In February 2013, the New York State Department of Motor Vehicles promulgated an emergency regulation; § 136.5(b)[5] which provided for multiple periods of mandatory and discretionary ineligibility to hold a driver’s license or apply for a restored driver’s license upon conviction of “two(2) or more alcohol or drug related convictions or incidents in any combination within 25 years preceding the date of the revocable offense, then the commissioner may, in his or her discretion approve the application after the minimum statutory period. The language of this regulation was interpreted to mean that if a defendant was convicted of two violations of driving while intoxicated within twenty five years, then received a third violation, he would be eligible to apply for license reinstatement after the minimum statutory period (typically six months).
Thereafter, in May 2013, the Commissioner amended the regulation, removing the “preceding the revocable offense” language and creating a much harsher consequence; a denial of reapplication for at least two years, at which point the person may submit an application for relicensing, which the Commissioner may approve, however the license must have an A2 restriction, for a period of two years. If during that two year period the person is convicted of another alcohol or drug related driving offense, he shall be ineligible for any kind of license to operate a motor vehicle. The immediate affect of this amendment, (which was applied retro-actively to many drivers under suspension for the minimum statutory period), was an additional two year suspension, with a complete bar to licensure in the event the person was charged with a fourth violation.
The question of whether the amended regulation may be applied to those persons who, relying upon the first amendment, applied for relicensing after serving the minimum six months suspension, only to have the license revoked in favor of application of the harsher amended regulation is currently on appeal at the highest court in New York State. At issue are whether the Commissioner usurped the Legislature by promulgating rules that, in effect created harsher consequences for those convicted of DWI within the twenty five year look-back period than those who are convicted of the same number of offenses in a shorter period of time, whether the retroactive application of the amended regulation is a violation of the constitutional right of due process, whether the regulation as applied constitutes an ex-post facto law and whether the amended regulation serves to unlawfully deprive citizens of property or a fundamental right pursuant to the Fourteenth Amendment of the U.S. Constitution.
The Appellate Division, Third Dep’t addressed these issues in The Matter of Acedevo v. New York State Dep’t Of Motor Vehicles , 2015 NY Slip Op 06467, (N.Y. App. Div. 2015). Petitioner was convicted of driving while ability impaired in 2003 and driving while intoxicated in 2006 and 2008. As a result of his 2008 conviction, petitioner’s driver’s license was revoked for a minimum period of one year (see Vehicle and Traffic Law § 1193 [2] [b] [3]). In February 2012, respondent Department of Motor Vehicles (hereinafter DMV) approved petitioner’s application for a new license, but withdrew its approval three days later. Shortly thereafter, DMV imposed a statewide moratorium on the review of licensure applications filed by applicants with multiple alcohol- and/or drug-related driving offenses pending the adoption of emergency regulations affecting the relicensing of recidivist drivers.
In a three to two decision, the court upheld the lower court decision that 1. The case was nonjusticiable, because at the time of the appeal, the Petitioner had not completed serving the minimum statutory period and therefor, was not subject to the five year revocation or subject to the restriction of an interlocking device. The court held that “the harm sought to be enjoined is contingent upon events which may not come to pass, the claim . . . is nonjusticiable as . . . speculative and abstract” ( Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; see Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 97 AD3d 1085, 1087 [2012], mod on other grounds 23 NY3d 1 [2014]; Matter of Adirondack Council, Inc. v Adirondack Park Agency, 92 AD3d 188, 191 [2012];
The court further held that the Legislature had not preempted the field of DWI regulation and that, the Commissioner is vested with broad regulatory authority such that, it was in his sole discretion to promulgate rules with respect to licensure for the purpose of ensuring highway safety and uniform application of regulations for recidivist drivers who have received three or four violations in the past twenty five years. With respect to the fundamental right to travel, the courts have held that a driver’s license is a privilege, not a protected fundamental right. The court also held that the ex-post facto clause did not apply to these regulations, because ex-post facto prohibition only applied to fundamental liberty interests, of which the right to hold a driver’s license does not apply.
The dissenting justices argues that the case was justiciable because the five year revocation after which a restriction and interlocking device is mandatory were inevitable consequences for Petitioner, who would soon apply for relicensing. The justices argued that the Commissioner did usurp the boundaries of administrative rule making into the realm of broad sweeping legislative policy making.
“In the first two factors, we agree that regulations are generally consistent with a strong legislative policy of promoting public safety by reducing alcohol-related driving incidents. In application, however, we find that regulation impermissibly requires the Commissioner to act contrary to her statutory authority. As set forth above, the statute grants the Commissioner discretion to reissue a license after a revocation period expires and even to terminate a one-year revocation once the driver meets certain conditions ( see Vehicle and Traffic Law § 1196 [5]). In contrast, the Commissioner has enacted a “general policy” to refuse to reissue a license for an extended five-year period in all cases absent a showing “of unusual, extenuating and compelling circumstances” (15 NYCRR 136.5 [d]) Matter of Acedevo, 2015 NY Slip Op 06467, (N.Y. App. Div. 2015).
The dissent said that by creating and enforce a mandatory across the board ten years restriction, absent a showing of “unusual, extenuating and compelling circumstances” the Commissioner abdicated his statutory authority to assess each application and to evaluate based upon the facts for a hard and fast rule that is applied unilaterally.
Public policy favors laws which protect citizens from criminal conduct on our nations roads and highways, thus, if you have had a license revoked due to several alcohol or drug related offenses, you should contact a professional attorney that can answer your questions. Each case is unique, therefor in the event you are pulled over for DWI, call the Law Offices of Andrea L. Gamalski at (845) 901-2671 immediately for free legal advice and peace of mind. She will walk you through the procedure and ensure that you receive the best representation possible with the best available outcome.
Andrea L. Gamalski Attorneys at Law
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