IN RE: the Application of Shawn G. Granger (2025)

In this CPLR article 78 proceeding, petitioner Shawn Granger challenges a determination of respondents, the New York State Department of Motor Vehicles and its Commissioner Mark Schroeder (together, DMV), denying petitioner's application for re-licensure after his driver's license was revoked in 2009 for an impaired driving offense, following a history of multiple similar offenses.¹ Petitioner argues that DMV's determination should be reversed as arbitrary and capricious because his application satisfied the applicable regulatory requirements and demonstrated the existence of "unusual, extenuating, and compelling" circumstances justifying re-licensure (Petition, ¶¶ 10-11). Petitioner further contends that DMV's determination must also be annulled as arbitrary and capricious, and unconstitutional, because there are no guidelines or policies governing how such applications are to be evaluated; the Commissioner has never exercised discretion or made individualized findings in any re-licensure application by any individual; and DMV has allegedly never granted anyone with a similar impaired driving offense history re-licensure since the applicable regulations were promulgated (id. ¶¶ 10-11, 22-23, 27-30). The petition seeks, among other ancillary relief, reversal of the determination and another review of petitioner's re-licensure application "under a regime that meets constitutional requirements" (id. at unnumbered ¶ 56; see also id. ¶ 36).² DMV answered and raised objections in point of law, arguing that the determination denying petitioner's application is supported by a rational basis and that petitioner is not entitled to re-licensure or any other relief. Although petitioner has presented a compelling case for re-licensure in this Court's view, the Court is nevertheless constrained by the applicable standard of review to deny the petition and dismiss the proceeding.

The Applicable Regulations

An individual whose driver's license has been revoked may apply for re-licensure pursuant to 15 NYCRR part 136. In 2012, the Commissioner promulgated special rules for re-licensure applicants with multiple impaired driving offenses (see 15 NYCRR 136.5). Under this scheme, the Commissioner must conduct a "lifetime review" of the applicant's driving record (15 NYCRR 136.5 [b]). The rules in place at the time of petitioner's application stated that the Commissioner "shall deny" an application if the review shows that the applicant has had five impaired driving offenses, or three or four impaired driving offenses and one or more serious driving offenses, all within a 25-year look back period (former 15 NYCRR 136.5 [b] [1], [2] [eff. July 6, 2016 - Nov. 6, 2024]),³ which the regulations define as the period beginning 25 years before the date of the offense for which the person's license was revoked (see 15 NYCRR 136.5 [a] [3]). Impaired driving offenses include in- and out-of-state criminal convictions for driving under the influence of drugs or alcohol, as well as findings that a person refused to submit to a chemical test (see 15 NYCRR 136.5 [a] [1]). And "serious driving offenses" include, as relevant here, a conviction of two traffic violations each resulting in an assessment of 5 or more points on the individual's driver's license, or a conviction of any number of violations resulting in an assessment of 20 or more points (15 NYCRR 136.5 [a] [2]). Notwithstanding this "general policy" to deny re-licensure applications made by persons to whom these provisions apply, the Commissioner "shall not be foreclosed from consideration of unusual, extenuating and compelling circumstances" which "may form a valid basis to deviate from the general policy," and an application may be granted in an exercise of the Commissioner's discretion (15 NYCRR 136.5 [d]). If the Commissioner grants an application based on this hardship exception, the reasons for doing so must be set forth in writing, and the applicant's license is restored with certain restrictions (see id.).

Factual Background and Procedural History

Petitioner's driver's license was revoked in 2010 after he was convicted of driving under the influence based on an incident that occurred on May 15, 2009. He applied for re-licensure in 2023. In January 2024, petitioner's application was denied by the DMV's Driver Improvement Unit (DIU) (see Return ["R."] 201-203). Pursuant to the Commissioner's regulations, the DIU performed a lifetime review of petitioner's record which revealed that petitioner had four impaired driving offenses in the 25-year look back period stemming from incidents that occurred in 1991, 1995, 1996, and 2009. In addition, the DIU found that petitioner committed a serious driving offense because he had accumulated more than 20 points on his license within the 25-year look back period. Thus, the examiner concluded that denial of the application was required pursuant to former 15 NYCRR 136.5 (b) (2).

