New York State Executive Chamber | Governor Eliot Spitzer

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Frequently Asked Questions Regarding New Driver's License Program

Governor Spitzer and DMV Commissioner Swarts announced that DMV would issue an administrative policy change to its offices and county clerk agents regarding how licenses may be issued – both to expand access and increase security. Some responses to this announcement represent fundamental misunderstandings of the facts and of the law. This Frequently Asked Questions document attempts to answer the most common questions we have been hearing.

Why did Governor Spitzer and DMV make this policy change?

Increasing access to driver’s licenses, tied to increased anti-fraud security measures, is good for public safety and good for homeland security.

The facts are clear:

• The fact that unlicensed drivers contribute to five times as many deadly accidents as licensed drivers. It is unlicensed drivers—not immigrants—that are a threat to public safety.
• The fact that we must continually take steps to increase the security of our license.
• And the fact that bringing people out of the shadows and into the system will create records that will help law enforcement solve and prevent crimes—including terrorism.

Have undocumented immigrants ever had access to NYS’s license?

Yes. Prior to the previous administration’s restrictions, individuals had access to New York State licenses regardless of immigration status. All they were required to do to obtain a driver’s license was prove their identity, date of birth and fitness to drive.

Furthermore, even during the policy we are now ending, non-citizens could obtain New York licenses, so long as they demonstrated that they could not get a social security number (“SSN”). New York has nearly half a million people in its database who were issued an identity document without having an SSN.

Also, notably, non-citizens may obtain SSNs. The Social Security Administration will issue a SSN to a non-citizen so long as he or she has permission to work in the U.S. Such a non-citizen could always have used his or her SSN to get a New York license. Such a license would remain valid for eight years, even if the non-citizen remained in the U.S. after his or her lawful stay expired. Thus, even under the prior DMV policy, such a person could hold a valid license despite being in the U.S. unlawfully.

To what DMV-issued licenses will the change apply?

The change will apply to all DMV-issued documents (including non-driver IDs), except those subject to the federal requirement of submission of an SSN, specifically, commercial driver licenses (CDL).

Will this policy change increase the cost of the license for applicants?

No.

Will New Yorkers still be able to use their licenses at an airport?

Yes. New Yorkers can still use their driver licenses to board planes until at least May 2013, when a federal mandate – the REAL ID Act – will require that every airline traveler have either a federally-approved license or passport to board a plane.

It is important to note that even before DMV’s latest policy change, New York State licenses would not have met the new federal requirements. In fact, no state license in the country currently meets federal requirements.

Will these changes prevent New York State from complying with the federal REAL ID Act or the federal Western Hemisphere Travel Initiative?

This new policy will have no impact on New York’s participation in REAL ID or the Western Hemisphere Travel Initiative (“WHTI”). Both of these federal programs have specific requirements that do not preclude, but in fact permit, a State to simultaneously issue different licenses that are acceptable for federal identification purposes under the REAL ID Act and WHTI and unacceptable for federal identification purposes.

REAL ID

By definition, a REAL ID compliant document may be issued only to those with a “legal presence” in the U.S. But the REAL ID Act and its proposed regulations specifically contemplate a State also issuing a license to applicants who are not legally present in the U.S., in which case such documents must say “not valid for federal purposes.”

It’s also important to note several other factors.

First, New Yorkers can still use their driver licenses to board planes until at least May 2013, when a federal mandate – the REAL ID Act – will require that every airline traveler have either a federally-approved license or passport to board a plane.

Second, even before DMV’s latest policy change, New York State licenses and licensing process would not have met the new federal requirements. In fact, no state license in the country currently meets federal requirements.

For example, before our recent announcement, our license did not meet the following REAL ID requirements:

• Mandatory in-person re-licensing/re-credentialing of all drivers;
• Laser engraving and variable information that is specific to the bearer;
• A series of check digit numbers or letters printed on the document;
• Retention of copies of all proof of ID documents submitted;
• Residence address must be printed on the document (we currently print mailing address);
• Serialized card stock;
• Document must contain full legal name with a standard of 39 characters, instead of the 20 DMV currently has;
• The use of covert taggants and/or markers on documents.

As a result of the many concerns with the REAL ID Act, including cost, privacy and effectiveness, seven states (NH, SC, GA, OK, MT, WA, ME) have already “opted out” of REAL ID, which means their DMVs will not offer a federally-approved license to their citizens even after May 2013. As a result, their residents will need a passport to board a plane as of 2013.

As for New York’s final determination on implementing REAL ID, it is premature to make a final determination one way or the other given that the final regulations from the U.S. Department of Homeland Security (“DHS”) still have not yet come out. New York has until January 1, 2010 (when the Act will apply to newly-issued licenses) to make that determination and be equipped to issue a federally-approved license. Again, the actual REAL ID travel requirements for all licenses do not go into effect until May 11, 2013 and that date may even be pushed back depending on the final regulations.

Western Hemisphere Travel Initiative

The Western Hemisphere Travel Initiative also contemplates separate licenses – federally-approved and non-federally approved – and focuses only on the acceptance of an enhanced license for the purposes of international land or sea border crossings, not on a State’s wholesale issuance of licenses for internal purposes.

