State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 6, 2015 520060 

________________________________

In the Matter of KEVIN B.

ACEVEDO,

Appellant,

v OPINION AND ORDER

NEW YORK STATE DEPARTMENT OF

MOTOR VEHICLES et al.,

Respondents.

________________________________

Calendar Date: June 2, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.; 

 McCarthy, J., vouched in.

__________

Gerstenzang, O'Hern, Sills & Gerstenzang, Albany (Eric H.

Sills of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.

Lang of counsel), for respondents.

__________

Peters, P.J.

Appeal from a judgment of the Supreme Court (Ceresia Jr.,

J.), entered March 12, 2014 in Albany County, which dismissed

petitioner's application, in a combined proceeding pursuant to

CPLR article 78 and action for declaratory judgment, to, among

other things, review a determination of respondent Department of

Motor Vehicles denying petitioner's application for a driver's

license.

Petitioner was convicted of driving while ability impaired

in 2003 and driving while intoxicated in both 2006 and 2008. As

a result of his 2008 conviction, petitioner's driver's license
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was revoked for a minimum period of one year (see Vehicle and

Traffic Law § 1193 [2] [b] [3]). In February 2012, respondent

Department of Motor Vehicles (hereinafter DMV) approved

petitioner's application for a new license, but withdrew its

approval three days later. Shortly thereafter, DMV imposed a

statewide moratorium on the review of licensure applications

filed by applicants with multiple alcohol- and/or drug-related

driving offenses pending the adoption of emergency regulations

affecting the relicensing of recidivist drivers. 

Emergency regulations were adopted in the fall of 2012 and,

as is pertinent here, provide that respondent Commissioner of

Motor Vehicles "shall," for a period of at least five years plus

the revocation period imposed by the Vehicle and Traffic Law,

deny the relicensure application of any person with three

alcohol-related convictions, but no serious driving offense,1

during a 25-year look-back period (15 NYCRR 136.5 [b] [3]). Once

the waiting period expires, the Commissioner may, in her

discretion, grant a relicensing application, in which event she

"shall" issue the applicant a restricted 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" (15 NYCRR 136.5 [b] [3] [ii]). 

The regulations expressly reserve to the Commissioner the

discretion to deviate from the regulatory scheme when presented

with "unusual, extenuating and compelling circumstances" (15

NYCRR 136.5 [d]).

Citing the newly-enacted regulations, DMV denied

petitioner's application for a new license, and the

Administrative Appeals Board affirmed. Petitioner then commenced

this combined CPLR article 78 proceeding and declaratory judgment

action against DMV and its Commissioner seeking an order granting

1 A "[s]erious driving offense" means: "(i) a fatal

accident; (ii) a driving-related Penal Law conviction; (iii)

conviction of two or more violations for which five or more

points are assessed on a violator's driving record pursuant to

[15 NYCRR 131.3]; or (iv) 20 or more points from any violations"

(15 NYCRR 136.5 [a] [2]).
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him a new driver's license and declaring that the regulations

are, among other things, unconstitutional. Supreme Court

dismissed petitioner's application without a hearing, prompting

this appeal. 

I. JUSTICIABILITY

We first find that Supreme Court properly dismissed, as

nonjusticiable, petitioner's challenges to those provisions of

the regulations imposing a lifetime license revocation and

requiring the issuance of a restricted license and the

installation of an ignition interlock device. A controversy is

justiciable when the plaintiff in an action for a declaratory

judgment has "an interest sufficient to constitute standing to

maintain the action" (American Ins. Assn. v Chu, 64 NY2d 379, 383

[1985], appeal dismissed and cert denied 474 US 803 [1985];

accord Police Benevolent Assn. of N.Y. State Troopers, Inc. v New

York State Div. of State Police, 40 AD3d 1350, 1352 [2007],

appeal dismissed and lv denied 9 NY3d 942 [2007]). The claimed

harm must be "direct and immediate" – as opposed to merely

"insignificant, remote or contingent" – and such that it cannot

be "prevented or significantly ameliorated by . . .

administrative action or by steps available to the complaining

party" (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510,

520 [1986], cert denied 479 US 985 [1986] [emphasis added];

accord Matter of New York Blue Line Council, Inc. v Adirondack

Park Agency, 86 AD3d 756, 760 [2011], appeal dismissed 17 NY3d

947 [2011], lv denied 18 NY3d 806 [2012]).

