benefits to safety, which the sponsors and supporters of the law expected, we haven’t seen the effects on the streets.”

The amendment to Hayley and Diego’s Law is sponsored by Senator Dan Squadron and Assembly Member Brian Kavanagh. To date, they are the only sponsors in their respective houses. Still, in a statement to Streetsblog, Squadron expressed hope that the bill will clear the legislature.

“Our bill to strengthen Hayley and Diego’s Law was one of the 311 bills that the Senate Republican leadership attempted to shelve by sending it to the locked vault of the Rules Committee,” said Squadron. “But there’s still over a month left in this legislative session — and we’re continuing to push to provide law enforcement with the necessary tools to effectively crack down on careless driving.”