How to win a POST-suspension hearing
Summary Suspension Hearings and the Nnebe Decision
After a taxi or for-fire vehicle driver is suspended based on an arrest, he has a right to a hearing within ten business days. Those hearings are before the Office of Administrative Trials and Hearings (OATH), not TLC judges as used to be the case. The issue at these hearings is NOT whether the driver is guilty of the arrest charge—indeed, officially the judges assume the drivers are guilty. It is whether the driver's licensure, while the arrest charges are pending, poses a direct and substantial threat to public safety.
The good news is that the burden of proof is on the TLC in proving that the driver's licensure poses such a threat. If it does not, the driver should be reinstated. That is why, if the OATH Administrative Law Judges (ALJs) follow the holding the Court of Appeals ruling in Nnebe v. Daus, 931 F.3d 66 (2d Cir. 2019), as they should, a large majority of drivers who request hears are reinstated. While most drivers are represented by counsel, some drivers represent themselves and also prevail.
The Hearings
A. The Burden of Proof: It's on the TLC; an Arrest is not Enough
In Nnebe, the Court said, “It is possible for a driver to be charged with an act that itself endangered public health or safety, but that is insufficient to demonstrate that the driver would continue to pose a threat if allowed to retain his or her license.” 931 F.3d at 83. The Court added that, the crime may be “a sole infraction in an otherwise spotless record” or the underlying conduct, while satisfying the elements of a crime, may be “technical or mitigated, such that continuation of the driver's license did not pose the kind of threat conjured by the general nature of the crime charged.” Id. at 82. OATH ALJs have also made clear that the TLC must demonstrate a continued direct and substantial threat. See Taxi & Limousine Comm'n v. Azad, OATH Index No. 142/20 at 6 (Aug. 15, 2019), adopted, Comm'r Dec. (Oct. 15, 2019), appended (“[I]n Nnebe, the Second Circuit placed the burden squarely on the Commission to show that respondent's continued licensure would pose a direct and substantial threat to the public health or safety”). Just as important, the mere fact of arrest is insufficient to demonstrate such a threat.
B. The TLC's Case
Despite having the burden, the TLC never even attempts to meet it, at least not with testimony. TLC prosecutors invariably introduce what the ALJs call “documentary evidence” and rest their case. This documentary evidence usually consists of: a notice from the Division of Criminal Justice Services that the driver has been arrested, which states the arrest charge; a TAMIS printout that shows the respondent is in fact licensed by the TLC; a printout of the driver's DMV record, and the NYPD complaint.
C. Driver Motions
None of these documents, separately or together, show the driver presents an ongoing threat. For that reason, I advocate moving to dismiss at the end of the TLC's case on the ground that the TLC has not made a prima facie showing of dangerousness and has not met its burden of proof. These motions have never succeeded. But they are worth making to get the ALJ thinking along the lines of the TLC having the burden and its failing to meet it.
D. Untimely Hearings as Grounds for Dismissal.
OATH has held in a ruling adopted by the chair that if a driver is not afforded a hearing within ten days of a request, the petition must be dismissed and the driver reinstated. Taxi & Limousine Comm'n v. Sow, OATH Index No. 467/20 (Oct. 15, 2019), adopted, Comm'r Dec. (Oct. 17, 2019). The ten-day clock starts from when the driver first requests a hearing, not from the day the TLC agrees to schedule one. Taxi & Limousine Comm'n v. Singh, OATH Index No. 1245/20 (Jan. 30, 2020), adopted, Comm'r Dec. (Feb. 5, 2020) (noting that when the driver first called, his attempt to schedule a hearing was rebuffed). Sometimes the TLC misses this deadline and OATH should and will dismiss the TLC's petition.
E. The Driver's Case
ALJs have cited numerous factors in determining whether the driver is dangerous. These can be brought out on direct examination of the driver.
(1) whether the driver was issued a desk appearance ticket at the time of his arrest or was released without bail at arraignment. If the arresting officer did not think the driver worth detaining at the time of arrest or if the arraignment judge released the driver on his own recognizance, how dangerous can he be. See Taxi & Limousine Comm'n v. Francois, OATH Index No. 651/20 at 4 (Nov. 25, 2019), adopted, Comm'r Dec. (Dec. 24, 2019) (citing desk appearance ticket and that driver was 59 years old); Taxi & Limousine Comm'n v. Ibrahim, OATH Index No. 891/20 at 4 (Nov. 25, 2019), adopted, Gen. Counsel letter (Dec. 9, 2019) (citing desk appearance ticket). Another factor a driver may cite is that the complaining witness's injuries are minor or nonexistent.