A lifetime license revocation applies to persons with

either (1) five or more alcohol- or drug-related driving

convictions or incidents during his/her lifetime or (2) three or

four alcohol- or drug-related driving convictions or incidents

and a serious driving offense within the 25-year look-back period

(see 15 NYCRR 136.5 [b] [1], [2]). The imposition of a

restricted license and the installation of an ignition interlock

device are required only after the applicable waiting period has

expired and the Commissioner has approved the person's

application for a new license (see 15 NYCRR 136.5 [b] [3] [ii]).

Here, inasmuch as petitioner had three alcohol-related
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driving convictions and no "serious driving offense" during the

25-year look-back period, he was not subject to a lifetime

license revocation. As for his challenge to that part of

15 NYCRR 136.5 (b) (3) (ii) concerning the imposition of a

restricted license and the installation of an ignition interlock

device, such "harm" cannot eventuate until petitioner's

revocation period has expired and, even then, only if an

application for relicensing is subsequently approved by the

Commissioner.2 Alternatively, petitioner could apply for and be

granted an exemption from the restricted license and ignition

interlock device requirements (see 15 NYCRR 136.5 [d]), under

which circumstance that portion of the regulation would,

obviously, have no impact upon him. As "the harm sought to be

enjoined is contingent upon events which may not come to pass,

the claim . . . is nonjusticiable as . . . speculative and

abstract" (Matter of New York State Inspection, Sec. & Law

Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64

NY2d 233, 240 [1984]; see Matter of Association for a Better Long

Is., Inc. v New York State Dept. of Envtl. Conservation, 97 AD3d

1085, 1087 [2012], mod on other grounds 23 NY3d 1 [2014]; Matter

of Adirondack Council, Inc. v Adirondack Park Agency, 92 AD3d

188, 191 [2012]; Matter of New York Blue Line Council, Inc. v

Adirondack Park Agency, 86 AD3d at 761). Accordingly, Supreme

Court properly dismissed as nonjusticiable petitioner's challenge

to 15 NYCRR 136.5 (b) (1) and (2) and that portion of 15 NYCRR

136.5 (b) (3) (ii) that requires the issuance of a restricted

license and the installation of an ignition interlock device.3

2 At the time that Supreme Court reviewed DMV's denial of

his application for a new license, petitioner's revocation period

had not expired. It matters not that, since then, he has been

issued a restricted license and has been required to install an

ignition interlock device, as the justiciability of a claim is

determined at the time the trial court reviews the challenge (see

Hussein v State of New York, 81 AD3d 132, 135 [2011], affd 19

NY3d 899 [2012]).

3 To the extent that petitioner argues that the requirement

of justiciability is inapplicable here because he and respondents

entered into a stipulation staying 19 particular actions and/or
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II. SEPARATION OF POWERS

Next, we address petitioner's argument that the Legislature

preempted the field of "DWI law" by enacting Vehicle and Traffic

Law article 31. The doctrine of field preemption "has limited

utility where, as here, a perceived conflict between legislative

policy and administrative action at the same level of government

is at issue" (Boreali v Axelrod, 71 NY2d 1, 15 [1987]; see Matter

of Consolidated Edison Co. of N.Y. v Department of Envtl.

Conservation, 71 NY2d 186, 193 [1988]). Rather than engaging in

a preemption analysis, the dispositive inquiry is whether the

legislative branch of government intended, as evidenced by the

scope and language of the enabling legislation, "to grant

regulatory authority over a specific subject matter to an

administrative agency which exists as part of the coequal

executive branch" (Boreali v Axelrod, 71 NY2d at 15; see Matter

of Nicholas v Kahn, 47 NY2d 24, 31-32 [1979]).

