IN RE: the Application of Steven G. BROWN

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IN RE: the Application of Steven G. BROWN, Petitioner, for a Judgment Under Article 78 and Section 3001 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.

No. 14405–13.

Decided: March 28, 2014

Application by petitioner in this hybrid Article 78 proceeding and declaratory judgment action, to, inter alia, annul the determination of respondent Department of Motor Vehicles (DMV) denying his application for relicensure and to declare 15 NYCRR Part 136, effective September 25, 2012, inter alia, unconstitutional, unlawful and ultra vires is denied.

It is hereby declared that amended 15 NYCRR Part 136 at issue herein, as applied to petitioner, is not unconstitutional, illegal or violative of due process. The decision by respondent DMV denying petitioner's application for relicensure based on the amended regulation was rationally based and neither arbitrary nor capricious.

The issues raised herein having been fully argued by the parties, the proceeding/action is dismissed.

Petitioner, a self described “repeat DWI offender,” commenced this proceeding to challenge the denial of his application for relicensure by respondent DMV on February 27, 2013 (Exhibit “D” of Petition) and the constitutionality of amended 15 NYCRR Part 136, promulgated by respondent DMV, effective September 25, 2002.

In its letter of February 27, 2013, denying petitioner's application, respondent DMV advised the 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 ․ for the safety and welfare of other users of the highway.”

Petitioner's appeal of the decision was denied by the Administrative Appeals Board of respondent DMV on July 30, 2013 which found that there was a rational basis for the decision given petitioner's driving record, including three alcohol or drug related incidents or convictions and revocation of his license for an alcohol or drug related incident or conviction (Exhibit “F”: Petition). His arguments on appeal were that:

1) The enactment of the new regulations is patently unfair, as appellant pled guilt to violations of VTL Section 1192(1) and Section 1192(3) while being fully aware of the consequences. At the time of those pleas, the new regulations did not exist and appellant was not on notice that such pleas would affect his ability to ever receive a driver's license in the future. With the enactment of the new regulations, the DMV has assessed additional penalties. Had the regulations existed at the time of the appellant's pleas, he would not have pled guilty to any violation of VTL Section 1192.

2) The chemical test refusal which lead to appellant's inability to obtain a driver's license was prosecuted in a DMV hearing office, where the standard of proof and rules of evidence are a far cry from a criminal court.

3) It has been 24 years since appellant's first alcohol-related conviction.

4) Appellant is a single father of three children and needs a license in order to earn a living. He cannot afford a taxi service and no mass transportation exists that will transport him from job site to job site. Appellant is also unable to meet the transportation requirements of his children.

In support of the instant application, petitioner argues that although his application1 for relicensure should have been processed under the laws and regulations that were in effect on the date of his latest DWI related conviction, respondent DMV improperly and intentionally delayed processing his application, and improperly applied the new DMV regulations, effective September 25, 2012, retroactively.

Pursuant to the September 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 relicensing, 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] ).

If the applicant has certain alcohol-related convictions he will be subject to sanctions. If the applicant has five or more alcohol-related convictions or incidents on his driving record, relicensing will be permanently denied. (15 NYCRR § 136.5[b][1] ). If the applicant has three or four alcohol or related conditions within the past 25 years, and has a serious driving offense, he can be permanently denied a license. In the case of an applicant who has three or four alcohol related convictions in the past 25 years (15 NYCRR § 136.5[b] [2] ), without a serious driving offense, the applicant's license will be revoked for a period of five years, in addition to the statutory minimum revocation period (15 NYCRR § 136.5[b][3] ) after which he may be issued a Class D permit or license with a problem driver restriction.

A person whose license has been permanently revoked can apply to respondent DMV, after the expiration of five or eight years, for a waiver in the interest of public safety and welfare (Vehicle and Traffic Law §§ 1193 [2][b][12][b][ii] and [e][iii]; 15 NYCRR § 136.10[b] ).

According to respondent DMV, the new 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 roadways.

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).

