Opinion
No. 000260–2015.
08-14-2015
In the Matter of the Application of Jonathan ROTHSCHILD, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and Barbara J. Fiala, as New York State Commissioner of Motor Vehicles, Respondents.
Daniel Bertolino, P.C., Upper Nyack, Attorney for Petitioner. John M. Healey, Esq., Office of the Attorney General, Eric T. Schneiderman, White Plains, Attorney for Respondent.
Daniel Bertolino, P.C., Upper Nyack, Attorney for Petitioner.
John M. Healey, Esq., Office of the Attorney General, Eric T. Schneiderman, White Plains, Attorney for Respondent.
VICTOR J. ALFIERI JR., J.
Petitioner, Jonathan Rothschild, commenced this hybrid Article 78 proceeding and declaratory judgment action, seeking a judgment "annulling and setting aside a certain decision of the Respondent State of New York Department of Motor Vehicles ..." (See, Notice of Petition, p. 1). The Court has considered the following papers:
1.Petitioner's Notice of Petition, Verified Petition and supporting documents; and
2.Verified Answer and supporting documents.
Petitioner, a repeat DWI offender, commenced this proceeding to challenge the denial of the application for relicensure by respondent Department of Motor Vehicles (DMV). In its letter of July 28, 2014, denying petitioner's application, respondent DMV advised petitioner that he was deemed a persistently dangerous driver whose driving record suggests that his "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." Petitioner's appeal of the decision was rejected as the Appeals Board was not authorized to accept or review any information that was not submitted to and considered by the Drive Improvement Bureau.
In support of this instant application, petitioner argues respondent DMV improperly and intentionally delayed processing his application and improperly applied the new DMV regulations, effective September 25, 2012 retroactively. Pursuant to the Septemer 25, 2012 revision of the regulations of the respondent DMV, 15 NYCRR § 136.5 [b] provides that:
"Upon receipt of a person's application for re-licensing the Commissioner shall conduct a lifetime review of such person's driving record. If the record review shows that:
(1) the person has five or more alcohol-or drug-related driving convictions or incidents in any combination within his or her lifetime, then the Commissioner shall deny the application.
(2) 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 and, in addition, has one or more serious driving offenses within the 25 years preceding the date of the revocable offense, then the Commissioner shall deny the application.
Prior to the adoption of the revised regulations, when a person applied for relicensing after revocation, the applicant's driving record for the ten years prior to the date of the application was reviewed by the Driver Improvement Unit (DIU). A driver with two or more alcohol related incidents in the ten year look back period would be assessed an extended waiting period of six months for each incident. In February 2011, Part 136 of 15 NYCRR was amended in an attempt to strengthen the DMV's ability to deny relicensing to problem drivers. Concluding that the issue of problem drivers was still not resolved, as an emergency measure, on September 25, 2012, the respondent DMV filed a Notice of Emergency Adoption and Proposed Rule Making regarding 15 NYCRR Parts 3, 134 and 136. All pending applications were thereafter reviewed based on the criteria set forth in amended Part 136. Under the new (emergency) regulations, the DIU is required to conduct a lifetime review of the applicant's driving record (15 NYCRR § 136.5 [b] ).
Notwithstanding petitioner's assertions to the contrary, respondent DMV has not, inter alia, acted arbitrarily and capriciously in denying his relicensure application. The new regulations, under which petitioner's application was decided, are neither unconstitutional nor in conflict with Vehicle and Traffic Law § 1193[2][b][12] or violative of the Ex Post Facto Clause of the United States Constitution (Article 1 § 10, cl 1 ). Brown v. Fiala, 44 Misc.3d 182 (Nassau Cty, 2014)
Pursuant to Vehicle and Traffic Law § 501[1], § 510[6][a] and § 1193 [2 ][b][12][b], [3] and § 1193[2][c][1], the Commissioner of Motor Vehicles is authorized to invoke his/her discretion to establish criteria and methodology for relicensing after revocation of a driver's license. The Commissioner has been granted broad, explicit and exclusive administrative authority over the issuance of driver licenses and the authority to adopt the rules and regulations to carry out respondent DMV's functions (see Boreali v. Axelrod, 71 N.Y.2d 1, [1987] ). Part 136 of the regulations does not restrict the Commissioner's authority to review each application on a case-by-case basis and to consider unusual extenuating and compelling circumstances (15 NYCRR § 136.5 [b] ). As pointed out in In re Acevedo v. New York State Dept. of Motor Vehicles, 2014 WL 771233, 2014 N.Y. Slip Op. 30422(U) at 18 [Sup.Ct., Albany Co.2014], Part 136 falls squarely within the policy and purposes of the provisions of the Vehicle and Traffic Law to protect public safety and welfare and carries out the Commissioner's legislatively delegated authority.