The Legislature has vested the Commissioner with broad

authority to promulgate regulations to "regulate and control the

exercise of" DMV's powers (Vehicle and Traffic Law § 215 [a]). 

Among those powers is the Commissioner's authority to approve or

deny relicensing applications (see Vehicle and Traffic Law § 510

[5]), including those submitted by persons whose licenses were

revoked for alcohol- or drug-related driving offenses (see

Vehicle and Traffic Law § 1193 [2] [c] [1]). Indeed, the Vehicle

and Traffic Law provides that "[a] license . . . may be restored

by direction of the [C]ommissioner but not otherwise" (Vehicle

and Traffic Law § 510 [5]) and that, "[w]here revocation [of a

license] is mandatory," a new license shall not be issued for the

statutorily-designated period of time, "except in the discretion

of the [C]ommissioner" (Vehicle and Traffic Law § 510 [6]). 

proceedings pending the resolution of this action/proceeding and

five others, which were deemed to be representative of "the core

legal issues" present in the stayed actions/proceedings, it is

sufficient to note that justiciability cannot be waived (see

Matter of New York Blue Line Council, Inc. v Adirondack Park

Agency, 86 AD3d at 760 n 4; 333 Cherry LLC v Northern Resorts,

Inc., 66 AD3d 1176, 1178 n 3 [2009]).
-6- 520060 

Further, while the Vehicle and Traffic Law establishes minimum

periods of revocation for alcohol- or drug-related driving

offenses, it also provides that revoked licenses may only be

restored "in the discretion of the [C]ommissioner" (Vehicle and

Traffic Law § 1193 [2] [c] [1]) and "that the [C]ommissioner may,

on a case[-]by[-]case basis, refuse to restore a license which

would otherwise be restored [under the statute], in the interest

of the public safety and welfare" (Vehicle and Traffic Law § 1193

[2] [b] [12]). Together, these statutory provisions lead to the

inexorable conclusion that the Legislature intended to grant DMV

regulatory authority over the relicensing of persons with

multiple alcohol- and/or drug-related driving offenses (see

Matter of Shearer v Fiala, 124 AD3d 1291, 1292 [2015], lv denied

25 NY3d 909 [2015]).

We now consider whether DMV exceeded the bounds of that

regulatory authority by making "'broad-based public policy

determinations'" when it promulgated the challenged regulations

(Matter of New York Statewide Coalition of Hispanic Chambers of

Commerce v New York City Dept. of Health & Mental Hygiene, 110

AD3d 1, 7-8 [2013], affd 23 NY3d 681 [2014], quoting Rent

Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156, 169

[1993], cert denied 512 US 1213 [1994]). To determine whether an

administrative agency has usurped the power of the Legislature,

courts must consider whether the agency: (1) "operat[ed] outside

of its proper sphere of authority" by balancing competing social

concerns in reliance "solely on [its] own ideas of sound public

policy"; (2) engaged in typical, "interstitial" rulemaking or

"wrote on a clean slate, creating its own comprehensive set of

rules without the benefit of legislative guidance"; (3) "acted in

an area in which the Legislature has repeatedly tried – and

failed – to reach agreement in the face of substantial public

debate and vigorous lobbying by a variety of interested

factions"; and (4) applied its "special expertise or technical

competence" to develop the challenged regulations (Boreali v

Axelrod, 71 NY2d at 12-14 [internal quotation marks and citations

omitted]; see Matter of NYC C.L.A.S.H., Inc. v New York State

Off. of Parks, Recreation & Historic Preserv., 125 AD3d 105, 108

[2014], lv denied 25 NY3d 963 [2015]).

