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27-1-21 Wncv O'Connor vs. State of Vermont

VERMONT SUPERIOR COURT CIVIL DIVISION

Washington Unit

65 State Street

Montpelier VT 05602

802-828-2091

www.vermontjudiciary.org

Case No. 27-1-21 Wncv

O'Connor vs. State of Vermont

ORDER

Appellant Timothy O’Connor seeks Rule 74 review of a decision of a Vermont Agency of Transportation 

hearing examiner affirming the Department of Motor Vehicle’s reimposition of the life suspension of his 

driver’s license pursuant to 23 V.S.A. § 1209a(b) (reinstatement upon proof of abstinence) after determining 

that he violated a condition of reinstatement requiring total abstinence from alcohol. On appeal, Mr. 

O’Connor argues that his hearing was procedurally inadequate, the evidence does not support the hearing 

examiner’s findings, and the “total abstinence” condition placed on his reinstatement by the previous hearing 

examiner who reinstated his license is invalid and unenforceable. In response, the State argues that the 

condition was authorized by statute, it was a reasonable exercise of the Commissioner’s power, it cannot be 

collaterally attacked now, the evidence supports the finding that Mr. O’Connor violated it, and any procedural 

informalities in the hearing below caused no prejudice.

The court concludes that the total abstinence condition imposed by the hearing examiner at the time 

of reinstatement in 2009 is invalid and unenforceable. The court thus focuses on that issue.

Mr. O’Connor’s driver’s license was suspended for life in 2005 following a third or subsequent 

conviction for driving under the influence. At the time, Vermont law allowed a person with a life suspension to 

apply for reinstatement of the suspended license following “three years of total abstinence from consumption 

of alcohol or drugs, or both.” On a showing that the applicant (1) had so abstained, (2) had completed a 

required therapy program, and (3) “appreciates that he or she cannot drink any amount of alcohol and drive 

safely,” the DMV was required to reinstate the person’s license. Mr. O’Connor eventually applied for 

reinstatement under these provisions. Though a DMV investigator was not entirely persuaded that Mr. 

O’Connor had met the abstinence requirement, following a hearing, an AOT hearing examiner determined that 

he had satisfied the evidentiary standard on that point. The hearing examiner made the other requisite 

findings and reinstated Mr. O’Connor’s license.

Upon doing so, the hearing examiner imposed a condition: “Pursuant to Section 1209a(b), Petitioner’s 

reinstatement is conditioned upon Petitioner’s continued and permanent total abstinence from the 

consumption of alcohol and drugs. In the event that the Commissioner finds that Petitioner has not 

maintained total abstinence, Petitioner’s suspension shall be reissued for the period of its original term [i.e., 
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life].” AOT hearing examiner decision dated August 7, 2009. Having successfully persuaded the DMV to 

reinstate his license, Mr. O’Connor did not appeal.

Nothing in § 1209a(b) or related statutes at the time said anything about such a condition. The 

hearing examiner’s decision, however, also includes this:

On May 23, 2007, pursuant to the Commissioner’s authority under 23 V.S.A. § 

1209a(b), the Commissioner of Motor Vehicles determined that all future total abstinence 

reinstatements “shall be conditioned upon the person’s continued and permanent total

abstinence from the consumption of alcohol or drugs. In the event that it is found that total 

abstinence has not been maintained, the suspension shall be reissued for the period of its 

original term.”

Id. at 4, Findings ¶ 17. There is no indication in the record that this policy was a formal exercise of 

administrative power, such as a duly adopted rule following notice and comment procedures.

In 2019, a DMV investigator conducted an investigation and determined that Mr. O’Connor had not 

remained completely abstinent from alcohol in breach of the total abstinence condition, and his life 

suspension was reimposed. Mr. O’Connor sought administrative review and, following a hearing, an AOT 

hearing examiner found that he had not remained totally abstinent and affirmed the reimposition of his life 

suspension. Disputing that determination, Mr. O’Connor then sought review here.

There has never been any allegation or evidence, much less a finding, to the effect that Mr. O’Connor 

has operated or attempted to operate any vehicle after consuming any alcohol since reinstatement.

Mr. O’Connor argues that the total abstinence condition imposed at the time of reinstatement was 

invalid because it violated 23 V.S.A. § 1209a(b) and thus is unenforceable. The State argues that the condition 

was authorized by statute then as now, and Mr. O’Connor cannot collaterally attack it because he failed to 

appeal when it was imposed.

