Question: Fraud upon the court (NYS)

[MsSue]

What does the "Guidelines for Granting Medical Exemptions from Seat Belt Use" (C-58) say about it?

Ha! Funny you should mention that. I brought that to court with me. My exemption was also consistent with all the requirements of Form C-58. However, in view of the judge's ruling, which violated not only section 7 but C-58 as well, I wrote to the DMV (Barbara Fiala) for an opinion regarding how I could be compliant with both the judge's ruling and Form C-58 (because there's no way you can comply with both). The reply came from DMV legal counsel, which informed me (among other things) that Form C-58 "is not a statute and is not a regulation and therefore does not have the force of law." It was prepared only to serve as a "guideline" for physicians to "aid [the physician] in preparing exemptions" and is "not binding upon the judiciary." The only criteria for adjudication, according to the letter, is "statutory," so that legally, an exemption to section 3a need conform only to the criteria listed in section 7, which is 1) is the condition ("handicap") certified by a physician and if so, 2) does the certification state the nature of the handicap and the reason why wearing the safety restraint is inappropriate. Form C-58, counsel went on to state, has been withdrawn "specifically because of your case. It is no longer available" while it undergoes "review and possible revisions to make it more clear."

So, in a nutshell, there IS no more Form C-58 (thanks to me!), only section 7. The two criteria above are the only criteria that a judge should consider in determining the adequacy of an exemption to section 3a. It need not be dated. It can never "expire." There is nothing to compel active possession, nor is there any language to prevent an affirmative defense based upon constructive possession. It need not be renewed in 6 months (for a temporary condition) or every 4 years (for a permanent condition), as recommended in the now-defunct C-58. There is no "height requirement," either specified or recommended (C-58 used to recommend 5' tall or under).

I think it is still mentioned in the DMV brochure about seat belts, but if you try to locate a copy of C-58 on an Internet search or even search the DMV site, you won't find it. If you go to your local DMV office, they'll give you a dumb look but not C-58. Legal counsel wasn't kidding, it has definitely been withdrawn and no longer adds anything to the criteria in section 7.

 

[MsSue]

Really. They do make seatbelt devices that will allow a short person to wear the seatbelt. I purchased mine at WalMart in the Baby section. Makes the seatbelt hit in the right zone.

Was using one of those the first time I got ticketed, back in 2009. The cop said it was an "illegal device." However, they were recommended by the (now defunct) Form C-58, which I brought with me to court along with the illegal device. The prosecutor didn't even look at either the form or the device. She threw the case out and told me that they are not illegal but they won't stop a cop from giving you a ticket if they think it positions the seat belt incorrectly. She recommended I get an exemption, which I did.

I don't know if you are from NY or not, but the seatbelt law has like 13 sections to it. There are 2 sections labeled "3a" (?). The first "3a" states you have to wear the seat belt while operating a motor vehicle. The second "3a" describes how it should be positioned. It was an addition to the law that was passed when NY troopers found that too many people were placing the shoulder harness part behind them or otherwise positioning them (for comfort) in a way they were not intended to be worn, and the judges were dismissing all their tickets because the law didn't address that issue. Now it does.

 

[TigerD]

Your response is exactly why I did not want to "try" this case on this forum by posting details. Suffice it to say I am tall enough to drive a motor vehicle without modifications. I am not tall enough to wear a seat belt safely. Any further answer to your conjectures are not worth my time.

P.S. Are you sure you aren't a judge in one of the NYS justice courts?? or a prosecutor?? Because that is the only other place I have encountered this kind of reaction.

That was your evidence to present. You didn't. You lost.

DC

 

[MsSue]

That was your evidence to present. You didn't. You lost.

DC

Well, you make it sound so simple, and it's not. You weren't there. You don't know *why* I lost. I do, and it wasn't because I was guilty.

But I do have the right of appeal. We will have to see how it turns out.