We find that, in enacting the challenged regulations, DMV
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did not act on its own ideas of public policy, but rather

implemented the Legislature's policies of promoting highway

safety and reducing instances of impaired and intoxicated

driving. Indeed, the Legislature has expressed its concern with

"[t]he ever-increasing number of accidents, personal injuries and

deaths resulting from alcohol[-] or drug-related traffic

offenses" (Vehicle and Traffic Law § 520) and, to address that

concern, has prohibited the impaired or intoxicated operation of

a motor vehicle and has assigned "minimum" periods of license

revocation for violating this prohibition (Vehicle and Traffic

Law §§ 1192, 1193 [2] [b]). Once such "minimum" period expires,

the Commissioner is vested with discretion to approve or deny

relicensing requests (Vehicle and Traffic Law § 1193 [2] [c]

[1]). As the dissent recognizes, Vehicle and Traffic Law § 1196

(5) grants the Commissioner the authority to vacate a revocation

order and reinstate a license before expiration of the minimum

statutory period if the applicant completes an alcohol and drug

rehabilitation program. However, that statutory provision does

not distinguish between first-time offenders and recidivist

drivers and affords the Commissioner the "discretion" to evaluate

the varying circumstances of applicants and determine whether to

cut the minimum revocation period short (Vehicle and Traffic Law

§ 1196 [5]). Inasmuch as the Commissioner has the discretion to

continue license revocations beyond the statutory minimum period

and recidivist drivers pose a heightened risk to the safety of

public roadways (see NY Reg, Mar. 13, 2013 at 46), we find that

respondents promulgated 15 NYCRR 136.5 (b) (3) in furtherance of

legislatively-defined policy and thus engaged in permissible,

interstitial rulemaking.

Contrary to the dissent, we do not view 15 NYCRR 136.5 (b)

(3) as replacing the discretion granted to the Commissioner over

relicensing determinations. Rather, the regulation represents

the Commissioner's discretionary determination to impose, in

addition to the statutory minimum, a five-year revocation period

upon anyone who committed three or four alcohol- or drug-related

driving offenses within a 25-year period. By promulgating such a

regulation, the Commissioner not only revealed how she chooses to

exercise her discretion with respect to three- or four-time

recidivists, but ensured that such discretion is uniformly

applied to all similarly situated persons. Moreover, while 15
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NYCRR 136.5 (b) (3) defines the Commissioner's general position

on persons with three or four qualifying offenses, the

Commissioner retains the discretion to deviate from that position

in "unusual, extenuating and compelling circumstances" (15 NYCRR

136.5 [d]).

Further, while it is true that various bills involving the

imposition of stricter penalties upon recidivist drivers have

been introduced into the Senate and Assembly, most of those bills

have failed to make it out of committee (see Rent Stabilization

Assn. of N.Y. City v Higgins, 83 NY2d at 170; Matter of NYC

C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation &

Historic Preserv., 125 AD3d at 110-111). As the early demise of

such proposed legislation could well be an expression of the

Legislature's intent to keep intact the Commissioner's broad

discretionary authority over relicensing, we cannot conclude, on

this factor alone, that respondents exceeded their authority in

promulgating the regulations (see generally Rent Stabilization

Assn. of N.Y. City v Higgins, 83 NY2d at 170). Finally, inasmuch

as respondents relied on their own empirical data regarding the

number of statewide personal injuries and deaths caused by

recidivist drivers, we find that a fair amount of expertise was

required to promulgate the regulations. Accordingly, upon

consideration of these coalescing factors, we hold that

respondents did not run afoul of the constitutional separation of

powers doctrine by promulgating the regulations.

III. STATUTORY CONFLICT

Nor do we conclude that 15 NYCRR 136.5 (b) (3) conflicts

with the Vehicle and Traffic Law. Vehicle and Traffic Law § 1193

(2) (b) sets "minimum periods" during which the Commissioner

cannot reissue a revoked license, but also vests the Commissioner

with complete discretion to determine whether relicensing is

appropriate once the minimum period expires. While the statutory

provision applicable to petitioner includes a 10-year look-back

period, that look-back period is used only to set the minimum

revocation period (see Vehicle and Traffic Law § 1193 [2] [b]

[3]). Because the relevant statutory provisions merely involve

the fixing of minimum revocation periods, we discern no conflict

between the enabling statute and 12 NYCRR 136.5 (b) (3)'s five-
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year revocation period or 25-year look-back period (see Matter of

Shearer v Fiala, 124 AD3d at 1292).