Both parties and the court agree that the version of 23 V.S.A. § 1209a that applies in this case is the 

one that existed between the 2007 and 2009 amendments. 2007, No. 76, § 16; 2009, No. 23, § 1. That 

version, in relevant part, is as follows:

Notwithstanding any other provision of this subchapter, a person whose license has been 

suspended for three years or more under this subchapter may apply to the driver 

rehabilitation school director and to the commissioner for reinstatement of his or her driving 
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privilege. In the case of a suspension for three years, the person shall have completed two 

years of total abstinence from consumption of alcohol or drugs, or both. In the case of a 

suspension for life, the person shall have completed three years of total abstinence from 

consumption of alcohol or drugs, or both. In both cases, the beginning date for the period of 

abstinence shall be no sooner than the effective date of the suspension from which the person 

is requesting reinstatement and shall not include any period during which the person is serving 

a sentence of incarceration to include furlough. If the commissioner, or a medical review 

board convened by the commissioner, is satisfied by a preponderance of the evidence that the 

applicant has abstained for the required number of years immediately preceding the 

application and hearing, has successfully completed a therapy program as required under this 

section and the person appreciates that he or she cannot drink any amount of alcohol and 

drive safely, the person’s license shall be reinstated immediately upon such conditions as the 

commissioner may impose. If after notice and hearing the commissioner later finds that the 

person was operating, attempting to operate or in actual physical control of a vehicle while the 

person’s alcohol concentration was 0.02 or more following reinstatement under this 

subsection, the person’s operating license or privilege to operate shall be immediately 

suspended for the period of the original suspension. A person shall be eligible for 

reinstatement under this section only once following a suspension for life.

23 V.S.A. § 1209a(b) (2008).

Validity of total abstinence condition

As relevant here, there are three key components to the statute. First, it requires an adequate 

showing of “total abstinence,” among other things, prior to reinstatement. There is no dispute in this case that 

“total” means everywhere and always, regardless of operation or attempted operation of a vehicle. Second, 

on such a showing, “the person’s license shall be reinstated immediately upon such conditions as the 

commissioner may impose.” There is no dispute that the statutory regime is completely silent as to what any 

such conditions ought to be. And third, if the person is later found to have been “operating, attempting to 

operate or in actual physical control of a vehicle while the person’s alcohol concentration was 0.02 or more 

following reinstatement under this subsection, the person’s operating license or privilege to operate shall be 

immediately suspended for the period of the original suspension.”

Thus, on its face, it appears to require abstinence to support reinstatement, and it then subjects the 

reinstated driver to a more than normally restrictive blood–alcohol concentration (BAC) limit in the event of 

any subsequent operation or attempted operation after consumption for re-suspension purposes. The statute 

evinces no intent to police such an operator’s private life after reinstatement with regard to the consumption 

of alcohol or drugs but for as that consumption relates to operation.

The State argues that the plain meaning of “upon such conditions as the commissioner may impose” 

permits the total abstinence condition imposed in this case. It further argues that the portion of the statute 
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requiring operation or control with a BAC of .02 to warrant reimposition of the prior suspension merely sets a 

uniform maximum BAC condition on reimposition that applies in all cases, leaving the Commissioner free to set 

a more stringent BAC or other condition, implying that the legislature was concerned that the Commissioner 

otherwise might have reinstated a license and imposed an intolerably libertine BAC condition.

The State’s argument that the meaning of this statute is plain on its face, and thus must be enforced 

according to that plain language, is circular and chimerical. The meaning of the Commissioner’s authority to 

issue conditions in this statute is far from “plain” because it is a completely standardless delegation of 

unrestrained authority and thus is maximally vague, and the Commissioner has exercised that unlimited 

discretion to render part of the express language of the statute pointless. See Chittenden County Sheriff’s 

Dept. v. Dept. of Lab., 2020 VT 4, ¶ 16, 211 Vt. 377 (“To withstand the charge of unconstitutional delegation of 

legislative power, the statute must establish reasonable standards to govern the achievement of its purpose 

and the execution of the power which it confers.”). In so many words the State admits this. See State’s 

Memorandum in Opposition at 12 (“Although the plain language of the statute places no express constraints 

on the Commissioner’s discretion, such discretion admittedly cannot be limitless.”). There is no telling from 

the face of § 1209a(b) or the statutory scheme more generally, however, what sort of conditions the 

legislature may have had in mind. However, that it did not intend a condition that completely undermined an 

issue it had spoken to directly—the standard for reimposition of suspension—is clear enough on the face of 

the statute and still more so when viewed in historical context.