 

[justalayman]

I think it is still mentioned in the DMV brochure about seat belts, but if you try to locate a copy of C-58 on an Internet search or even search the DMV site, you won't find it. If you go to your local DMV office, they'll give you a dumb look but not C-58.

That's odd. From this website that carries a 2013 copyright notice: http://www.dmv.ny.gov/broch/c-1.htm.

MEDICAL EXEMPTION

For almost every medical problem or physical situation, wearing a seat belt increases your protection against death or serious injury. However, if a physical condition inhibits the proper use of a seat belt, you may be exempt from the seat belt law if your doctor certifies your condition and exemption in writing. Certification must be on the physicians letterhead and carried with you when you travel. For more information, see publication "Guidelines for Granting Medical Exemptions from Seat Belt Use" (C-58), available from the DMV Internet Office, by request from a DMV Call Center, and at any motor vehicle office.

I'll admit I couldn't find it on the internet but it is odd that it is mentioned on such a currently created website and not be available somewhere.

I wonder how tall you are. Per NY law, children must use a restraint. If they are under 4' 9", it is recommended they use a child restraint system. When describing how to determine if a child needs a booster seat, the one issue, which is also what you are experiencing, is that if the belt touches the throat. They suggest that if that occurs, the child should use a booster seat. Rather than not using a belt, if that is your issue, I would suggest you use a booster seat as well since, if you are that short, it is quite likely you also do not have a proper view of the road to operate your vehicle safely.

Either that or buy a vehicle with a power seat that raises enough to allow you to properly use a seat belt and be able to see the road while you drive.

 

[ecmst12]

Did you have your certification with you at the time you were pulled over? Looks like the law requires you to carry it with you. So you actually WOULD be guilty, just like if you got pulled over without your registration and insurance card with you.

 

[justalayman]

You don't know *why* I lost. .

Yes we do but I suspect you would be offended if I told you, honestly, why you lost so I will refrain from doing so.

 

[tranquility]

While there does not seem to be precedent in NY that I see, many states refer those with unusual height or girth issues to their car dealers and not to their doctors for an excuse. Those states require the person to make modifications to their vehicle even though they are outside of the norm.

That is one of the reasons you have a problem. A doctors note, in many states, is not good enough. New York? I don't know. But, even with your certification, I am uncertain you would be correct.

If you do appeal, this may make new law. New law is expensive. Good thing you don't care about that.

 

[MsSue]

That's odd. From this website that carries a 2013 copyright notice: http://www.dmv.ny.gov/broch/c-1.htm.




I'll admit I couldn't find it on the internet but it is odd that it is mentioned on such a currently created website and not be available somewhere.

I wonder how tall you are. Per NY law, children must use a restraint. If they are under 4' 9", it is recommended they use a child restraint system. When describing how to determine if a child needs a booster seat, the one issue, which is also what you are experiencing, is that if the belt touches the throat. They suggest that if that occurs, the child should use a booster seat. Rather than not using a belt, if that is your issue, I would suggest you use a booster seat as well since, if you are that short, it is quite likely you also do not have a proper view of the road to operate your vehicle safely.

Either that or buy a vehicle with a power seat that raises enough to allow you to properly use a seat belt and be able to see the road while you drive.

Wondering if they even realize it's still mentioned in the brochure. This all happened in October 2012, so they've had time to change it. I have several copies of C-58; I might have scanned it, will have to check to be sure, but if you want to see it -- can you post scans on this site?

4' 10-1.2" I sit on pillows. I have the seat drawn up so I can reach the pedals (I drive a standard). I have the belt adjusted as low as it can go, but it still goes around my neck. (yes, airbags would probably smother me, so I try not to think about that and just hope I don't get in a high-impact accident.) I drive a small car and have no problem seeing the road; however, I have looked at some mid-size cars that would pose a problem for me, so I don't even think of buying something like that. If I could afford a new car, I agree, I would get one with a more adjustable seat, but I can't afford one right now. You are correct in that the 4'9" mentioned in VTL 1229c-5 is the height at which a back-seat child passenger may use the car safety restraints without a booster. (It's the height of the average American 9-year-old boy).

