Under the VTL, permanent revocation “shall be waived” after a fixed period of time – either five or eight years, depending on the offender's conduct – and upon satisfaction of specified conditions, “[p]rovided, however, that the commissioner [of the DMV] may, on a case by case basis, refuse to restore a license which otherwise would be restored … in the interest of the public safety and welfare” (VTL § 1193(2)(b)(12)(b); see also VTL § 1193 (2)(b)(12)(e))).

As a general matter, once an offender's license has been revoked – permanently or otherwise – reissuance of a new license is subject to the discretion of the DMV's commissioner (VTL § 510(6)(a); VTL § 1193 (2)(c)). Specifically, where a license was revoked pursuant to VTL § 1193(2)(b), “no new license shall be issued after the expiration of the minimum period specified … except in the discretion of the commissioner” (VTL § 1193(2)(c) (emphasis added)). The commissioner's discretion to reissue a new license following the prescribed statutory revocation period is limited only if specified; for instance, the commissioner is barred from issuing a new license to an offender who has two drunk driving convictions resulting in physical injury to another person (VTL § 1193(2)(c)(2)-(3)).

Regulatory Scheme

The VTL authorizes the DMV commissioner to, “[s]ubject to and in conformity with the provisions of the vehicle and traffic law … enact, amend and repeal rules and regulations which shall regulate and control the exercise of the powers of the [DMV] and the performance of the duties of officers, agents and other employees thereof” (VTL § 215). This authority includes the power to “promulgate regulations” with respect to the administration of licensing procedures (VTL § 508(4)).

The commissioner first promulgated regulations to address post-revocation relicensing in 1980. Those regulations specified that the DMV would decline to issue a new license to an applicant who had (i) a “history of abuse of alcohol or drugs … with insufficient evidence of rehabilitation” (15 NYCRR former 136.4(a)(2)), or (ii) accumulated 25 or more “negative safety points” – corresponding to certain VTL violations – within the three years immediately preceding the application (15 NYCRR former 136.4(a)(3); 15 NYCRR former 136.1(b)(6)).

The DMV amended the 1980 regulations a number of times over the years, including in 1982, 2006, and 2011. In 2011, for instance, the regulations were amended to provide that, in considering relicensing applications, the DMV would evaluate an applicant's “entire driving history” for purposes of determining whether the applicant was a “problem driver” who had created “an unusual and immediate risk upon the highways” (15 NYCRR former 136.1(b)(1)). If so, the DMV would deny the application and decline to consider a further application for one year following the denial (15 NYCRR former 136.4(b)).

According to the DMV, the 2011 amendments remained inadequate to address the safety risk posed by recidivist drunk drivers, and the DMV's statistics indicated that a small number of relicensed recidivist drunk drivers remained responsible for a disproportionate number of accidents. In early 2012, the DMV “began an extensive review of the processes and criteria used when making relicensing decisions, particularly as they apply to persons applying for relicensing after being revoked for an alcohol- or drugged-driving related offense” (N.Y. Reg, March 13, 2013, at 46). In February 2012, “[i]n the interest of ensuring that drivers with similar records would be treated uniformly,” the DMV began holding pending relicensing applications in abeyance if the applicant's record “contained multiple alcohol-related violations of the [VTL].”

The DMV adopted emergency regulations in September 2012 (the “Regulations”) that took effect immediately. In relevant part, the Regulations provide that, “[u]pon receipt of a person's application for relicensing, the [c]ommissioner shall conduct a lifetime review of such person's driving record” (15 NYCRR 136.5(b)). The commissioner “shall deny the application” if “the record review shows that”: (1) the applicant has “five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime,” (15 NYCRR 136.5(b)(1)) or (2) within a “25 year look back period,” the applicant “has three or four alcohol- or drug-related driving convictions or incidents in any combination” and “one or more serious driving offense” (15 NYCRR 136.5(b)(2)).

A “serious driving offense” includes:

- “a fatal accident”;

- “a driving-related Penal Law conviction”;

- “conviction of two or more violations for which five or more points are assessed” on the applicant's driving record; or

- “20 or more points from any violations.”

15 NYCRR 136.5(a)(2).

For applicants with “three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period,” the Regulations provide that the commissioner “shall deny the application for at least five years” in addition to the minimum statutory revocation period (15 NYCRR 136.5(b)(3)). Following the expiration of this five-year waiting period, the commissioner “may in his or her discretion approve the application, provided that upon such approval, the [c]ommissioner 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.” An A2 restricted license is limited to operation to and from specified destinations – for instance, “the holder's place of employment or education” (see 15 NYCRR 135.9(b); 15 NYCRR 3.2(c)(4)).

The commissioner is expressly permitted to “deviate from the general policy” set forth in the Regulations “in the exercise of discretionary authority granted” under the VTL (15 NYCRR 136.5(d)). Specifically, the commissioner may approve a relicensing application based on a showing of “unusual, extenuating and compelling circumstances,” in which case “the applicant may be issued a license or permit with a problem driver restriction … and may be required to install an ignition interlock device.”

The Case

Following their most recent drunk driving convictions, the driver's licenses of Kevin B. Acevedo, Caralyn A. Matsen, and Michael W. Carney (collectively, the “petitioners”) were revoked pursuant to VTL § 1193(b), and their respective relicensing applications were decided in accordance with the Regulations.

Acevedo had been convicted of three drunk driving offenses between 2003 and 2008. Each time, his license was revoked. Acevedo's most recent conviction triggered a one-year statutory revocation period, after which he applied for relicensing for the third time, in October 2011. In February 2012, Acevedo received a letter from the DMV indicating that he had been approved to apply for a driver's license, subject to passing written and road tests. Three days later, the DMV withdrew its approval and notified Acevedo that his application would be subjected to additional review.