As relevant here, the obligation to reinstate a suspended license dates to 1981. The law in 1981 

included various suspension lengths and various opportunities for reinstatements, including for a life 

suspension (then only imposed on a fourth conviction). It generally provided that reinstatements would be 

“upon such conditions as the commissioner may impose” without providing guidance as to any such 

conditions. 1981, No. 103, §§ 6, 8. It included no process whatsoever for reimposing the prior suspension of a 

subsequently reinstated license, and it thus did not contemplate any condition setting a controlling standard 

for such a process, including for abstinence reinstatements. See 23 V.S.A. § 1208(g) (1981).1 Instead, a 

reinstated license was simply reinstated, and the operator was subject to the generally applicable DUI laws and 

thus may suffer a new suspension in the event of any new violation of 23 V.S.A. § 1201.

In 1989, the legislature added a process and standard applicable to the reimposition of a prior 

suspension. 1989, No. 63, § 6. It provided:

If after notice and hearing the commissioner later finds that the person was operating, 

attempting to operate or in actual physical control of a vehicle while there was any amount of 

alcohol in the blood following reinstatement under this subsection, the person’s operating 

license or privilege to operate shall be immediately suspended for the period of the original 

suspension. 

1

 This is true of the prior regime as well. V.S. 1947, § 10,288.
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23 V.S.A. § 1209a(b) (1989) (emphasis added). Thus, in 1989 an ordinary reinstated operator became subject 

to a re-suspension process contingent on a .00 BAC standard pursuant to § 1209a(b) rather than the generally 

applicable .10 BAC under § 1201(a)(1) (1989) for any new suspension.

In 2004, the legislature modified this language to subject reinstated operators to a .02 BAC:

If after notice and hearing the commissioner later finds that the person was operating, 

attempting to operate or in actual physical control of a vehicle while the person’s alcohol 

concentration was 0.02 or more following reinstatement under this subsection, the person’s 

operating license or privilege to operate shall be immediately suspended for the period of the 

original suspension.

2004, No. 107, § 7; 23 V.S.A. § 1209a(b) (2004) (emphasis added). By then, the generally applicable BAC for 

DUI purposes had dropped to .08.

It was not until 2009 that the legislature reversed course, deleted the .02 reimposition standard, and 

imposed an express total abstinence condition on all reinstatements disconnected from operation. 2009, No. 

23, § 1. Although Act 23 is labeled “An act relating to clarifying the procedure for reinstatement of a driver’s 

license based on total abstinence from alcohol and drugs,” and it does clarify procedure, it also clearly changes 

the substantive reimposition standard of its precursor. As noted, this 2009 amendment does not apply in this 

case, and the State does not argue that it applies retroactively.

The State asks the court to defer to the Commissioner’s interpretation of his authority to issue 

conditions under the 2004 version of § 1209a applicable here. Generally, the court will defer to an agency’s 

reasonable interpretation of a statute that it implements when the legislature left an ambiguity in the 

statutory language that the agency has the power to resolve. However, “[i]f a court, employing traditional 

tools of statutory construction, ascertains that [the legislature] had an intention on the precise question at 

issue, that intention is the law and must be given effect.” Levine v. Wyeth, 2006 VT 107, ¶ 31, 183 Vt. 76 

(2009). This is the case here. The “authority in an administrative department cannot arise through 

implication. An explicit grant of authority is required.” Miner v. Chater, 137 Vt. 330, 333 (1979).

The State, in effect, is urging the court to allow the Commissioner to employ a standardless delegation 

of authority to impose conditions, which it admits purports to give the Commissioner unlimited discretion, to 

ignore and replace statutory language specifically addressing the subject matter at issue—the standard for 

reimposition of a suspension. No legitimate principle of administrative deference countenances such a 

usurpation of legislative power by an agency. Rather, the statute and legislative history are clear that in 1981 

the statutory regime did not contemplate reimpositions of prior suspensions at all. In 1989, reimposition was 

required upon operation after consumption of “any amount” of alcohol, a .00 BAC. And in the 2004 version 

applicable here, reimposition was liberalized up to a .02 BAC. The “total abstinence” condition imposed 
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here—insofar as it was used here to supersede the .02 BAC reimposition standard—squarely violated § 

1209a(b). The State’s argument that the condition was a reasonable exercise the of the Commissioner’s 

unlimited authority misses the point. Regardless of reasonableness, the authority never existed. To the extent 

that the delegation of authority successfully gave the Commissioner any authority to issue conditions, those 

conditions had to be consistent with the statute’s express requirements.

The 2009 hearing examiner had no authority to impose the total abstinence condition and doing so 

was an invalid and arbitrary abuse of power. 

