DEPARTMENT OF SAFETY AND HOMELAND SECURITY
ORDER
SUMMARY OF EVIDENCE
A properly noticed public hearing was scheduled on December 23, 2003 pursuant to 21 Del.C. §§302 and 2733 and 29 Del.C. ch. 101 in the second floor conference room, Safety and Homeland Security Building, Dover, Delaware to receive public comment on the proposed Safety and Homeland Security Regulation (“Regulation”). The attendance sheet, record of public comments and documents received are attached to this Order.
Testimony was given by Captain Barbara Conley of the Delaware Police stating that the seat belt credit question was discussed in great depth and various options were considered. The reason that violations of § 4176(a) and (b) were chosen for credit is that they did not want to reward aggressive type driving behavior such as speeding. Also it was determined that inattentive and careless driving are the highest causes of accidents and data from previous years supports this conclusion. It was felt that they wanted to reward these less aggressive drivers because if there is a crash, seat belts are being worn. Twenty-five percent of accidents are caused by inattentive drivers, and careless drivers contribute another twenty percent.
Cheryl Roe of the Department of Motor Vehicles described how the credit would be placed on the computer.
FINDINGS OF FACT
Based on the evidence received, the Department of Safety and Homeland Security finds the following facts to supported by the record:
1. Personnel of the Delaware State Police discussed the seat belt credit issue and reviewed the data from traffic accidents.
2. The State Police recommended to the Secretary of Safety and Homeland Security that the moving traffic violations chosen for credit not reward aggressive drivers.
3. The offense of careless driving, § 4176(a) and inattentive driving, § 4176(b) are cited in forty-five percent of motor vehicle accidents.
4. No other more aggressive violation, based on a review of data from the last few years is cited in more than nine to eleven percent of accidents.
5. The Delaware State Police believe that a credit should be given to a violator if all the passengers in a vehicle being driven in a careless or inattentive manner are wearing seat belts.
6. The period of public comment for this Regulation was extended to January 8, 2004. There were two letters received by the Department regarding the proposed Regulation, one from the State Council for Persons with Disabilities dated December 23, 2003 and one from the Governor’s Advisory Council for Exceptional Citizens dated December 16, 2003.
7. No one appeared at the December 23, 2003 hearing to oppose the proposed Regulation.
8. At the conclusion of the December 23rd public hearing, it was stated that the record remained opened until the end of December, 2003.
9. The Department notes that both the State Council for Persons with Disabilities and the Governor’s Advisory Council for Exceptional Citizens criticized the restrictive or narrow scope of the Regulation because it did not include more violations. The Department declines to increase the scope of the Regulation to include the more aggressive violations cited because their inclusion would in effect reward aggressive drivers.
10. The Department finds that granting the credit to drivers violating § 4176(a) and (b) may lessen injuries from accidents resulting from violation of these sections.
THE LAW
The Secretary of the Department of Safety and Homeland Security rulemaking authority is provided by 21 Del.C. §302 and 2733 that state:
§ 302. Rules and Regulations.
The Secretary of Transportation and/or the Secretary of Safety and Homeland Security, in keeping with their respective responsibilities, may adopt and enforce such administrative rules and regulations and designate such agencies as may be necessary to carry out this title. The Secretary of Transportation and/or the Secretary of Safety and Homeland Security, in keeping with their respective responsibilities, may also adopt and enforce such rules and regulations relative to equipment, weight, size and operation of motor vehicles, provided such rules and regulations are not contrary to a positive law, as may be necessary and proper in order to conform to the rules and regulations of the Interstate Commerce Commission and in order to establish a more uniform Motor Vehicle Code and more uniform traffic rules and regulations. No rule or regulation adopted pursuant to the authority granted by this section shall extend, modify or conflict with any law of this State, or the reasonable implications thereof.
Section 4 of House Bill No. 43 as amended by the Senate Amendment No. 1 of the 142nd General Assembly States:
Section 4. Pursuant to the authority provided by Title 21, Sections 302 and 2733, the Secretary of Public Safety will promulgate rules and regulations to post credit on the driving record of those individuals convicted of specific moving traffic violations in which all passengers of the vehicle are wearing seat belts at the time of the arrest. The seat belt credit will be considered when determining license suspensions based upon the Division of Motor Vehicles’ point system. The office [sic] will annotate the traffic citation when all of the occupants in the vehicle are wearing a seat belt and the Courts will inform the Division of Motor Vehicles upon conviction.
