New York Criminal Attorney Blog

For the most part, yes, in New York, bicyclists are subject to the same rules of the road as motor vehicles. In fact, in New York City it is not uncommon for bicyclists to be “pulled-over” and issued tickets for violations committed while traveling on their bicycles. There are, of course exceptions which will be discussed below. Generally, a bicycle is defined under New York law as a two or three wheeled device propelled by human power. The definition however, does not include devices with solid tires intended to be used by pre-teenage kids on the sidewalk. (See VTL § 102 for the exact definition).

Generally, bicyclists must obey the same rules of the road as operators of other vehicles. See VTL § 1231 which provides in pertinent part that anyone riding a bicycle or in-line skates are subject to all the rights and duties applicable to drivers of more common vehicles except for certain regulations and provisions which by their very nature have no applicability. VTL § 1231

For example, a bicyclist must stop at a stop sign. Trzepacz v. Jara, 1 A.D.3d 531, 782 N.Y.S.2d 852 (2nd Dept. 2004). And a bicyclist operating on a roadway, with few exceptions, bears virtually all of the same responsibilities a driver of a motor vehicle does. Redcross v. State, 241 A.D.2d 787, 660 N.Y.S.2d 211(3rd Dept. 1997). Just as a bicyclist must obey the same rules as the operator of a more conventional vehicle, the bicyclist is also entitled to the same rights or “right of way” as the more conventional vehicle. Therefore, a motorist must yield the right of way to a bicyclist who is already lawfully in the intersection. People v. Marr, 187 Misc.2d 280, 721 N.Y.S.2d 737 (2001 Jus. Ct. Vil of Horseheads)(Motorist found guilty for failing to yield right of way to bicyclist, who motorist subsequently hit, at an intersection where bicyclist had the right of way.)

The simple answer is no. Emergency vehicles in New York are defined as police vehicles or bicycles, ambulances, fire, corrections and civil defense emergency vehicles as well as sanitation patrol vehicles, emergency response vehicles, certain vehicles of the United States Armed forces and hazardous materials emergency vehicles. VTL § 101. Vehicle and Traffic Law section 1104 permits the above mentioned emergency vehicles to disregard certain traffic laws and regulations when involved in an emergency operation. VTL § 1104.

However, with the exception of police vehicles, the other emergency vehicles are only exempt from the traffic laws and regulations if they are traveling with an audible signal as well as at least one red light (if more than one light, at least one must be red) visible from at least 500 feet. VTL § 1104(c). For obvious reasons, police vehicles are exempt from the siren and lighting requirements. The driver of a police vehicle nevertheless still must drive with due care and may not proceed recklessly.

The above listed vehicles found in VTL § 101 are the only emergency vehicles authorized the disregard certain traffic laws and regulations (provided they do so with due care and not in a reckless manner). A member of a local volunteer fire department therefore, may not equip his or her vehicle with lights and sirens and declare it to be an emergency vehicle thus allowing him or her to disregard traffic laws and regulations while traveling to a fire. Nicosia v. Shultis, 239 A.D.2d 473, 658 N.Y.S.2d 640 (2nd Dept. 1997).

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964) (Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)

Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Many times at the New York Criminal Defense Firm of Tilem & Campbell we are contacted by individuals who have been charged with Aggravated Unlicensed Operator (VTL § 511) resulting from the suspension or revocation of their New York State driver’s license or the suspension or revocation of their privilege to drive in New York if they are an out-of-state resident. This charge is not simply a traffic violation but it is a serious criminal matter that could result in a misdemeanor conviction.

While I will not discuss the details of the Aggravated Unlicensed Operator charge in this blog, I will discuss a key element of the charge that must be attacked in order to defeat the charge. (It should be noted however that if the defendant clears up the underlying suspensions that resulted in the Aggravated Unlicensed Operator charge most, if not all, prosecutors will agree to reduce the charge to a non-criminal traffic violation. If however, the defendant has multiple Unlicensed charges, was intoxicated, injured someone or if some other aggravating factor is present, their might not be an offer and the case must be fought because a criminal record hangs in the balance.)

What is the key element to attack in an Aggravated Unlicensed Operator charge? It’s the know or having reason to know that your license was suspended or revoked element that must be attacked. In order to be convicted of Aggravated Unlicensed Operator, the People must prove that you knew or had reason to know that that your license was suspended or revoked. How can the People prove this? New York Vehicle and Traffic Law section 214 basically states that if the DMV produces an affidavit from an employee explaining the procedures DMV follows for mailing suspension or revocation notices and if electronic copies of such notices are presented in court, there is a statutory presumption that such notice was mailed.