WHTI-compliant licenses will be available only to those who prove U.S. citizenship. Lawfully present immigrants who have not obtained citizenship would be ineligible for the WHTI document. There is no suggestion in federal law that States that issue licenses to non-citizens (as New York has always done) will be precluded from issuing a WHTI-compliant license to citizens and, in fact, New York has already begun discussing with federal authorities the potential of a pilot program to issue a WHTI-compliant license.

Similar to REAL ID, it’s also critical to note that even before DMV’s latest policy change, New York State licenses and licensing process would not have met WHTI requirements. In fact, no state license in the country currently meets federal WHTI requirements.

For example, before our recent announcement, our license did not meet the following WHTI requirements:

• RFID Computer chip must be imbedded in document;
• Document must denote Citizenship and DMV must begin checking citizenship;
• Document must have a specifically-defined Machine Readable Zone.

It should also be noted that final regulations on WHTI have also not been published by DHS, making WHTI still somewhat of a moving target as well. New York continues to explore the possibility of implementing the Western Hemisphere Travel Initiative and has entered into discussions with DHS to facilitate our participation. We recognize the importance of travel between New York and Canada as well as the convenience that can be offered to New York residents from a travel card that could replace a passport in certain cases. Hence, we are working with the Department of Homeland Security toward the issuance of a WHTI compliant Enhanced Driver License for those citizens who desire such a card. DHS has said that WHTI travel restrictions will go into effect at some point in the summer of 2008, though that date has already been pushed back since the program’s enactment and may be pushed back further depending on the final regulations.

Does DMV have the legal authority to make the change?

Yes. The assertion that DMV lacks the power to make this policy change represents a fundamental misunderstanding of the applicable law.

First, some argue that a 1995 amendment to Vehicle and Traffic Law § 502 requires each license applicant to hold a SSN. The law was amended in 1995 to say: “the [DMV] commissioner also shall require that the applicant provide his or her social security number.” By their plain meaning, these words merely require an applicant to provide a SSN that he or she already has. They do not require someone to obtain a SSN as a condition to getting a license if the applicant does not have a SSN. The legislative history behind this change demonstrates that it was made only to improve the collection of child support payments by tracking people’s SSNs, not to ban applicants who lack a SSN. DMV, which has the statutory power to interpret the Vehicle & Traffic Law, has never interpreted section 502 to preclude issuing licenses to applicants without SSNs. That is why, even under the previous administration, applicants without a SSN could still get a license and it was perfectly legal. In fact, as a result of the previous administration’s policy, nearly half a million such applicants with no SSN are now in DMV’s system (for example, Canadian citizens lawfully residing in New York can receive New York licenses).

Second, some have asserted that the policy change can only be made through a law passed by the Legislature and signed by the Governor. This also represents a fundamental misunderstanding of the law and of recent judicial holdings. The legal authority for DMV to make this change is demonstrated by the following judicial holdings: “The broad discretionary powers granted to the Commissioner by the Legislature obviate the need to resort to the State Administrative Procedure Act to implement internal administrative procedures, such as the designation of documents acceptable to prove ineligibility for an SSN.” Cubas v. Martinez, 33 A.D.3d 96, 105 (1st Dep’t 2006), aff’d, 8 N.Y.3d 611 (2007) (“The obligation to supply ‘proof that [the applicant] is not eligible for a social security number’ is imposed by a pre-existing regulation, 15 NYCRR § 3.9. The policy plaintiffs challenge merely specifies what proof is acceptable.”).

What exactly is DMV changing?

The way an applicant proves that he or she is ineligible for a SSN will change. Under the previous administration’s policy, if an applicant did not have a SSN, he or she could still be eligible for a license if he or she demonstrates an ineligibility for a SSN. To do that, the previous administration required that the applicant show a letter of ineligibility from the Social Security Administration with attached immigration documents that prove the applicant’s lawful presence status. Going forward, for an applicant who does not have a SSN, instead of providing an SSA ineligibility letter with current immigration documents attached that prove lawful presence status, an applicant will prove SNN ineligibility by affirming, under penalty of perjury, that they have no SSN, that they are ineligible for one, and providing DMV with identity documents, including a current and valid foreign passport, that support that status.

Will undocumented immigrants be able to vote as a result of this change?

No. New York State’s Constitution requires that voters be citizens, and the Election Law provides that citizenship is demonstrated by an applicant swearing or affirming, under penalty of up to 4 years in jail and a $5,000 fine, that he or she is a U.S. citizen. No change in DMV procedures will, or could, change that.

The Board of Elections utilizes DMV data only to confirm a voter’s identity, not his or her citizenship. DMV has never tracked an applicant’s citizenship even before this recent change, and, even if it did, the Board of Elections could not lawfully rely on the DMV to perform a citizenship test for voting eligibility.

Notably, however, the changes announced last week will improve DMV’s identification of applicants, and thus reduce voter fraud, particularly by using software to compare all license holders’ and new applicants’ photos with existing DMV records to preclude someone from assuming multiple identities.