DECISION
The Secretary hereby adopts the Regulation as proposed with clarifications noted in this Order and a copy of the Regulation as adopted is attached to this Order. The Secretary relies upon the conclusions of the Delaware State Police, his experience as a police officer and the capability of the Division of Motor Vehicles and accepts the findings of fact when promulgating this Regulation.
IT IS SO ORDERED this ___day of _________, 2004.
Honorable James L. Ford, Jr.
Policy Regulation Number 45, Concerning Driver Improvement Problem Driver Program
I. AUTHORITY
The authority to promulgate this regulation is 21 Del.C. Section 302, 21 Del.C. Section 2733(a)(4) and 29 Del.C. Section 10115.
II. PURPOSE
The Highway Safety Program Standard for Driver Licensing, as adopted by the National Highway Traffic Safety Administration, requires each state to have a Driver Improvement Program to identify problem drivers and take actions to reduce the frequency of their involvement in traffic accidents and violations. The Driver Improvement Problem Driver Program is designed to identify problem drivers, to change the problem driver’s behavior by providing information and training opportunities and, if necessary, to progressively impose sanctions as more convictions/points are accumulated on the driving record. The goal of the program is crash prevention. The steps in the program are geared to the seriousness of the driving record.
The Division of Motor Vehicles’ Driver Improvement staff uses these policy guidelines to initiate program requirements and impose license suspensions.
III. APPLICABILITY
This policy regulation interprets the following sections found in Title 21: Section 2722, Section 2733(b), (e), (j), Section 2755, Section 2756, Section 4166(d), (j), Section 4169, Section 4175, 4175a, Section 4172(a), (b), Section 4172A, Section 6702, and Section 8101.
IV. SUBSTANCE OF POLICY
1. Point System. The Division of Motor Vehicles shall identify problem drivers, educate and impose driver license sanctions based upon a point system. Violations will be assessed points based up the following:
Violations
Speeding 1-9 miles per hour over posted limit 2
Speeding 10-14 miles per hour over posted limit 4
Speeding 15-19 miles per hour over
posted limit 5
Speeding 20 or more miles per hour over
posted limit 5*
*May result in additional actions
including suspension
Passing a Stopped School Bus 6
Reckless Driving 6
Aggressive Driving 6
Disregarding Stop Sign or Red Light 3
Moving violation contained in Chapters 27, 41
or 42 of Title 21 2
Point Credits
a. A licensee who is convicted of a speeding violation from 1 – 14 miles per hour over the posted speed limit will not be assessed points for the first violation within any three (3) year period provided the ticket is paid through the voluntary assessment center.
b. Completion of the Defensive Driving Course (DDC), recognized by the Division of Motor Vehicles and approved by the Insurance Commissioner’s Office will be entered on the licensee’s driving record. The licensee shall have a 3-point credit entered on their driving record following satisfactory completion of the course. The licensee is responsible for enrollment scheduling and the payment of all fees associated with this course. DDC credit is effective on the date of course completion. DDC credit will not be applied retroactively once an action item is in effect.
c. The point credits listed in paragraph (b) and (d) shall not be considered when determining the eligibility of a school bus operator. To determine the point level for a school bus operator or applicant, use full point value, not calculated points, for the previous 3-year period.
(d) A motor vehicle licensee shall have a one point credit entered on their driving record under the Division of Motor Vehicle Point System if a driver is convicted of a violation of 21 Del. C. § 4176(a) or 21 Del. C. §4176(b) and at the time of arrest for that conviction all passengers including the driver of the vehicle were wearing seat belts. This credit shall remain on a driving record for a 1-year period. If a motor vehicle licensee has more than one conviction of 21 Del. C. § 4176(a) or 21 Del. C. §4176(b) during this one year period, where at the time of arrest all passengers including the driver were wearing a seatbelt, the motor vehicle licensee shall not receive an additional one point credit on their driving record for each conviction. However, the one point credit on the driving record shall be extended for one year from the date of the last conviction.
2. Driver Improvement Problem Driver Program. A driver enters the Driver Improvement Problem Driver Program when they accumulate 8 calculated points based upon their driving record for the previous two years. At that time an advisory letter is sent to the driver. Studies show that early intervention with inexpensive actions reduce accidents and improve driving behavior.