IV. RETROACTIVITY/EX POST FACTO PROHIBITION

We also reject petitioner's assertion that DMV's denial of

his request for a new license constituted an impermissible

retroactive application of 15 NYCRR 136.5 (b) (3) and a violation

of the Ex Post Facto Clause of the US Constitution. Legislation

is retroactive when it "takes away or impairs vested rights"

(McKinney's Cons Laws of NY, Book 1, Statutes § 51 [a]) or

"'alter[s] past transactions or considerations'" (Matter of Scism

v Fiala, 122 AD3d 1197, 1198 [2014], quoting Matter of Allied

Grocers Coop. v Tax Appeals Trib., 162 AD2d 791, 792 [1990]). As

we have iterated, a driver's license is "a personal privilege

subject to reasonable restrictions and revocation by [the

Commissioner in] her discretionary powers," not a vested right

(Matter of Scism v Fiala, 122 AD3d at 1198; see Matter of Kenny v

Fiala, 127 AD3d 1359, 1360 [2015]; see also Matter of Lap v

Axelrod, 95 AD2d 457, 459 [1983], lv denied 61 NY2d 603 [1984]). 

The regulations are not retroactive merely because they permit

the consideration of an alcohol- or drug-related driving

conviction that occurred before their promulgation to determine a

person's eligibility to enjoy the privilege of possessing a

driver's license (see Matter of St. Clair Nation v City of New

York, 14 NY3d 452, 456-458 [2010]; Forti v New York State Ethics

Commn., 75 NY2d 596, 609 [1990]). Finally, the prohibition

contained in the Ex Post Facto Clause of the US Constitution

applies only to penal statutes and not to regulations such as

those at issue here (see Kellogg v Travis, 100 NY2d 407, 410

[2003]; Matter of Santiago v Roy, 117 AD3d 1352, 1353 [2014];

Matter of Suce v Taylor, 37 AD3d 886, 887 [2007], lv denied 9

NY3d 803 [2007]; Matter of Robinson v Bennett, 300 AD2d 715, 716

[2002]; but see Matter of McKevitt v Fiala, 129 AD3d 730, 731

[2015]).

V. REMAINING ISSUES

Petitioner's remaining contentions do not require extended

discussion. While a conviction for aggravated unlicensed

operation of a motor vehicle in the first degree and a youthful
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offender adjudication of driving while intoxicated are excluded

from the regulation's definition of alcohol- or drug-related

driving conviction or incident (see 15 NYCRR 136.5 [a] [1]), a

rational basis exists to support these exclusions, as a person

need not be under the influence of alcohol or drugs to be

convicted of aggravated unlicensed operation of a motor vehicle

in the first degree (compare Vehicle and Traffic Law § 511 [3]

[a] [i], with Vehicle and Traffic Law § 511 [3] [a] [ii], [iii]),

and youthful offender adjudications "are confidential and may not

be made available to any . . . public . . . agency" (CPL 720.35

[2]). Lastly, because petitioner's challenges implicated purely

legal questions, Supreme Court did not err in dismissing the

petition without a hearing (see Matter of Kenny v Fiala, 127 AD3d

at 1360; Matter of Akshar v Mills, 249 AD2d 786, 788 [1998], lv

dismissed 92 NY2d 962 [1998]).

Lahtinen and McCarthy, JJ., concur.

Lynch, J. (dissenting).