It is well settled that the ability to drive and possess a driver's license is a privilege, subject to reasonable regulation. However, "a driver's license is a substantial property interest that may not be deprived without due process of law." Pringle v. Wolfe, 88 N.Y.2d 426 at 431 (1996). In the case at bar for the reasons stated herein, the petitioner's interests were protected. The petitioner was an applicant and as such, his application was subject to administrative review. The denial was based upon his multitude of convictions and in conformance with statutory provisions. The State may properly condition the granting of an application on reasonable criterion for the protection of the public, as here, from the habitually errant drivers, clearly a proper state interest. The statutory scheme pursuant to 15 NYCRR § 136.5 et. seq. is entitled to a presumption of constitutionality which may only be rebutted by a showing of unconstitutionality beyond a reasonable doubt (New York City v. State of New York, 76 N.Y.2d 479 at 485 [1990] ). So long as an applicant's due process rights are honored, the State can condition receipt of one's driving privilege, or absolutely revoke it (People v. Walters, 30 Misc.3d 737 [NY City Ct.2010] ; People v.. Sukram, 142 Misc.2d 957, [Nassau County Dist.Ct., 1st Dist.1989] ).
The suspension or revocation of one's driving privilege is a civil sanction (Brady v. Department of Motor Vehs., 278 A.D.2d 233 [2d Dept.2000], affirmed 98 N.Y.2d 625, [2002] ) to both punish the errant motorist and to protect the public (Matter of Barnes v. Tofany, 27 N.Y.2d 74, 78 [1980] [citations and quotation marks omitted] ). Once revoked, a driver's license may be restored only at the direction of the Commissioner of Motor Vehicles (Vehicle and Traffic Law § 510[5] ); See also, People v. Giacopelli, 171 Misc.2d 844 (JusCt Clarkstown, March 7, 1997)
The court's review of a discretionary administrative action, such as the issuance of a license, is limited to finding whether there was a rational basis for the administrative action (Matter of Sullivan County Harness Racing Assn. v. Glasser, 30 N.Y.2d 269, 278 [1972] ). Here the issue for consideration is whether the challenged determination, in this case, the denial of petitioner's relicensure application, was arbitrary and capricious or an abuse of discretion (Matter of Arrocha v. Board of Educ. Of City of NY, 93 N.Y.2d 361, 363, [1999] ). The court may not substitute its judgment for that of the administrative body unless the decision under review is
arbitrary and capricious and constitutes an abuse of discretion (Matter of Boatman v. New York State Dept. of Educ., 72 AD3d 1467, 1468 [3d Dept.2010] ). An action is arbitrary if it is without sound basis in reason and is taken without regard to the facts (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 230, 231 [1974] ). Once a rational basis for the administrative determination is shown, the judicial review function is complete and the agency's determination must be upheld even if the court may have reached a contrary result (Matter of Sullivan County Harness Racing Ass'n v. Glasser, supra at p. 276, 332 N.Y.S .2d 622, 283 N.E.2d 603 ).
Petitioner has failed to establish that the respondent DMV's decision to deny relicensure was not made in accordance with lawful procedure; was effected by an error of law; or was arbitrary/capricious or an abuse of discretion. Where, as here, an agency's determination is rationally based, it will be upheld by the court which will defer to an agency's interpretation of its own regulations which is not manifestly irrational or unreasonable (Marzec v. DeBuono, 95 N.Y.2d 262, 266 [2000] ).
Petitioner's application was denied based on the respondent DMV's finding that he failed to observe the rules and regulations of the road, resulting in a serious lack of regard for the safety and welfare of the public. Despite petitioner's assertions to the contrary, nothing within the Vehicle and Traffic Law prohibits respondent DMV from imposing additional requirements upon an applicant seeking to regain his license after multiple alcohol or drug related convictions, provided they have a rational basis.
The court rejects petitioner's contention that the denial of his application for relicensure pursuant to revised 15 NYCRR §§ 136.5 [a][3] and 136.5[b][3] [i], instead of pursuant to the regulation in effect at the time of petitioner's application in April 2012, was an impermissible retroactive application of said regulations and constitutes an impermissible ex post facto penalty. The Ex Post Facto Clause of Article 1, § 10 cl. 1of the United States Constitution prohibits states from enacting laws that retroactively alter the definition of a crime or increases the punishment for criminal acts (People v. Parilla, 109 AD3d 20 [1st Dept.2013], lv. to appeal denied 21 NY3d 865, 2013 WL 4792074 [2013] ). A statute will be considered an ex post facto law if it punishes as a crime an act previously committed, which was innocent when done, makes more burdensome the punishment for a crime, after its commission, or deprives one charged with crime of any defense available according to law at the time when the act was committed (People v. Foster, 87 AD3d 299, 306, 927 N.Y.S.2d 92 [2d Dept.2011] [citations and quotation marks omitted] ). The constitutional prohibition against ex post facto laws, however, applies only to penal statutes which disadvantage the offender affected by such laws (Kellogg v. Travis, 100 N.Y.2d 407, 410 [2003] [citations omitted] ) and not to civil remedies which seek to protect the public as here (People v. Parilla, supra at p. 23, 970 N.Y.S.2d 497 ).