Do county clerks have the legal authority to disobey these policy changes?

No. At least a couple of county clerks who issue licenses have suggested that they will refuse to follow the DMV Commissioner’s policy change, and will instead issue licenses in ways that they personally deem appropriate. Such action would be in flagrant violation of State law.

According to State law, county clerks serve as statutory “agents” of the DMV Commissioner (Vehicle & Traffic Law § 205(1) – the clerks “shall act as the agent of the commissioner.”). Because the DMV has offices only in New York City, Albany, Buffalo, Rockland, Westchester, Onondaga, Suffolk and Nassau counties, elsewhere throughout the State, licenses may be obtained through county clerks. As agents of the DMV, the clerks issue licenses as the DMV Commissioner instructs, not as they may wish. Notably, a county clerk is deemed to be a State officer when performing functions on behalf of the State government (1969 Attorney General Opinion No. 25 – when a clerk is performing DMV functions, “there is a separation of his duties in that he is a direct agent of the State rather than the county government.”).

Accordingly, performing DMV functions as directed by the DMV Commissioner is a basic function of a clerk’s public office, and turning away an otherwise eligible license applicant raises serious equal protection issues. Thus, a county clerk who turns away an eligible applicant in derogation of the Commissioner’s policies would violate his or her oath of office. County clerks who put themselves in such a position would be subject to suit by the State and license applicants. Moreover, losing DMV functions would cost a county all associated revenue.

Aren’t we making New York less secure?

Not at all. In fact, most national security experts believe that it is far more secure to bring people into the system rather than continuing to leave them in the shadows. This way, law enforcement agencies will have a broader database of photographs and addresses with which to track criminals. In addition, Federal law and the DHS allow for licenses to be issued in these circumstances. Moreover, we are implementing a new anti-fraud security regime to enhance the security of what is already one of the most secure licenses in the nation. See below for those security measures.

What security protections are we putting in place?

In addition to the policy change, DMV will begin implementing several new anti-fraud measures:

• Document Verification Unit: Undocumented immigrants will not be able to get a license in the over-the-counter manner that lawful residents currently go through. Instead, they will submit six points of identification to a central Document Verification Unit in DMV – the first of its kind in the nation – where specially-trained staff will verify their validity.
• Document Scanning Workstations: We will also require all undocumented immigrants to present a current and valid foreign passport with photo identification—a passport that can be scanned and verified using new, state-of-the-art document scanning machines.
• Photo Comparison Technology: And DMV will implement new photo-comparison technology that will compare the photograph of every applicant against the database of photographs in the current system to make sure an applicant is not able to get more than one license fraudulently. 18 states currently use such technology.
• Residency Requirement: Before DMV begins implementing this policy, we will establish a strict residency requirement so only New York residents can get a New York license. In the past, our DMV only required that an applicant provide a mailing address, even a P.O. Box would work. That will now change. Currently, 27 states have a residency requirement and we are currently culling their best practices to ensure our residency requirement will be as close to airtight as possible.

Will this change be implemented immediately?

No. Because DMV wanted to make sure it had the infrastructure in place to take in this new population of applicants and to ensure it would not disturb regular customer service, it will phase in the implementation of the actual licensing:

Phase 1: Re-license drivers “blocked” since 2003:

• Outreach begins immediately;
• Phased in over 6-8 months;
• Actual re-licensing begins in late 2007.

Phase 2: Open up expanded system to “new” applicants:

• Begins approximately 6-8 months after the end of Phase 1.

How many states do not have a legal presence requirement?

Currently, eight other states – HI, ME, MD, MI, NM, OR, UT, WA – do not have legal status requirements for their licenses.

How much will this cost to implement?

Overall, the DMV expects to actually increase revenues as a result of more applicants coming into the system.

Aren’t we inviting another 9/11?

No. The 9/11 Commission concluded that an immigration status requirement for licenses would not have prevented the 9/11 attacks. In fact, four of the five states that issued the terrorists licenses and identity documents had immigration status requirements at the time and still issued the terrorists licenses because the terrorists could prove lawful presence status.

Moreover, in their long list of recommendations to make licenses more secure, the 9/11 Commission specifically did not recommend that states impose restrictions based on immigration status. What the 9/11 Commission did recommend was a series of steps to strengthen the security of the license system—many of which we are implementing as part of this policy change.

In fact, it was other states’ motor vehicle databases that helped investigators track down information on the terrorists. Had they never been in a database, law enforcement officials would never have had access to such valuable information as names, addresses, photographs, driving records, etc.

Did Governor Spitzer issue an Executive Order effectuating this change?

No. Executive Orders are formal instruments that are individually numbered and printed in “New York Codes, Rules & Regulations.” The change will be made, in the phases described above, using internal agency policy instructions that DMV will issue to its offices and county clerk agents, just as the previous administration did to adopt the previous restrictions. No Executive Order was ever issued by the prior administration on this subject.

Where can the public find information about the new requirements?

For more information and FAQs, visit the DMV website at www.nysdmv.com