Allen v. N.Y. State Dep't of Motor Vehicles & Barbara J. Fiala
| Decision Date | 21 May 2014 |
| Citation | 45 Misc.3d 475,991 N.Y.S.2d 701,2014 N.Y. Slip Op. 24166 |
| Parties | In The Matter of the Application of Phyllis J. ALLEN, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and Barbara J. Fiala, as New York State Commissioner of Motor Vehicles, Respondents. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Gerstenzang, O'Hern, Sills and Gerstenzang (Eric H. Sills, Esq., of Counsel) Albany, attorney for petitioner.
Eric T. Schneiderman, Attorney General, State of New York (Charles J. Quackenbush, Assistant Attorney General of Counsel), Albany, attorney for respondent.
The petitioner has been convicted of the following alcohol-related driving offenses:
a conviction for driving while ability impaired dated August 24, 1989 and two convictions for driving while intoxicated (“DWI”), dated November 10, 2009 and March 15, 2011 respectively. By order issued August 3, 2011, the petitioner received a one year license revocation arising out of the DWI conviction dated March 15, 2011.
In April 2012 the petitioner submitted an application for approval to obtain a new driver license. In a determination dated December 6, 2012, the New York State Department of Motor Vehicles advised the petitioner that her application was denied on grounds that she was a persistently dangerous driver. The petitioner appealed the determination, which was denied by DMV's Administrative Appeals Board on February 26, 2013. Both determinations rely heavily upon new regulations promulgated by DMV with regard to relicensing of individuals who have multiple alcohol or drug related driving convictions. Effective September 25, 2012 the respondent revised portions of Part 136 of its regulations ( see 15 NYCRR Part 136, hereinafter referred to as “Part 136”). The revisions impose significantly greater restrictions on the ability of persons convicted of multiple alcohol or drug related driving offenses to regain an operator's license after it has been revoked.
The petitioner commenced the above-captioned combined action/proceeding to annul the determination denying her application, and for a judgment declaring that portions of Part 136 are unconstitutional. Among the many arguments advanced by the petitioner, she maintains that the regulations conflict with the provisions of VTL §§ 510, 1193, and 1198 (). She asserts that they violate the Separation of Powers doctrine; and that the underlying enabling legislation is unconstitutional, as an overly broad delegation of legislative authority and, in the alternative, that the Commissioner exceeded her authority as delegated by the state legislature. The petitioner also alleges that the new regulations violate her right to due process; that they constitute an illegal Ex Post Facto law; that they are arbitrary and capricious; and that respondent's delay in processing petitioner's application was illegal and improper. The respondents maintain that the contested provisions of Part 136 do not conflict with the Vehicle and Traffic Law; that they were adopted pursuant to, and wholly within the respondents' delegated authority; and do not exceed the respondents' broad discretion. The respondents contend that their actions did not violate petitioner's constitutional rights; and that the delay in processing petitioner's application until December 6, 2012 was within respondents' discretion.
The determination dated December 6, 2012 of the Driver Improvement Examiner, which denied petitioner's application for a new operator's license, recites as follows:
“Pursuant to the authority in Sections 136.5(a)(3) and 136.5(b)(3)(i) of the regulations of the Commissioner of Motor Vehicles, your application for a New York State driver license/privilege is hereby DENIED because you are deemed a persistently dangerous driver.
“Section 136.5(a)(3) provides as follows:
Special rules for applicants with multiple alcohol-or drug-related convictions or incidents.
For the purposes of this section revocable offense' means the violation, incident or accident that results in the revocation of the person's drivers license and which is the basis of the application for relicensing. Upon reviewing an application for relicensing, the Commissioner shall review the applicant's entire driving record and evaluate any offense committed between the date of the revocable offense and the date of application as if it had been committed immediately prior to the date of the revocable offense. For purposes of this section, date of the revocable offense' means the date of the earliest revocable offense that resulted in a license revocation for which the revocation has not been terminated by the Commissioner's subsequent approval of an application for relicensing.
“Section 136.5(b)(3)(i) provides as follows:
Upon receipt of a person's application for relicensing, the Commissioner shall conduct a lifetime review of such person's driving record. If the record review shows that:
the person has three or four alcohol—or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense but no serious driving offenses within the 25 years preceding the date of the revocable offense and (ii) the person is currently revoked for an alcohol—or drug-related driving conviction or incident, then the Commissioner shall deny the application for at least five years, after which time the person may submit an application for relicensing. After such waiting period, the Commissioner may in his or her discretion approve such application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person's license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five year period. If such license with an A2 restriction is later revoked for a subsequent alcohol—or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.
“The following constitute grounds for such denial:
Violation Date
Incidents/Convictions/Accidents
10/16/2010
DWI
10/23/2009
DWI
05/25/2000
No seat belt
03/10/1990
Speeding 72/55
08/07/1989
Driving while ability impaired
03/02/1985
Failed to keep right
10/01/1999
Property damage accident
06/22/1999
Property damage accident
04/18/1992
Personal injury/property damage accident
11/15/1988
Personal injury/property damage accident
“Your driving history suggests that your failure to observe the rules and regulations governing the operation of a motor vehicle constitutes a serious lack of regard on your part for the safety and welfare of other users of the highway, and forms the basis of our decision to deny your application for a driver license.
“If you do not have any unusual, extenuating or compelling circumstances but wish to appeal this decision, you may file an appeal with the Appeals Board [ ].”
The petitioner submitted an appeal to the respondent on January 14, 2013. The appeal was decided on February 26, 2013. The appeals decision recites, in part, as follows:
“Appellant's argument that Section 136.5 of the Commissioner's Regulation is inapplicable to appellant is without merit. To conclude that the conviction or incident that formed the basis for appellant's revocation is not to be considered in reviewing appellant's driving record is contrary to fundamental rules of construction and to the statutory intent and purpose of the regulation.
“Under the Governor's direction, the Commissioner's Regulations were reassessed to address the inherent danger of relicensing drivers convicted of multiple alcohol and drug-related offenses. The Regulations were developed in an effort to address the problems caused by drivers with a history of alcohol and/or drug related offenses in order to protect all those who share the public highways of this State. The Regulations were implemented as soon as they were enacted on September 25, 2012.
“Reg. Section 136.5(b)(3) provides that upon receipt of a person's application for relicensing, the Commissioner shall conduct a lifetime review of such person's driving record. The Commissioner shall deny the application for at least five years if the review shows that (i) the person has three or four alcohol—or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense but no serious driving offenses within the 25 years preceding the date of the revocable offense, and (ii) the person is currently revoked for an alcohol—or drug-related driving conviction or incident.
“A revocable offense' is defined by Reg. Section 136.5(a)(3) as: a violation, incident or accident that results in the revocation of a person's driver's license and which is the basis of the application for relicensing. Upon reviewing an application for relicensing, the Commissioner shall review the applicant's entire driving record and evaluate any offense committed between the date of the revocable offense and the date of the application as if it had been committed immediately prior to the date of the revocable offense.
“A serious driving offense' is defined by Reg. section 136.5(a)(2) as: (i) a fatal accident; (ii) a driving-related Penal Law conviction; (...
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