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, not a right. Since the issuance of a driver's license is a privilege granted by the State, and not a right, the State can condition receipt of it, or absolutely revoke it (People v. Walters, 30 Misc.3d 737, 750, 913 N.Y.S.2d 893 [NY City Ct.2010]; People v. Sukram, 142 Misc.2d 957, 959–960, 539 N.Y.S.2d 275 [Nassau County Dist. Ct. 1st Dist.1989] ).

The suspension or revocation of a driver's license is a civil sanction (Brady v. Department of Motor Vehs., 278 A.D.2d 233, 717 N.Y.S.2d 906 [2d Dept 2000], affirmed 98 N.Y.2d 625 [2002] ). It has been held that suspension or revocation of the privilege of operating a motor vehicle is essentially civil in nature having as its aim the chastening of the errant motorist and protection of 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] ).

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 Det. of Educ., 72 A.D.3d 1467, 1468, 900 N.Y.S.2d 174 [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 if 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] ).

It bears noting that the petitioner's driving history, as set forth in the decision denying his application, includes the following:

Petitioner's application was denied based on the respondent DMV's finding that petitioner's failure to observe the rules and regulations governing operation of a motor vehicle contributed to a serious lack of regard for the safety and welfare of fellow drivers. 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 last DWI offense on March 18, 2010, 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 Constitution2 prohibits states from enacting laws that retroactively alter the definition of a crime or increases the punishment for criminal acts (People v. Parilla, 109 A.D.3d 20, 970 N.Y.S.2d 497 [1st Dept 2013], lv to appeal denied 21 N.Y.3d 865 [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 A.D.3d 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 A.D.3d 441, 932 N.Y.S.2d 42 [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, 752 N.Y.S.2d 730 [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] [NY Sup.Ct. May 15, 2013] ), which petitioner did not do. As stated in Gaebel v. New York State Dept. Of Motor Vehicles, 976 N.Y.S.2d 816, 824, 2013 N.Y. Slip Op 23404 [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.

The objections raised by petitioner regarding to the new regulations contained in 15 NYCRR Part 136 lack merit. The record is devoid of any basis to conclude that respondent DMV exceeded its legislative authority; invaded an area preempted by the Legislature in adopting the new Part 136 given that as respondent DMV has been granted exclusive administrative authority over the revocation/issuance of driver's licenses and authority to adopt rules and regulations to carry out its responsibilities. Petitioner points to no provision in the Vehicle and Traffic Law which expressly precludes or limits the Commissioner's promulgation of rules regarding the reissuance of driver licenses. Nor dos the statute prohibit the adoption of laws governing lifetime review of an applicant's driving history. Moreover, Vehicle and Traffic Law § 1193[2][b][12][c] states that:

“For revocations imposed pursuant to clause [a] of this subparagraph, the commissioner may adopt rules to permit conditional or restricted operation of a motor vehicle ․ after a mandatory revocation period of not less than three years subject to such criteria, terms and conditions as established by the commissioner.”

“When a person is convicted of driving while intoxicated under Vehicle and Traffic Law § 1192[2] the court may sentence such person to a period of imprisonment ․ and shall sentence such person to a period of probation or conditional discharge in accordance with [Penal Law § 65.00) and shall order the installation and maintenance of a functioning ignition interlock device (Penal Law § 60.21).' “ People v. Barkley, 113 A.D.3d 1002, 978 N.Y.S.2d 920 [3d Dept 2013] ).

The administrative imposition of an ignition interlock device requirement, and the ignition interlock device provisions set forth in Part 136, is a rational extension of the foregoing policy and within the discretion of respondent DMV.

Accordingly, petitioner's request, inter alia, to declare amended 15 NYCRR Part 136 illegal, violative of the Ex Post Facto and Due Process Clauses of the United States Constitution, and to annul the denial of his application for relicensure by respondent DMV as arbitrary and capricious is denied.

The hybrid proceeding is dismissed.


1.  Petitioner's last DWI offense occurred on December 12, 2010, prior to the enactment of the new regulations. Petitioner applied for relicensure on or about August 28, 2012.

2.  Article 1, § 10 cl 1 of the United States Constitution provides, in part, that “No State shall ․ pass any ․ ex post facto law.”


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