 

[TheGeekess]

Was using one of those the first time I got ticketed, back in 2009. The cop said it was an "illegal device." However, they were recommended by the (now defunct) Form C-58, which I brought with me to court along with the illegal device. The prosecutor didn't even look at either the form or the device. She threw the case out and told me that they are not illegal but they won't stop a cop from giving you a ticket if they think it positions the seat belt incorrectly. She recommended I get an exemption, which I did.

I don't know if you are from NY or not, but the seatbelt law has like 13 sections to it. There are 2 sections labeled "3a" (?). The first "3a" states you have to wear the seat belt while operating a motor vehicle. The second "3a" describes how it should be positioned. It was an addition to the law that was passed when NY troopers found that too many people were placing the shoulder harness part behind them or otherwise positioning them (for comfort) in a way they were not intended to be worn, and the judges were dismissing all their tickets because the law didn't address that issue. Now it does.

I'm from Alabama. When I've been pulled over (a very rare occurrence-usually it's to satisfy a LEO's curiosity-not a big deal to me) they don't say diddly about my belt adjuster. I don't use those stupid plastic clips. They don't hold a seat belt worth anything. I've got the nice fabric one that snaps over the belt to make it sit correctly.

 

[MsSue]

While there does not seem to be precedent in NY that I see, many states refer those with unusual height or girth issues to their car dealers and not to their doctors for an excuse. Those states require the person to make modifications to their vehicle even though they are outside of the norm.

That is one of the reasons you have a problem. A doctors note, in many states, is not good enough. New York? I don't know. But, even with your certification, I am uncertain you would be correct.

If you do appeal, this may make new law. New law is expensive. Good thing you don't care about that.

The Form C-58 *suggested* (not mandated) several modifications; however, it can be quite expensive to dismantle a safety restraint system and then rebuild it to suit the height of the driver. I have made as many modifications as I can afford, and the thing still goes around my neck. NY VTL 1229-c was the legislative solution to the expense-vs-benefit dilemma, and I have no problem complying with it.

No, I don't care about the expense of making new law. If the legislature writes bad law, that is my fault how??? Right now all NY state requires for an exemption is what is specified in section 7, with which I am fully compliant. If the prosecutors and the judges don't like that, then they should seek change in the law through the legislature. Inventing fake evidence and lying so you can convict people who are complying with a law they may not like will not produce the change. It will only tick off the people they victimize who, BTW, pay their salaries, and who are guilty thereby of another crime (contempt of court).

 

[MsSue]

Did you have your certification with you at the time you were pulled over? Looks like the law requires you to carry it with you. So you actually WOULD be guilty, just like if you got pulled over without your registration and insurance card with you.

I could not find it. What you describe is something called "active possession." So, no, I could not prove active possession, so that's why I got a ticket.

But that's now why I was found guilty. In NY, and specifically with license, registrations, and other automobile-type papers, there is case law that establishes the remedy for failing to immediately hand over your license or registration or whatever, which is based on constructive possession -- if you can prove that you do have such a paper that, for whatever reason (couldn't find it, left it in your other purse. etc) you could not produce at the time of the traffic stop, then you can satisfy the law (remedy the presumptive guilt) by submitting proof that you do have such a document. So, when I brought down my doctor's note to the court the very next day and they accepted it, the ticket was remedied, and there never should have even been a trial. It should have been dismissed.

I would be guilty only if I failed to remedy the defect. But I did remedy the defect. I satisfied the law but evidently did not satisfy His Honor or his prosecutor, who felt so strongly that I was guilty nonetheless that they would lie about it. That is what I see as the problem here.

It's the same as if you get stopped for a headlight that is out, or if you can't find your insurance card. If you remedy the error within a reasonable time and submit proof to the court, the case is dismissed. At least, that is how these things are handled here in NYS. YMMV.