Convictions received from other jurisdictions are posted to the Delaware driving record. The points will be assessed on these violations as though the offense was committed in this State in accordance with the Driver’s License Compact.
“The Aggressive Driving Committee, in accordance with Policy Regulation 90, must certify all behavior modification/attitudinal driving courses. The committee has the authority to designate alternative courses to comply with the requirements of Policy Regulation 45."
The actions listed below occur as calculated points are accumulated during any 24-month period. The 24-month period is computed based upon the date of the offense and “slides” forward based upon that date. The driving record will record the actions taken. The Driver Improvement Section will conduct a record review at each step in the process and schedule interviews as necessary. The action items may be processed automatically without an interview. When the calculated points fall between the threshold limits, use the action items specified in the lower level. (Example: If the driver accumulates 9 points before any action is taken, send out an advisory letter as required when they accumulate 8 points.) If the driver accumulates 12 points before the advisory letter is sent, use the action item listed for drivers with 12 points.
Calculated Action Items
Points
8 Division of Motor Vehicles advisory
letter is mailed to the driver. DDC
credits will not impact the issuance of
an advisory letter.
12 Driver must complete an approved
“behavior modification/attitudinal
driving course” within 90 days after
notification (unless extended by the
Division). Failure to comply or upon
preference of the driver, a mandatory
2 month suspension will be imposed
in lieu of the program.
14 Mandatory 4 month license
suspension. To become eligible for
reinstatement, the driver must
complete or have completed a
behavior modification / attitudinal
driving course” within the previous
2 years.
16 Mandatory 6 month license
suspension. To become eligible for
reinstatement, the driver must
complete or have completed a
“behavior modification/attitudinal
driving course” within the previous
2 years.
18 Mandatory 8 month license
suspension. To become eligible for
reinstatement, the driver must
complete or have completed a
“behavior modification/attitudinal
driving course” within the previous
2 years.
20 Mandatory 10 month license
suspension. To become eligible for
reinstatement, the driver must
complete or have completed a
“behavior modification/attitudinal
driving course” within the previous
2 years.
22 Mandatory 12 month license
suspension. To become eligible for
reinstatement, the driver must
complete or have completed a
“behavior modification/attitudinal
driving course” within the previous
2 years.
3. Serious Speeding Violations. The Division of Motor Vehicles considers all speeding violations 20 miles per hour (MPH) or more above the posted speed limit to be a serious speeding violation that identifies the driver as a problem driver. The following actions will be taken:
a. When a driver is convicted of a single speeding violation for driving 20-24 MPH over the posted limit and accumulated less than 12 calculated points, the Driver Improvement staff will review their driving record and send the driver an advisory letter.
b. When convicted of driving 25 MPH over the posted limit, the driver’s license will be suspended for a mandatory period of 1 month. The suspension period will be increased by one month for each additional 5 MPH over the initial 25 MPH threshold. Note: The driver may elect to attend the “behavior modification/attitudinal driving course” in lieu of a license suspension if they were driving 25-29 MPH over the posted limit.
c. Anyone convicted of driving 50 MPH or more over the posted speed or driving 100 MPH or more shall be suspended for a period of one year. The driver is not eligible for an occupational license during the first three months of the suspension period.
4. Additional Sanctions Imposed by Statue or Policy:
a. Passing a stopped school bus in violation of 21 Del.C. Section 4166(d). For the first offense, one-month driver’s license suspension. For the second offense, six months suspension. For the third or more offenses, suspend the driver’s license for twelve months.
b. Driving in violation of a license restriction per 21 Del.C. Section 2722. For the first offense, send an advisory letter. Suspend the driver’s license for one month for subsequent offenses.
c. Speed exhibition violation per 21 Del.C. Section 4172(a)(d). One-month suspension for the first offense and one-year driver’s license suspension for subsequent offenses.
d. Spinning wheels violation per 21 Del.C. Section 4172(b). Send an advisory letter for the first offense. Suspend the driver’s license for one year for second and subsequent offenses.
e. Malicious mischief violations per 21 Del.C. Section 4172A. One-month driver’s license suspension for the first offense. One-year suspension for the second and subsequent offenses.
f. Knowingly permit an unlicensed person to operate a vehicle violation per 21 Del. C. Section 2755. Send an advisory letter for the first offense. Three-month driver’s license suspension for the second and subsequent offenses.
g. Driving without consent of the owner violation per 21 Del.C. Section 6702. One month driver’s license suspension for the first offense and three month’s suspension for the second and subsequent offenses.
h. Driving during suspension or revocation violations per 21 Del.C. Section 2756. A conviction for driving during suspension or revocation shall extend the period of the suspension or revocation for a like period. No driving authority will be permitted during the balance of the initial suspension or revocation period and the extended period. Any driving authority previously issued by the Division must be surrendered.