Pursuant to 15 NYCRR 136.5 (d), the denial letter advised petitioner that he could submit a request for reconsideration of DIU's decision within 60 days if he believed he had "unusual, extenuating, and compelling circumstances" that would justify approval of his application for licensure, and advised him to use Form VS-500 for "relicensing reconsideration after denial" (R.202-203). The form provides a list of factors that "may be considered as 'unusual, extenuating[,] and compelling,' " including whether (1) the applicant or a member of their immediate family has a disability, illness, or other condition that requires hospital and / or doctor visits; (2) transportation may be required for school and / or employment; (3) public transportation is available; (4) the applicant has engaged in post-offense remedial education; and (5) the applicant has achieved long-term recovery for alcohol and / or substance abuse (R.204-206; see also R.56). The form also informs applicants that "credible, verifiable documentation" from non-relatives must be submitted to support all claimed factors in support of the application, and lists the following as examples: letters or statements from "your physician, employer, religious official, government official, professors, counselors, public transportation schedules, routes, maps, receipts, medical bill[s], [and] appointment schedules" (R.55). The form also noted that an application for re-licensing may still not be approved even if unusual, extenuating, and compelling circumstances exist.

Petitioner thereafter sought such reconsideration. Petitioner asserted that, since the time his license was revoked, he has committed himself to sobriety and had been sober for over 15 years at the time of his application for reconsideration. He also provided other information about his rehabilitation. He graduated from college in 2023 and, after working as peer advocate, became a full-time alcohol and substance abuse counselor with Samaritan Addiction Services. At the time of the application, petitioner was enrolled in a further 14-month training program related to that line of work. Petitioner stated that he needed a driver's license to travel to work and the training program, explaining that public transportation was "limited/not available" in Watertown, where he lives (R.56). He further noted that he needs to be able to drive to medical appointments because he has had three knee surgeries and his medical provider is located 30 miles from his residence. In addition, petitioner stated that his 75-year-old mother, who recently had triple bypass surgery, needs him to drive her to her medical appointments as well.

Petitioner supported his application with ample documentation (R.60-198). Regarding his educational endeavors, petitioner included a copy of his Associate's Degree in business management, with honors, and his bachelor's degree in sociology and other proof of academic achievement at the State University of New York at Potsdam, where he received several honors and awards throughout his years of study. Petitioner also submitted numerous certificates for various programs and trainings in substance abuse counseling, including training regarding the "Clinical Screening and Assessment of the Impaired Driving Offender" (R.129), as well as a certificate from the New York State Office of Addiction Services and Supports (OASAS) recognizing petitioner as a Credentialed Alcoholism and Substance Abuse Counselor. He also submitted numerous letters of support from members of his community, including his employer, coworkers, medical providers, clergy members, the New York State Assembly Member representing petitioner's assembly district, college professors, and attorneys. A letter of support from his supervisor and OASAS Program Coordinator at Samaritan stated that petitioner's work schedule is Monday through Friday from 8 a.m. to 5 p.m., but the public transportation to access the work site arrives after 8 a.m. and that, "[d]ue to taking the bus," petitioner is not able to "attend work on time" and "is not able to get his full 40 hours in each week" (R.67). A letter from his primary care physician indicated that petitioner has had multiple surgeries on his left knee which "still requires intervention to this day" as well as "additional orthopedic[ ] concerns, which "require[ ] him to travel to appointments on a regular basis," and that public transportation is "extremely limited" and often "unobtainable" in petitioner's area (R.81). Additional medical records pertained to his and his mother's surgeries, and petitioner provided a copy of the Watertown bus schedule and Google Maps printouts to support his claim that public transportation is limited in his area. The printouts show that petitioner's residence is 2.5 miles from his place of employment, 16.8 miles from his mother's house, and 71.6 miles from the location of his training program.