We respectfully dissent. Initially, we agree with the

majority that petitioner's standing is limited to challenging

those aspects of the regulations that impact him, but would

expand that challenge to all of 15 NYCRR 136.5 (b) (3) (ii). A

party has standing if he or she has "a legally cognizable

interest that is or will be affected by the [administrative]

determination" (Matter of Sun-Brite Car Wash v Board of Zoning &

Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]

[emphasis added]). Here, petitioner, who received a statutory

penalty of a one-year revocation as a result of his conviction,

commenced this combined CPLR article 78 proceeding and

declaratory judgment action when respondent Commissioner of Motor

Vehicles denied his application for relicensure and imposed a

five-year stay (see 15 NYCRR 136.5 [b] [3] [ii]). At the time,

he was directly impacted by the stay, but it was evident that he

would only be eligible for an A2 restricted license, coupled with
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an ignition interlock device, during the next five years1 (see 15

NYCRR 136.5 [b] [3] [ii]). This is clearly a situation where the

future event, i.e., the application for a reissued license and

the issuance of a restricted license under the regulation, were

contemplated by the parties (see Hussein v State of New York, 81

AD3d 132, 135-136 [2011], affd 19 NY3d 899 [2012]). In our view,

a challenge to the initial five-year stay necessarily implicates

the Commissioner's continuing regulatory authority and, thus, the

regulation either stands or falls as a package. 

Next, we also agree with the majority that the Legislature

has given the Commissioner extremely broad authority to regulate

the issuance of licenses following a statutory revocation (see

Vehicle and Traffic Law §§ 215, 510 [5]; 1193 [2] [b] [12]; [c]

[1]). As provided by Vehicle and Traffic Law § 1193 (2) (c) (1),

no new license shall be issued after a statutory revocation is

imposed for an alcohol-related offense "except in the discretion

of the [C]ommissioner" (emphasis added). That authority,

however, must be tempered by the Commissioner's administrative

role because, "[h]owever facially broad, a legislative grant of

authority must be construed, whenever possible, so that it is no

broader than that which the separation of powers doctrine

permits" (Boreali v Axelrod, 71 NY2d 1, 10 [1987]). In our view,

the Commissioner exceeded the scope of her regulatory authority

by adopting, as pertinent here, emergency regulations that

mandate a five-year stay of the relicensure application of any

person with three alcohol-related convictions during a 25-year

look-back period (see 15 NYCRR 136.5 [b] [3]). The same holds

true for the subsequent five-year period during which the

Commissioner has determined to allow, if at all, only an A2

restricted license, with an ignition interlock device (see 15

NYCRR 3.2 [c] [4]; 136.4 [b] [2]; 136.5 [b] [3]).

1 In his brief, the Attorney General candidly acknowledges

that "petitioner would likely be affected" by the A2 restricted

license and ignition interlock device requirements. It is

undisputed that petitioner has since received an A2 restricted

license, subject to the use of an ignition interlock device under

15 NYCRR 136.5 (b) (3) (ii).
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The Vehicle and Traffic Law establishes firm criminal

penalties and license sanctions for alcohol- and drug-related

offenses that reflect a balance between public safety and the

hardship encountered in losing one's driving privileges (see

Vehicle and Traffic Law § 1193). Relevant here, a driver's

license must be revoked for a period of one year where the driver

has at least one prior alcohol- or drug-related offense within a

10-year period (see Vehicle and Traffic Law § 1193 [2] [b] [3]). 

Even then, the statute grants the Commissioner the authority to

terminate such revocation upon the completion of alcohol and drug

rehabilitation (see Vehicle and Traffic Law § 1196 [5]). 

The question presented here is whether the Commissioner

usurped the legislative policy-making role by effectively

yielding her statutory discretion to a regulation that prohibits

and then restricts the reissuance of a license for a 10-year

period. In our view, because the Commissioner "crossed the hazy

'line between administrative rule-making and legislative policymaking'" (Greater New York Taxi Assn. v New York City Taxi &