Note: For violations to be considered a subsequent offense, the violations must be under the same subsection and cannot be a combination of violations such as Sections 4172(a) and Section 4172(b). To be considered a second or subsequent offense, the convictions must be within the previous three years.
5. Occupational License. In the event of a suspension of a driver’s license pursuant to this policy regulation, the Division may issue an occupational license during the period of suspension if the applicant stipulates the suspension has created an extreme hardship. However, no such occupational license shall be issued if the applicant has two previous suspensions under the policy regulation within the previous 3 years, or if the suspension is for physical and/or mental disability, or if the license is revoked for convictions of any crimes specified in Section 2732 of Title 21 even though it causes an extreme hardship. Any driver convicted of operating a motor vehicle in violation of the restrictions imposed by the occupational license shall immediately extend the suspension period for an additional like period and shall direct the driver to surrender their occupational license. No more than one occupational license under this policy shall be issued within any 12-month period.
Drivers suspended under this program are ineligible for an occupational license for one month. If the calculated point level reaches 15 or more points in a 24-month period, an occupational license will not be issued until the calculated points are less than 15 points.
6. Calculated Points. For the purposes of this Policy Regulation, calculated points are credited at full point value for the first twelve months from the date of the violation. After the initial 12 months have expired, the calculated points will be credited at (1/2) point value for the next 12 months. The Division will only take action based upon convictions accumulated within the 24-month period following the date of the offense.
7. Moving Violations. Those violations contained in 21 Del.C. Chapters 27, Chapter 41 and Chapter 42, excluding those violations that require mandatory suspension or revocation actions. Multiple violations occurring within a 24-hour period shall be considered individual violations for the purposes of this policy regulation.
8. Advisory Letter. The Division will send an advisory letter to those drivers who accumulate 8 calculated points or when convicted of speeding 20-24 MPH over the posted limit. The purpose of the advisory letter is to express our concern about the operator’s driving habits and their impact upon highway safety. The letter will inform the driver about the Driver Improvement Problem Driver Program. An advisory letter may be sent for both point accumulations and excessive speed violations.
9. Record Review. The goal of the record review is to assess any problems the driver may have and require a course of action. The record review may result in a driver improvement interview/counseling session, medical or vision examination, knowledge and/or skills testing, restricted license, license suspension or the surrender of a license.
10. Interviews. The Driver Improvement staff may schedule the driver to attend an interview based upon the record review. The licensee may request an interview with a Driver Improvement Officer or staff member when notified of pending action against them. The following issues are open to discussion:
The driver may request an additional 90 days to complete a mandatory attendance at the “behavior modification/attitudinal driving course” or they may request a license suspension in lieu of attending the program. Any further delays in completing the program must be approved by the Driver Improvement Manager or the Chief of Driver Services.
The driver can present evidence that the convictions on their driving record belong to another driver. If proven, the convictions will be removed.
If the violation on record is under appeal by the court, the driver must submit a copy of the appeal bond and the violation will be removed from the driving record. If applicable, the suspension action resulting from this violation be removed from the driving record.
The Driver Improvement staff may require the driver to complete a medical or vision examination, pass a knowledge or skill test or restrict their driving privileges based upon the results of the interview.
11. This policy regulation shall have no effect on the revocation actions, medical qualifications or requirements, or suspension action required by statue unrelated to this policy.
V. SEVERABLITY
If any part of this Rule is held to be unconstitutional or otherwise contrary to law by a court of competent jurisdiction, said portion shall be severed and the remaining portions of this rule shall remain in full force and effect under Delaware law.
VI. EFFECTIVE DATE
The following regulations shall be effective 10 days from the date the order is signed and it is published in its final form in the Register of Regulations in accordance with 29 Del.C. Section 10118(e).