Petitioner's request for reconsideration was evaluated using DMV Form DS-322 (see R.27-30). The initial examiner used the form's checklist to find that petitioner's submissions included evidence of all of the following: (1) medical conditions for himself and a family member that required transportation; (2) employment that required transportation; (3) limited access to public transportation; (4) substantial post-offense remedial education; and (5) long-term alcohol rehabilitation. The initial examiner also found that petitioner did not drive while his license was revoked. The examiner further noted that petitioner had provided supporting documentation of each factor, which the examiner described in detail on the form. A DIU supervisor thus recommended that the application be granted. The supervisor noted that petitioner recently graduated college and works as an alcohol and substance abuse counselor who is enrolled in another training program located in Syracuse, and found that petitioner "needs [a] license to get to employment [and] doctor appointments for himself and his mother;" public transportation is "limited" in his area; and petitioner provided character references and other "supporting documentation from doctors, employment, [and] schooling" (R.28). However, the head examiner disagreed and recommended denying the application for reconsideration. The head examiner focused on petitioner's history of offenses and stated there was a lack of "credible, verifiable documentation" to support petitioner's claims—despite acknowledging the "numerous" letters of support submitted from "counselors, colleagues[, and] professors" on petitioner's behalf (R.29). The head examiner further acknowledged that petitioner demonstrated that he and his mother had serious medical conditions, but stated that petitioner's application lacked proof of "future ap[pointments]" and that public transportation was available, even if not ideal (id.). Finally, contrary to the finding of the initial DIU examiner, the head examiner found that petitioner's record contained evidence that he drove while his license was revoked, referencing the fact that petitioner was issued traffic tickets in 2017 which were ultimately dismissed (see R.47).

The DIU thus ultimately denied petitioner's request for reconsideration in June 2024 on the ground that he "failed to demonstrate by sufficient verifiable, corroborating documentation that unusual, extenuating, and compelling circumstances warrant his re-licensure" (R.25). The DIU stated that, "despite the existence of some circumstances" supporting his application, petitioner "failed to meet the requirement of all three criteria of unusual, extenuating, and compelling" (id. [emphasis in original]). In addition, the DIU noted that granting petitioner's application "would be inconsistent with [DMV's] mission of promoting highway safety" (id.). Petitioner appealed the DIU's denial of his request for reconsideration to DMV's Administrative Appeals Board, and the Board affirmed (see R.3-4).

Applicable Standard of Review and Analysis

Generally, "once an offender's license has been revoked—permanently or otherwise—reissuance of a new license is subject to the discretion of the Commissioner" (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 213 [2017], citing Vehicle and Traffic Law §§ 510 [6] [a], 1193 [2] [c]; see Matter of Curry v Commissioner of NY State Dept. of Motor Vehs., 172 AD3d 1588, 1589 [3d Dept 2019]). Thus, this Court's review of the Commissioner's determination denying an application for re-licensure "is limited to whether [the] determination was arbitrary and capricious, irrational, [or] affected by an error of law or an abuse of discretion" (Curry, 172 AD3d at 1589 [internal quotation marks omitted]; see Matter of Nicholson v Appeals Bd. of Admin. Adjudication Bur., 135 AD3d 1224, 1225 [3d Dept 2016]; see also CPLR 7803 [3]; see generally Matter of Save America's Clocks, Inc. v City of New York, 33 NY3d 198, 207 [2019]; Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]).

Initially, in the Court's view, petitioner's application presented substantial documentation establishing his long-standing sobriety and exceptionally successful rehabilitation, as well as what appears to the Court to be a compelling medical, educational, and vocational necessity for a driver's license. Indeed, petitioner provided supporting documentation of each type listed as examples in the initial denial notice sent to him, and it is not clear to this Court what more proof he could have provided in support of his application.