(2) Where a driver lacks a criminal record and has an excellent driving history, this tends to support a finding that the pending charges are an aberration and pose less of a risk to the public. See, e.g., Taxi & Limousine Comm'n v. Cabrera, OATH Index No. 3578/23 at 6-8 (July 11, 2023), adopted, Comm'r Dec. (July 12, 2023). Rarely do drivers have prior convictions. If that's the case, his lawyer (or the driver himself) can argue that even if he is guilty of the arrest charge—which he likely is not— the act is an aberration, unlikely to be repeated. It would be especially unlikely for a driver with no prior convictions to re-offend while the arrest charge is pending. See Taxi & Limousine Comm'n v. Azad, OATH Index No. 142/20 (Aug. 15, 2019) at 6, adopted, Comm'r Dec. (Oct. 15, 2019), appended (lack of prior criminal record a “favorable” factor for driver).
(3) whether the driver has ever been convicted by the TLC tribunal of assaulting or threatening a passenger. The TLC may prosecute a driver for rule violations based on an allegation that he assaulted or even threatened a passenger or TLC official even if that conduct has never led to a criminal charge. If the suspended driver has never harmed, assaulted or threatened a passenger (and has never even been accused of doing so) that is evidence that the alleged crime is out of character and unlikely to be repeated while the instant charges are pending. See Taxi & Limousine Comm'n v. Singh, OATH Index No. 701/20 at 7 (Nov. 1, 2019), adopted, Comm'r Dec. (Nov. 19, 2019) (suspension lifted for licensee charged with assault where it appeared that licensee, who had a spotless history of law-abiding behavior and showed substantial regard for passenger safety, reacted to extraordinary provocation).
(4) the number of years the driver has been licensed. See Taxi & Limousine Comm'n v. Francois, OATH Index No. 651/20 (Nov. 25, 2019), adopted, Comm'r Dec. (Dec. 24, 2019) at 8 (citing driver's 30-year tenure).
(5) the driver's overall TLC record. Taxi & Limousine Comm'n v. Singh, OATH Index No. 701/20 at 7 (Nov. 1, 2019), adopted, Comm'r Dec. (Nov. 19, 2019) (suspension lifted for licensee charged with assault where it appeared that licensee, who had a spotless history of law-abiding behavior and showed substantial regard for passenger safety, reacted to extraordinary provocation); Francois at 4 (“the overall record and character' of the respondent falls short of establishing that he poses a continuing direct and substantial threat to the public safety”).
(6) the driver's age and maturity (such as whether he supports a family). See Taxi & Limousine Comm'n v. Ibrahim, OATH Index No. 891/20 (Nov. 25, 2019), adopted, Gen. Counsel letter (Dec. 9, 2019) at 4 (“Respondent impressed me as a mature, credible witness”); Francois at 5 (noting that driver is sole supporter of his family)[i];
(7) the facts and circumstances surrounding the arrest. Nnebe, 931 F.3d at 82 (“[I]n the majority of cases, the further removed the crime is from the driver's job, the less ‘direct' the threat may be if he or she remains licensed. Depending on the surrounding circumstances and the driver's history, the threat may also be more or less ‘substantial'”).
(8) that the alleged offense occurred while the driver was off-duty and did not involve a passenger or TLC official. Many drivers are arrested after domestic violence incidents or based on disputes with particular individuals that are unlikely to be repeated with passengers. Even if the driver committed the crime charged in these circumstance, that fact does not suggest an immediate threat to passengers. See Taxi & Limousine Comm'n v. Martinez, OATH Index No. 1778/20 (Mar. 19, 2020) at 2 (“there was substantial provocation here, he came to the aid of his wife and his minor daughter, and the incident took place at his home”).