 

[Zigner]

I could not find it. What you describe is something called "active possession." So, no, I could not prove active possession, so that's why I got a ticket.

But that's now why I was found guilty. In NY, and specifically with license, registrations, and other automobile-type papers, there is case law that establishes the remedy for failing to immediately hand over your license or registration or whatever, which is based on constructive possession -- if you can prove that you do have such a paper that, for whatever reason (couldn't find it, left it in your other purse. etc) you could not produce at the time of the traffic stop, then you can satisfy the law (remedy the presumptive guilt) by submitting proof that you do have such a document. So, when I brought down my doctor's note to the court the very next day and they accepted it, the ticket was remedied, and there never should have even been a trial. It should have been dismissed.

I would be guilty only if I failed to remedy the defect. But I did remedy the defect. I satisfied the law but evidently did not satisfy His Honor or his prosecutor, who felt so strongly that I was guilty nonetheless that they would lie about it. That is what I see as the problem here.

It's the same as if you get stopped for a headlight that is out, or if you can't find your insurance card. If you remedy the error within a reasonable time and submit proof to the court, the case is dismissed. At least, that is how these things are handled here in NYS. YMMV.

Can you prove that your theory is mandated in the situation you are in?

 

[tranquility]

The Form C-58 *suggested* (not mandated) several modifications; however, it can be quite expensive to dismantle a safety restraint system and then rebuild it to suit the height of the driver. I have made as many modifications as I can afford, and the thing still goes around my neck. NY VTL 1229-c was the legislative solution to the expense-vs-benefit dilemma, and I have no problem complying with it.

No, I don't care about the expense of making new law. If the legislature writes bad law, that is my fault how??? Right now all NY state requires for an exemption is what is specified in section 7, with which I am fully compliant. If the prosecutors and the judges don't like that, then they should seek change in the law through the legislature. Inventing fake evidence and lying so you can convict people who are complying with a law they may not like will not produce the change. It will only tick off the people they victimize who, BTW, pay their salaries, and who are guilty thereby of another crime (contempt of court).

Not quite. The reason for the exception in this and all seat belt laws is to comply with ADA requirements and equal protection. People with disabilities that would be specially injured by a seat belt in an accident are exempted. You would only be injured by a seat belt because it is improperly fitted. This can be remedied--albeit at cost. As I said, many other states require such modifications. There is not precedent in NY that I see on the issue. Probably because the cost of the ticket is so low. That the doctor issues a certification of a disability in error does not exempt you from the law. I don't know if it is in error or not. I only suggest that in other states where the information is easily available, it is. It is not an expense v. benefit calculation, it is a state v. federal law calculation.

There was no fake evidence invented. Stop using the term lying. I understand you're all motivated by this issue, but, the process to have dealt with it in court is known. You did not seem to have dealt with it properly. Learn from the mistake as, if you don't comply in the future, you will be here again. THEN, the prosecution may try to clarify the law through the courts. Right now, because of your error(s), YOU are the one who will need to try to clarify the law through an appeal.

 

[MsSue]

Can you prove that your theory is mandated in the situation you are in?

You mean the constructive possession thing? I think so. Here are my notes:

See People v. Branigan 67 NYD3 860, 862 (1986) Failure to produce driver's license on demand) and, People V. Bohn (91 Misc dd 131 [Appointment Term, 2d Cept 1970) "refusal [to produce the license upon demand] is not a violation. . ." "refusal to comply with a request for documentation is not an independently unlawful act. . . " and falls under NY VTL 507(2) (presumptive evidence of nonpossession)

Remedied by "constructive possession" (legal-dictionary.thefreedictionary.com),

United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]) retains possession despite lack of physical contact.

VTL 1229c-7 Neither requires active possession nor prohibits constructive possession.

Is there precedent?: 2009 and 2011. Same issues, different courts, same defense - dismissed (yes, there is precedent)