Eventually, in November 2012, Acevedo's application was denied pursuant to the Regulations; under 15 NYCRR 136.5(b)(3), Acevedo's application would be denied for at least five years following the expiration of his statutory revocation period, and he then would become eligible to apply for an A2 restricted license with the requirement that he install an ignition interlock device.

Carney had been convicted of six drunk driving offenses. Following his most recent conviction in 2011, Carney's driver's license was revoked for the third time and he incurred a six-month statutory revocation period. Carney again applied for relicensing in June 2012. His application was held in abeyance pending the anticipated enactment of the Regulations, and was ultimately denied pursuant to 15 NYCRR 136.5(b)(1), as Carney had “five or more” drunk driving convictions in his lifetime.

Matsen had accumulated three drunk driving convictions between 2000 and 2010. She also had received 12 points on her driving record based on two separate speeding incidents in 2004. In March 2012 – following her 2010 drunk driving conviction and a one-year statutory revocation period – Matsen again applied for relicensing. The DMV initially held her application in abeyance, and then in November 2012, Matsen's application was denied pursuant to 15 NYCRR 136.5(b)(2). Given her three drunk driving offenses and her two six-point speeding violations – which, together, constituted a “serious driving offense” – Matsen's driving record triggered a presumptive lifetime denial.

Acevedo, Matsen, and Carney appealed the denial of their respective relicensing applications to the administrative appeals board, which affirmed the DMV's denial of their applications. Acevedo, Matsen, and Carney then filed lawsuits challenging the lawfulness of the Regulations as well as the application of the Regulations to their relicensing applications.

The trial court dismissed each proceeding, and the petitioners appealed.

The appellate court affirmed, and the cases reached the New York Court of Appeals.

The New York Court of Appeals Decision

The court affirmed.

First, the court rejected the petitioners' arguments that the Regulations conflicted with statutory provisions of the VTL because an offender was entitled to relicensing under the VTL upon expiration of the statutory revocation period.

The court pointed out that the VTL “expressly provides” that the statutory revocation periods are “minimum” time periods during which an offender's driver's license must remain “revoked” (VTL § 1193(2)(b)). With respect to the “[r]eissuance of licenses,” the court continued, the VTL provides that, following “the expiration of the minimum [revocation] period,” relicensing applications are to be decided solely “in the discretion of the commissioner” (VTL § 1193 (2)(c)). The court then found that, by design, the statutory scheme contemplates that the commissioner will have “exclusive authority over post-revocation relicensing, and that those relicensing determinations will be discretionary.”

The court also was not persuaded by the petitioners' contention that VTL § 1193(2)(b)(12)(b) mandates relicensing where an offender otherwise qualifies for a waiver of permanent revocation under that provision. It reasoned that although VTL § 1193(2)(b)(12)(b) provides that permanent revocation “shall be waived” under specified circumstances, that statutory mandate “remains subject to the discretion of the [c]ommissioner,” who “may, on a case by case basis, refuse to restore a license which otherwise would be restored … in the interest of the public safety and welfare” (VTL § 1193(2)(b)(12)(b)). The court said that VTL § 1193(2)(b)(12)(b) provides that the commissioner may, in her discretion, consider a relicensing application from an offender who is otherwise qualified for a waiver, notwithstanding that offender's permanent revocation.

Similarly the court rejected the petitioners' contention that the commissioner had contravened her statutory mandate to exercise discretion on a case by case basis by adopting hard and fast rules that are waivable only under limited circumstances, ruling that, by promulgating rules to govern relicensing, the commissioner “ensures that her discretion is exercised consistently and uniformly, such that similarly-situated applicants are treated equally.”

Second, the court rejected the petitioners' contention that the Regulations amounted to legislative policymaking, not administrative rulemaking, in violation of the separation of powers doctrine. The court explained that the authority delegated to the commissioner with regard to licensing was “broad.” It conceded that the line between administrative rule-making and legislative policy-making might be “difficult to define,” but it ruled that the Regulations fell “squarely within the bounds of valid administrative action.”

Third, the court found that the Regulations were not arbitrary and capricious, rejecting the petitioners' challenge to the meaning of “[s]erious driving offense” (15 NYCRR 136.5(a)(2)) and “alcohol- or drug-related driving conviction or incident” (15 NYCRR 136.5(a)(1)), as defined by the Regulations. Acknowleding the “carnage caused by drunk drivers,” the court ruled that the Regulations had a “sound and reasonable basis.”

Finally, the court ruled that the denial of the petitioners' relicensing applications did not constitute an impermissible retroactive application of the Regulations and a violation of the Ex Post Facto Clause of the U.S. Constitution (U.S. Const, art 1, § 10, cl 1).

The court said that the Regulations had not been impermissibly applied retroactively to the petitioners' applications simply because the commissioner had considered prior conduct – namely, the petitioners' drunk driving offenses – that predated the Regulations.

Accordingly, the court concluded, the lower courts had properly upheld the Regulations – and their application to the petitioners' relicensing applications – as a valid exercise of the commissioner's delegated authority.

The case is Matter of Acevedo v. N.Y. State Dep't of Motor Vehicles, Nos. 40, 41, 42 (N.Y. May 9, 2017). Attorneys involved include: Eric H. Sills, for appellant; Jeffrey W. Lang, for respondents; Jonathan D. Hitsous, for respondents.