Hearing and review of driver license qualifications after loss of consciousness

Hearing and review of driver license qualifications after loss of consciousness by the New York State Department of Motor Vehicles

If you have received notice of suspension or hearing from the NYS DMV for a loss of consciousness issue, or any medical issue, do not represent yourself. Reach out to our law firm to have us represent you before the NYS DMV. Sudden loss of consciousness, whether or not it occurred while operating a vehicle, will trigger a medical review of your fitness to operate a motor vehicle by the New York State DMV. The review could result in your license being suspended. You are entitled to retain counsel to represent you before the DMV at all stages of the DMV review process, and it is highly recommended you do so. This is especially true if your case requires a medical review hearing.

Fitness to operate a vehicle in New York State

Under New York Vehicle & Traffic Law § 502 and the NYS DMV rules and regulations 15 NYCRR § 9.1, in order to be issued a driver’s license the applicant must submit proof of fitness. Sudden loss of consciousness at any time is deemed prima facie evidence of unfitness for licensing or, if the person is already licensed then prima facie evidence of revocation. The sudden loss of consciousness does not have to occur while operating a vehicle. In fact, often times the DMV is notified by medical professionals whom are treating individual.

Loss of consciousness defined

Loss of consciousness is not just totally passing out. It includes “not being aware of one's surroundings or of one's existence and the inability to receive, interpret or react to sensory impressions as the result of epilepsy, syncope, cataplexy, narcolepsy and other disorders affecting consciousness or control.” 15 NYCRR § 9.2(a). Evidence required to state a claim to the DMV for loss of consciousness is “a police accident report indicating a loss of consciousness...as the cause of an accident, admission by applicant or licensee and a complaint alleging loss of consciousness received from police agencies or others.” 15 NYCRR § 9.2(b).

Burden of proof upon allegation

Under 15 NYCRR § 9.3, Once an allegation of loss of consciousness is made against a motorist, the burden of proof shifts to the motorist to prove their fitness to operate a motor vehicle. Proof of standard of fitness includes:

  • A statement from a licensed physician that the motorist has not experienced a loss of consciousness within the previous 12-month period
  • That loss of consciousness did occur within the previous 12-month period, but its sole cause was caused solely by a directed change in medication by a physician and a medical review by the DMV of the submitted evidence agrees with that conclusion
  • That loss of consciousness did occur within the previous 12-month period, but after a physical examination by a physician the doctor recommends licensing by stating in his medical opinion that the condition will not interfere with the safe operation of a vehicle and a medical review by the DMV of the submitted evidence agrees with that conclusion
Procedures upon failure to submit evidence of fitness

Under 15 NYCRR § 9.4, if the DMV has not received an acceptable medical proof from the motorist’s physician, through either total omission or the medical review unit of the DMV disagrees with the conclusion of the submitted medical evidence, one of two things can happen. The first, and most common action, is that the DMV sends the motorist a “proposed… suspension of license” which goes into effect 30 days after the date the notice was mailed. The notice provides the motorist with an opportunity to demand a hearing. If a hearing is demanded then the suspension is stayed until the hearing date.

The other thing that could happen is that the DMV could deem the person's operation of a motor vehicle to be an immediate hazard, the DMV “forthwith…[suspends] the license… id. at (b), with a provision for the motorist to request for hearing. If a demand for hearing is not made within 30 days of the suspension, the DMV’s offer to hold the hearing shall is withdrawn.

Evidence required for immediate suspension

The DMV cannot suspend merely because it disagrees with submitted proof of fitness. To deem a motorist to an immediate hazard, the evidence must be as follows:

  • The report submitted by the motorist’s physician indicates that the motorist would create an immediate hazard if such person were to operate a vehicle on the public highway or,
  • The DMV has received evidence that such person's loss of consciousness has caused or contributed to a motor vehicle accident.

In order for a physician's, statement to be valid to deem the motorist an immediate hazard, the examination must:

  • Have occurred within 120 days of the date of such statement, and
  • Be submitted by a physician licensed in a specialty appropriate to the condition in question.
Physician’s statement may be required on a schedule

Under 15 NYCRR § 9.5, the DMV is permitted to grant licensing conditioned on a regular reporting schedule by the physician in cases whereby medicine is being taken in order to control any loss of consciousness disorder.

Medical review hearing

Hearings are conducted in conformity with the provisions of the State Administrative Procedure Act. Unlike most administrative hearings, if an adverse ruling is rendered against the motorist, the motorist does not have to first take an administrative appeal, but may immediately seek judicial relief from a court of law by commencing and Article 78 proceeding. See, 15 NYCRR § 9.6.


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