(9) whether there are mitigating factors as to the alleged offense. Nnebe, 931 F.3d at 82 (“The underlying conduct, while perhaps satisfying the elements of a crime on the TLC's list, may also be such as to persuade an ALJ and the TLC Chair that the offense was technical or mitigated, such that continuation of the driver's license did not pose the kind of threat conjured by the general nature of the crime charged”); Taxi & Limousine Comm'n v. Singh, OATH Index No. 701/20 at 6 (Nov. 1, 2019) (“this appears to be the type of situation discussed in Nnebe, where underlying conduct meets the technical definition of a crime, but does not show that the driver posed the kind of danger ‘conjured by the general nature of the crime charged'”); Francois at 8 (lifting suspension where “conduct is mitigated”); Taxi & Limousine Comm'n v. Warren, OATH Index No. 1081120 (Dec. 27, 2019), adopted, Comm'r Dec. (Jan. 29, 2020) (citing compelling testimony that complainants were the aggressors). Where a driver is acting in self-defense, that is certainly relevant and suggests he is not a threat. Taxi & Limousine Comm'n v. Sidhu, OATH Index No. 2423/24 (Mar. 15, 2024), adopted, Comm'r Dec. (Mar. 18, 2024), appended.
This list, of course, is not exhaustive. Drivers can introduce any other evidence that seems relevant.
F. Testifying About the Underlying Alleged Crime:
There are naturally some concerns about having a driver facing a criminal charge testify about the underlying criminal allegation. I suggest that the threat of self-incrimination is small. Trials in in misdemeanor cases are rare. The driver can deny the allegations and it is very unlikely that that the TLC prosecutor will be able to skillfully challenge that testimony if she challenges it at all. I have never heard of a prosecutor obtaining a transcript of an OATH hearing, much less using it in a criminal proceeding. But all that said, it's a decision for the driver and his counsel to make in their particular case.
Even if the driver does not want to testify about the underlying events, he can testify to the context (such as the crime being off-duty). Otherwise, the NYPD complaint can be used to demonstrate the context.
It is critical to note that the requirement that the ALJ assume that the charges are “true” does NOT extend to the underlying particulars or every detail of the NYPD complaint. Particular allegations can be false and are subject to challenge. ALJ Casey states in Taxi & Limousine Comm'n v. Singh:
Asserting that it had limited access to information regarding the criminal case, petitioner argued that, not only should the criminal charges be presumed true, but the additional details in the complaint should also be accepted as true (Tr. 74-75). Petitioner is mistaken. As respondent's counsel noted, petitioner made no effort to speak to respondent before suspending his license and there was no evidence that petitioner attempted to speak to the complainants, the police, or the prosecutor (Tr. 70). Though a post-suspension hearing is not intended to be a minitrial on the criminal charges, which petitioner's rules deem to be true, neither petitioner's rules nor the decision in Nnebe support the sweeping proposition that every additional detail in a complaint must be accepted as true. On the contrary, the additional details of the complaint, which rely on multiple levels of hearsay, should be weighed against the rest of the evidence. OATH Index No. 701/20 (Nov. 1, 2019), adopted, Comm'r Dec. (Nov. 19, 2019)
Likewise in Francois, ALJ Lewis writes, “[G]iven the limited detail in the police report and respondent's consistent testimony that he got out of the car to speak to the pedestrian and was not aware of actual injury, this case is much different from those of other drivers whose license suspension following their arrest for leaving the scene of an accident was continued.”
G. Character Witnesses
Drivers have used character testimony to good effect. This is easy to do; all one needs is a witness who knows the driver well and who can testify that he is a generally, peaceful person. The witness should need minimal preparation and would likely wind up testifying for 10 minutes or so.
H. Points in Summation
In summation, counsel should again emphasize the TLC bears the burden of proof and that evidence of the fact of arrest is insufficient to carry that burden. Counsel may argue that the driver's overall record and his lack of criminal record indicate that even if the driver is ultimately found guilty of the arrest charges, his conduct was an aberration, inconsistent with his character and is unlikely to be repeated, especially not while the arrest charges are pending. Counsel may argue as well that the evidence (from the driver's own testimony or even from the NYPD complaint) against the driver is weak, that there are factors in mitigation, that there is no evidence that the alleged victim was injured or that the incident was specific to a time or place. For these types of reasons, even if the charges are assumed “true,” the driver cannot be deemed a direct and substantial threat going forward.
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