However, given the breadth of the Commissioner's discretion with respect to the licensing and re-licensing of drivers, as well as the significant public safety considerations underpinning that broad discretion (see Acevedo, 29 NY3d at 213-214, 220-223, and 226), the Commissioner was entitled to find that those circumstances were insufficiently documented and outweighed by petitioner's longer prior history of impaired, dangerous, and unlicensed driving (see Metzger Affirm, ¶ 11 [noting the high bar for re-licensure in such cases is "necessary to prevent recidivist alcohol and drug-impaired drivers from posing grave risk to others on public roads and highways"]). The Court must thus uphold DMV's determination inasmuch it cannot be said that it was wholly irrational (see Nicholson, 135 AD3d at 1225 [denial of license not irrational or an abuse of discretion in light of applicant's "dangerous driving history"]; see also Matter of Gurnsey v Sampson, 151 AD3d 1928, 1930 [4th Dept 2017]). And the Court "cannot substitute its judgment for that of respondent[s]" (Matter of Lynch v NYS Justice Ctr. for the Protection of People with Special Needs, 190 AD3d 1063, 1064 [3d Dept 2021], lv denied 37 NY3d 903 [2021], cert denied 142 S Ct 800 [2022]), "even if the [C]ourt concludes that it would have reached a different result" (Matter of Peckham, 12 NY3d at 431; see Matter of Nortz v New York State Dept. of Motor Vehs. Appeals Bd., 186 AD3d 977, 978 [4th Dept 2020]). In addition, the applicable regulatory language states only that the Commissioner is "not . . . foreclosed" from considering an applicant's unusual, extenuating, and compelling circumstances; but the Commissioner retains discretion to deny re-licensure even where such circumstances exist (15 NYCRR 136.5 [d]; see Nortz, 186 AD3d at 978 [upholding denial of re-licensure application even assuming the petitioner established that "she and her child were disabled and needed to travel to various medical providers, she could not access public transportation and she had complied with her alcohol treatment program"]; see also Acevedo, 29 NY3d at 220; id. at 222, citing VTL § 1193 [2] [b] [12] [b]).

Petitioner's contention that DMV's denial of his application for re-licensure is nevertheless arbitrary, and denied him due process, because it was subject to a "predetermined outcome" (Petition, ¶ 33) is unpersuasive. Specifically, petitioner asserts that there are no guidelines or policies governing how requests for an exception based on unusual, extenuating, and compelling circumstances are to be evaluated and, further, that the Commissioner has a "longstanding mandate" to deny all such requests made by individuals with driving records like petitioner's without considering the specific facts of each case (id. ¶ 27). Part of petitioner's argument appears at first glance to have some force, given the vagueness of the general standard set forth under 15 NYCRR 136.5 (d); indeed, DMV could not explain at oral argument exactly what the words "unusual, extenuating, and compelling" mean in this context or how the terms differ from each other. However, the only appellate court to have considered the issue has held that the standard is not unconstitutionally vague (see Gurnsey, 151 AD3d at 1930).⁴

In addition, the meaning of this broad standard is fleshed out in more detail by DMV procedures and guidelines as set forth in various forms relating to re-licensing reconsideration applications. In response to the petition, a senior DMV attorney explained that the DIU considered petitioner's application using the "well-established and uniform . . . processes detailed in DMV Form DS-322" used in such cases (Metzger Affirm, ¶ 8; see id. ¶¶ 27, 40).⁵ The record here contains the Form DS-322 used by DIU to review petitioner's application, which includes a checklist of the numerous factors to be considered, as well as notes by various DIU personnel evaluating whether petitioner had sufficiently demonstrated them, as discussed in detail above (R.27-30). Moreover, the reconsideration application itself—which petitioner had filled out to initiate the re-licensing reconsideration process—advises applicants of the same list of factors to be considered in reviewing such requests to determine whether an applicant has met the unusual, extenuating, and compelling standard (see R.55-56). Here, the Commissioner denied petitioner's application after an individualized consideration of his request under the applicable regulations and internal guidelines, with reference to a specific list of standards of which petitioner had notice and following an evaluation of his documentation and the factors relevant to determining whether petitioner met the criteria for a hardship exception (see Acevedo, 29 NY3d at 220 [rejecting the petitioners' argument that Commissioner "contravened [the] statutory mandate to exercise discretion on a case-by-case basis" and noting that the rules and regulations regarding re-licensure "provide notice to the public concerning the Commissioner's general practices with regard to relicensing"]). Contrary to petitioner's contention, the fact that one DIU official recommended granting his application does not render the Commissioner's ultimate determination to deny it arbitrary and capricious. Indeed, an inherent and defining characteristic of the exercise of discretion with respect to a particular set of facts and circumstances is that individuals may reasonably disagree about the best way to exercise it.⁶

