Ugh. You lost your TVB hearing. What next?
There’s good news and bad news, as they say, but in truth, it’s pretty much all bad news.
The "good" news: You have the right to appeal! (I added the exclamation point to convey your expected excitement at this remarkable opportunity.)
The bad news: That right isn’t a viable option for most motorists. Womp womp.
An appeal may be filed for a TVB conviction up to 30 days after the hearing date. Appeals may be filed online or by mail — I recommend filling online. There is a $10 appeal fee.
The appeal form will ask if you want to appeal the conviction, the penalty, or both. If you’re going through the trouble of appealing, you might as well appeal both.
The form will also ask if you want a stay of suspension. This only applies, of course, if the judge suspends your license as a result of a conviction. A stay means that the suspension is put on hold while the Appeals Board considers your appeal. Most of the time, the stay will be granted if you request one.
After the DMV processes your appeal in Albany, they will send you a letter asking if you want to review the transcript of your hearing. Every TVB hearing is on tape. When a transcript is requested, the tape of your hearing is mailed to an outside vendor, where someone listens to the tape and types up a word-for-word transcript of everything that was said during the hearing. The transcripts read rather like a boring one-act play.
You did it! I saw you do it!
Nuh-uh, no I didn’t!
And so forth.
The transcripts cost a fee of $50, which you must pay promptly. This is a labor cost, so any unused funds will be returned to you. Unless your hearing went on for quite a while, you can expect to get some of that money back.
Once you have the transcript, you can relive the hearing that you already lived through once and make arguments about why the judge was incorrect.
Sounds pretty easy. But it’s not. An appeal can only be overturned if (legal mumbo-jumbo ahead!) the judge made an error of law against you that was outcome determinative.
What does that mean? The judge must have misapplied or misinterpreted something in either the Rules and Regulations that govern the Traffic Violations Bureau, the State’s Vehicle and Traffic Law (VTL), or the New York City Traffic Rules. If you don’t know anything about these things, congratulations — you’re a normal person. Only traffic lawyers and judges know this stuff, because it’s our job to know it.
And, not only that, the misapplication must be “outcome determinative.” That’s the snazzy legal way of saying that it made the difference in your case. To put in terms of logical causation: But for the judge’s mistake, the ticket against you would have been dismissed.
Findings of fact are not reviewed on appeal. The appeal is not a second hearing. You don’t physically attend your appeal, nor do the judge or the officer in your original hearing. The appeal itself consists entirely of a piece of paper read by someone in Albany. You write down your argument as to why you should have won, and the Board reads it and decides. Whoever reads the appeals (more on that later!) does not have the ability to look you, or your accuser, in the eye. Thus, they will not overturn the decision of a judge who had the ability to do so, and already decided against you. They will only decide on arcane legal measures.
We don’t even know for sure who actually reads the appeals. There’s a rumor that they are read by DMV law clerks in Albany, not actual judges or lawyers. (I said that’s a rumor — don’t sue me, DMV!) The opinions are not signed by anyone, so it’s impossible to know for sure.
Appeals take a few months to process, although very few, if any, were completed during the early months of the pandemic, creating a backlog. You will receive the Appeals Board's decision in the mail.
If all this has made you interested, for some reason, in appealing your own ticket, you may be wondering: Does my office handle appeals? Usually, no, for the aforementioned reasons. They almost never work, and they take time and effort. I would have to bill you a substantial fee, more than I charge to actually represent you at a hearing, and you will not have a great likelihood of success. Once I explain this to clients, they usually choose not to appeal.
There are rare exceptions when I will pursue an appeal. It’s way too much legalese for me to explain those circumstances here. But there are a few very specific fact patterns that can, at least possibly, yield a successful appeal. If I see this on a case I am handling, I will do the appeal for no fee. If I did not represent you for the case, that means I don’t know the precise facts of what happened during the hearing, and I will decline.
A much better bet? Hire the attorney before the hearing. You'll have a much better chance of winning that in any appeal. If you did your hearing on your own, I would submit that an appeal is likely a waste of your time and money.