Limousine Commn., ___ NY3d ___, ___, 2015 NY Slip Op 05514, *7,

quoting Boreali v Axelrod, 71 NY2d at 11), this question must be

answered affirmatively. Upon consideration of the "coalescing

circumstances" set forth by the majority (Boreali v Axelrod, 71

NY2d at 12-14; see Matter of NYC C.L.A.S.H., Inc. v New York

State Off. of Parks, Recreation & Historic Preserv., 125 AD3d

105, 108 [2014], lv denied 25 NY3d 963 [2015]), as to the first

two factors, we agree that the regulations are generally

consistent with a strong legislative policy of promoting public

safety by reducing alcohol-related driving incidents. In

application, however, we find that regulation impermissibly

requires the Commissioner to act contrary to her statutory

authority. As set forth above, the statute grants the

Commissioner discretion to reissue a license after a revocation

period expires and even to terminate a one-year revocation once

the driver meets certain conditions (see Vehicle and Traffic Law

§ 1196 [5]). In contrast, the Commissioner has enacted a

"general policy" to refuse to reissue a license for an extended

five-year period in all cases absent a showing "of unusual,

extenuating and compelling circumstances" (15 NYCRR 136.5 [d]). 

This last qualifying phrase, in which the Commissioner has

reserved the option of waiving the stay, does not resolve the
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problem because, by definition, a five-year stay is the standard

and not, of itself, a hardship. The waiver language speaks to an

extreme scenario that frankly is difficult to define, but leaves

intact a general stay policy. The net effect is predictable

enforcement, without regard to the underlying circumstances. By

imposing this regulatory limitation, it is our view that the

agency "was 'acting solely on its own ideas of sound public

policy'" (Boreali v Axelrod, 71 NY2d at 12, quoting Matter of

Picone v Commissioner of Licenses, 241 NY 157, 162 [1925]). It

is telling that, under the challenged regulation, petitioner's

license has been effectively revoked for a six-year period (the

initial one-year statutory revocation, plus the five-year

regulatory stay). By comparison, had petitioner incurred the

three alcohol-related offenses within a shorter, four-year

period, statutorily his license would have been permanently

revoked, subject to a mandatory waiver after five years (see

Vehicle and Traffic Law § 1193 [b] [12]). In effect, by virtue

of the new regulation, petitioner has been subjected to a longer

revocation than that statutorily imposed upon a recidivist driver

with a temporally worse driving record. This consequence shows

that the Commissioner has simply gone too far. 

Establishing what is in effect a general bar to

unrestricted relicensure for a 10-year period following a

statutory revocation, the Commissioner did not "merely fill in

the details of broad legislation" (Boreali v Axelrod, 71 NY2d at

13). Rather, she abdicated her statutory mandate to exercise her

discretion in favor of a hard and fast rule, waivable only under

extremely limited circumstances. In contrast, and with respect

to the third Boreali factor, prior to the promulgation of this

emergency rule, the Legislature considered but did not enact

"Charlotte's Law," a bill that would have required harsher

penalties for recidivist drivers (see 2011 NY Senate-Assembly

Bill S6496, A8934b).2 Correspondingly, the Legislature has since

2 Focused on recidivist drivers, the proposed legislation

provided for a permanent revocation in an instance, as here,

where a driver had three alcohol-related offenses in violation of

Vehicle and Traffic Law § 1192, within an expanded 25-year lookback period. Contrary to petitioner's argument, the challenged
-14- 520060 

adopted what is known as "Vince's Law" to heighten the criminal

consequences of a recidivist offender. Specifically, Vehicle and

Traffic Law § 1193 (1) (c) (ii) now provides that a driver with

three Vehicle and Traffic Law § 1192 convictions within the

preceding 15 years shall be guilty of a class D felony (see L

2014, ch 191, §§ 1, 2, 3 [eff Nov. 1, 2014]). By adopting a

policy creating an automatic stay in all cases absent "unusual,

extenuating and compelling circumstances," the Commissioner has

"impose[d] a solution of [her] own" to address the public safety

issue created by recidivist drivers (Boreali v Axelrod, 71 NY2d

at 13). Based on the foregoing, we would grant the petition to

the extent that 10 NYCRR 136.5 (b) (3) should be declared null

and void, and remit the matter to the Commissioner for further

consideration of petitioner's relicensure application.

Garry, J., concurs.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

regulation does not mirror Charlotte's Law. While the regulation

does embrace the 25-year look-back period, it does not go so far

as to mandate a permanent revocation. Charlotte's Law did not

advance beyond the legislative committee stage.