Petitioner also argues that it was arbitrary and capricious for the Commissioner to rely on dismissed traffic tickets issued to him in 2017 as a factor weighing against re-licensure. However, the Commissioner did not rely on the dismissed tickets as evidence that petitioner was guilty of any specific charged violation. The tickets were referenced only as evidence that petitioner drove during the period that his license was revoked, which is a factor to be taken into account by the DIU guidelines as noted on Form DS-322 (see R.27). It is rational to infer that a person who received a traffic ticket was driving a vehicle, and petitioner did not offer an alternative explanation.

To the extent that petitioner argues that the determination below was erroneous as a matter of law because the administrative revocation of his driver's license for failure to submit to a chemical test following the May 15, 2009 offense was reversed (see Petition, Exh G), this argument cannot be considered because it was not raised in the proceedings before the agency (see Peckham, 12 NY3d at 430). Moreover, in his request for reconsideration, petitioner acknowledged that he committed the impaired driving offenses with which he was charged and did not challenge the validity of any of his underlying convictions (see R.53; see also R.40). Finally, petitioner's constitutional challenges based on the separation of powers doctrine and the Ex Post Facto clause are similarly unpreserved and, in any event, have already been considered and rejected by the Court of Appeals (see Acevedo, 29 NY3d at 221-226, 228-229).

Petitioner has presented DMV a strong case for re-licensure. Petitioner has documented and demonstrated a serious and commendable commitment to his sobriety and rehabilitation since his last conviction in 2009. Indeed, a state agency tasked with the provision and oversight of addiction services in New York has vetted him and deemed him qualified to counsel others about overcoming substance abuse, which he has been successfully doing according to his employer. Petitioner also demonstrated his own employment related and medical need for a driver's license, along with his need to assist his mother in attending her appointments for her serious medical condition. Petitioner also presented documentary evidence of the limited public transportation options available to him in the North Country. And, contrary to respondents' suggestion, as anyone who has ever used Uber or Lyft knows, it is not hard to imagine that most individuals are not able to afford to take a private car service back and forth to work every day or even to use such services a few times a month to travel to locations of any significant distance, let alone 20, 30, or 70 miles away. At oral argument, petitioner raised some compelling questions: does he have to actually lose his job, or do he and his mother have to suffer medical complications, or does some other drastic and devastating thing have to happen before re-licensure is justified? The Court was itself wondering the same and was troubled by DMV's assertions that the lack of a license was merely an "inconvenience" for petitioner, and that applicants are not entitled to a hardship exception until after they can prove that they have, for example, missed medical appointments—which could easily result in them losing their medical provider entirely—or they have sustained some other serious (and possibly irrevocable) adverse consequences. Applicants should not be penalized for being dedicated or resourceful enough to find extraordinary ways to keep their medical appointments or school schedules. While the Court is cognizant of the serious public safety concerns that are implicated in any re-licensure determination, waiting until a point of no return for re-licensure also carries its own risks and, as several of petitioner's supporters state in their letters, could potentially undermine all of the progress and stability and value to society that someone like petitioner has admirably gained over the past 15 years. However, a de novo evaluation of the merits of petitioner's application is beyond the scope of this Court's review and, as such, the Court is constrained to defer to the agency's determination. The Court encourages petitioner to try and further address any of the purported deficiencies in his application identified by DMV and to reapply for re-licensure—as respondents represent that he may do.

Accordingly, it is hereby

ORDERED and ADJUDGED that the petition is DENIED in its entirety, and the proceeding is DISMISSED.

