Opinion 08-35

March 13, 2008

Digest:         A judge may include a defensive driving program that specifically targets drivers who are under age 25 on a list of defensive driving programs that defendants may complete as part of their sentences for committing traffic-related offenses. The judge must advise such defendants, however, that completing the program will not render them eligible for penalty point reductions or for insurance rate reductions.

Rules:          22 NYCRR 100.2(C); Opinions 03-107; 99-151 (Vol. XVIII); 98-98 (Vol. XVII); 97-16 (Vol. XV).

Opinion:

         A judge asks whether he/she may sentence defendants under the age of 25 who are convicted of traffic-related offenses to complete a defensive driving program that specifically targets young drivers. According to the judge, only one individual in the vicinity of the court’s jurisdiction is certified by the National Safety Council to offer the particular program. Unlike defendants who complete other defensive driving programs that are available in the vicinity of the court’s jurisdiction, those who complete the program sponsored by the National Safety Council are not eligible for penalty point reductions or for insurance rate reductions.

         Pursuant to section 100.2(C) of the Rules Governing Judicial Conduct, a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others. This Committee previously has advised, therefore, that judges cannot endorse or promote service providers, either actively or tacitly (see Opinion 03-107 [a judge should not permit a private, for-profit mediation program to place promotional brochures in the courthouse and should not suggest that parties use the service]; Opinion 99-151 [Vol. XVIII] [a judge may not be an advisor to, or be listed on the letterhead of, a for-profit company involved in courtroom automation]; Opinion 98-98 [Vol. XVII] [a judge should not submit a letter for publication in a bar association newsletter encouraging attorneys to enroll in the association’s fee-based legal referral service]; Opinion 97-16 [Vol. XV] [a judge may not submit a letter supporting a private business in its bid to continue providing services to a municipality]).

         While the judge in the present inquiry also cannot endorse or promote the defensive driving program sponsored by the National Safety Council, he/she may include it on a list of possible programs that a defendant may choose to complete as part of a sentence for committing traffic-related offenses. The judge must advise defendants, however, that they will not be eligible for penalty point reductions or for insurance rate reductions upon completing the National Safety Council program.