The revocation provisions of the amendments to 15 NYCRR Part 136 are not, in this Court's view, subject to said prohibition which applies only to statutes that are punitive in nature as opposed to civil penalties (Matter of State of New York v. Nelson, 89 AD3d 441 [1st Dept.2011] ). It has been held that the Ex Post Facto Doctrine does not apply to administrative regulations (Matter of Robinson v. Bennett, 300 A.D.2d 715, 716 [3d Dept.2002] ). A statute, or regulation, which is enacted for non-punitive purpose, and is not so punitive in effect as to negate the non-punitive intent, may be retroactively applied without violating the Ex Post Facto Clause (People v. Foster, supra at p. 306, 927 N.Y.S.2d 92 ).
It is well established that laws or regulations are not retroactive where they apply to future transactions merely because they will require consideration of antecedent events (Miller v. DeBuono, 90 N.Y.2d 783, 790 [1977] ). The regulations at issue do not criminalize conduct that was innocent at the time it was committed, or aggravate a crime beyond its level when committed. Rather, the regulations are part of an effort to strengthen the Department of Motor Vehicles' ability to deny relicensing to problem drivers for the safety of the public.
Inasmuch as revised 15 NYCRR § 136.5 is sufficiently precise so as to put drivers on notice that their application for relicensing may be denied based on three alcohol related offenses, the regulations at issue are neither unconstitutional nor violative of due process (Hauptman v. New York State Dept. of Motor Vehicles, 158 A.D.2d 600, 551 N.Y.S.2d 572 [2d Dept.1990] ). There is no entitlement to a driver's license. Moreover, respondent DMV's decision to hold petitioner's application, and those of other problem drivers, until the enactment of the new regulations, does not constitute a violation of the right to due process. The time to contest the timeliness of the determination was by writ of mandamus to compel, seeking an order requiring an agency to render a decision (Matter of Hamptons Hosp. & Med. Ctr. Inc. v. Moore, 52 N.Y.2d 88 [1981] ; Matter of Funes v. New York State Dept. of Motor Vehicles, 2013 N.Y. Slip Op. 31082[U], 2013 WL 2282849 [N.Y.Sup.Ct., May 15, 2013] ), which petitioner did not do. As stated in Gaebel v. New York State Dept. of Motor Vehicles, 43 Misc.3d 185 [Sup.Ct., Sullivan County 2013], "any due process claim is now moot ... the sought after determination has been rendered, and the issue of prompt administrative determination has been rendered academic by the adverse determination."
With deference to the special expertise of respondent DMV, and the discretionary authority granted to the Commissioner of Motor Vehicles by statute to refuse to reissue a license after a mandatory minimum period of revocation (Vehicle and Traffic Law § 1193[2][c] ; § 1193[2][b][12] ; and § 510[6] ), it cannot be said that respondent DMV exceeded its authority in issuing amendments to 15 NYCRR Part 136. The promulgation of the regulations at issue is within the broad grant of discretion afforded to the Commissioner by statute. The retroactive application of the revised regulations to petitioner's application for relicensure did not violate the Ex Post Facto Clause of Article 1, § 10 cl. 1 of the Constitution.
As previously stated, the Legislature has conferred broad discretionary power over the reissuance of licenses which have been revoked by reason of alcohol or drug related revocations or test refusals (Vehicle and Traffic Law §§ 1193[2][b][12][b] and [3 ] and § 1193[2][c] ). The decision to restore a license rests within the discretion of the Commissioner of Motor Vehicles.
Based on the foregoing, it is hereby
ORDERED that petitioner's request, inter alia, to declare amended 15 NYCRR Part 136 illegal, violative of the Ex Post Facto Clause of the United States Constitution, and to annul the denial of his application for relicensure by respondent DMV as arbitrary and capricious is denied; and it is further
ORDERED that the hybrid proceeding is dismissed; and it is further
ORDERED that petitioner shall serve a copy of this decision on all defendants within twenty (20) days from the date of this Order.