This shall constitute the decision, order, and judgment of the Court. The original decision, order, and judgment is being transmitted to the respondent's attorney. A copy is being sent to petitioner, and all other original papers on the petition will be delivered to the County Clerk. The signing of this decision, order, and judgment, and delivery to the parties, shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting entry, filing, and service.

SO ORDERED AND ADJUDGED.

Dated: June 27, 2025

Albany, New York

Zainab A. Chaudhry

Acting Supreme Court Justice

Papers Considered:

1. Notice of Petition and Petition, with Exhibits A-G, filed October 22, 2024;

2. Answer with Exhibit A; Affirmation of Kathleen A. Metzger, Esq., with Exhibit 1; and Memorandum of Law in Support of Answer, filed December 23, 2024; and

3. Petitioner's Reply, with Exhibits A-F, filed December 30, 2024;

4. Petitioner's Addendum to Petition with Exhibit A, filed January 30, 2025;

5. Respondent's Supplemental Letter Following Oral Argument, filed April 10, 2025; and

6. Petitioner's Supplemental Letter Following Oral Argument, filed April 18, 2025.

FOOTNOTES

1.   This decision uses the term "impaired driving offense" to refer to any "[a]lcohol- or drug-related driving conviction or incident," as defined in the Commissioner's regulations (15 NYCRR 136.5 [a] [1]).

2.   To the extent petitioner asks for relief in the nature of mandamus to reinstate his driving privileges in an "addendum" to the petition and in his additional submission after oral argument, the Court cannot treat these papers as amendments to the petition because petitioner did not seek leave of the Court to amend his pleading (see Matter of Gomez v Fischer, 101 AD3d 1195, 1196 [3d Dept 2012], citing CPLR 3025 [b] and CPLR 7804 [d]). In any event, mandamus does not lie here because, as explained further below, the determination to grant re-licensure involves the exercise of discretion (see Matter of Allen v New York State Dept. of Motor Vehs., 45 Misc 3d 475, 505-506 [Sup Ct, Albany County 2014], affd sub nom Matter of Joy v New York State Dept. of Motor Vehs., 133 AD3d 1167 [3d Dept 2015]; see also Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093 [2018]).

3.   The rules were amended in November 2024. Now, automatic denial is triggered by only four impaired driving offenses or, alternatively, three impaired driving offenses and a serious driving offense all within the 25-year look back period (see 15 NYCRR 136.5 [b] [1], [2] [eff. Nov. 6, 2024]).

4.   Because there is no precedent from the Third Department on this question, the Court is bound by the holding of the Fourth Department (see Oswald v Oswald, 107 AD3d 45, 47 [3d Dept 2013], citing Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]).

5.   The Court does not find Exhibit 1 to the Metzger Affirmation, entitled "Procedure for Requests for Relicensing Consideration for Multiple Alcohol Convictions Application" to be probative on this issue. DMV has not explained what exactly this document is and, further, it appears to be only a draft. Thus, the Court has not relied upon this document in reaching its conclusion.

6.   At oral argument in this matter, the Court asked DMV to provide the Court with information regarding whether any hardship exceptions pursuant to 15 NYCRR 136.5 (d) had ever been granted. Rather than providing the affirmation of someone with personal knowledge containing specific information as to the number of any such exceptions granted since the promulgation of this regulation, the types of circumstances found in those cases to be unusual, extenuating, and compelling, the types of supporting documentation provided and found to be sufficient, or any other relevant statistics or information, DMV summarily represented in a brief letter submission only that it "has confirmed that there have been previously approved applications" (DMV Ltr, filed April 10, 2025). Although petitioner is not correct that DMV was required to proffer the specific names of any such re-licensees, the cursory assertion is neither responsive nor probative. One can only conclude from such a statement that it has rarely occurred—which is understandable in light of the serious public safety concerns posed by drivers who have been convicted multiple times for impaired driving offenses. Regardless of whether or how many other individuals were granted re-licensure under the hardship exception at issue here, however, the regulations empower the Commissioner to decline to exercise discretion even where such circumstances exist, as noted above.

Zainab A. Chaudhry, J.