Whether the condition may be collaterally attacked now

An administrative adjudication that was sufficiently judicial in nature and offered a sufficient 

opportunity to litigate can have res judicata effect and thus not be subject to collateral attack. However, for 

good reason, “res judicata does not apply to administrative proceedings as an inflexible rule of law” as it 

typically does with the judgments of courts. Application of Carrier, 155 Vt. 152, 157 (1990); accord ChiltonBelloni v. Angle for City of Staunton, 806 S.E.2d 129, 134 (Va. 2017) (“Res judicata of administrative decisions is 

not encrusted with the rigid finality that characterizes the precept in judicial proceedings.” (citation omitted)); 

Application of N. States Power Co., 440 N.W.2d 138, 142 (Minn. Ct. App. 1989) (“[A]dministrative res judicata 

‘must be tempered by fairness and equity.’” (citation omitted)); 2 Admin. L. & Prac. § 5:87 (3d ed.) (“Res 

judicata does not apply to administrative decisions with the rigidity that characterizes judicial proceedings.”). 

For several reasons, the court believes that the hearing examiner’s 2009 decision is properly subject to 

collateral attack now.

Regarding the judicial nature of the proceeding, the Vermont Supreme Court has adopted 

Restatement (Second) of Judgments § 83. See Delozier v. State, 160 Vt. 426, 429 (1993). Section 83 describes 

the “essential elements of adjudication” as follows:

(a) Adequate notice to persons who are to be bound by the adjudication, as stated in § 2;

(b) The right on behalf of a party to present evidence and legal argument in support of the 

party’s contentions and fair opportunity to rebut evidence and argument by opposing parties;

(c) A formulation of issues of law and fact in terms of the application of rules with respect to 

specified parties concerning a specific transaction, situation, or status, or a specific series 

thereof;

(d) A rule of finality, specifying a point in the proceeding when presentations are terminated 

and a final decision is rendered; and

(e) Such other procedural elements as may be necessary to constitute the proceeding a 

sufficient means of conclusively determining the matter in question, having regard for the 

magnitude and complexity of the matter in question, the urgency with which the matter must 
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be resolved, and the opportunity of the parties to obtain evidence and formulate legal 

contentions.

Restatement (Second) of Judgments § 83(2). 

The hearing examiner in the decision on appeal took pains to emphasize that Mr. O’Connor was 

repeatedly told of the total abstinence condition before, during, and after his reinstatement hearing. The issue 

clearly was presented to Mr. O’Connor, who was pro se at the reinstatement hearing, as a statutorily required 

inevitability, a natural component of the thing he was applying for. It was not presented as something 

discretionary that was requested by an adversary, and the need for it and its breadth were not open for 

debate at the hearing.

The hearing examiner then in fact gave Mr. O’Connor the reinstatement that he sought. He did so 

without notifying Mr. O’Connor, either in the reinstatement decision or the cover letter attached to it, that he 

could appeal. It is manifestly reasonable in these circumstances that a person in Mr. O’Connor’s 

circumstances, having been given the very thing he was applying for and having been led to believe that part of 

what he was applying for in fact was the total abstinence condition, would perceive no interest in appealing 

generally and specifically would have had no fair chance of understanding that he could have appealed solely 

to challenge the total abstinence condition without otherwise disturbing the rest of the Commissioner’s 

decision. The constant emphasis on the inevitability of the total abstinence condition essentially removed the 

condition from the scope of the hearing and would have seduced any ordinary person into failing to appeal. 

Under subsections (b), (c), and (e), the proceeding did not give Mr. O’Connor a fair opportunity to litigate the 

issue of the condition, whether at the hearing or on appeal.

Even if Mr. O’Connor had tried to raise the issue, it is not clear that the hearing examiner would have 

been prepared to adjudicate that issue. “The policies favoring finality over validity presuppose that fair

opportunity [was] available to contest subject matter jurisdiction” in the earlier tribunal and that the 

decisionmaker was capable of deciding such an issue “on an adequately informed basis.” Restatement 

(Second) of Judgments § 12 cmt. e. There is little in the record to indicate that the hearing examiner in this 

case had appropriate legal training to make such a decision or that he would have perceived his role to 

encompass making a neutral decision on the matter. He merely imposed the condition as a matter of policy on 

a dubious basis, the Commissioner’s standardless authority to impose conditions.

Compounding all this is that there apparently were no procedural rules for the hearing at all and little 

indication that the hearing examiner did anything to help facilitate a fair presentation of the issues. By statute, 

the procedural protections required in most other types of contested cases “shall not apply to any and all acts, 

decisions, findings, or determinations by the Commissioner of Motor Vehicles or his or her duly authorized 

agents or to any and all procedures or hearings before and by him or her, or his or her agents.” 3 V.S.A. § 

816(b). Nothing in the record indicates that Mr. O’Connor’s hearing was operated according to any clear set of 

procedures of which he may have been informed in advance at all.
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The court also recognizes that the imposition of the total abstinence condition was clearly 

unauthorized by statute and was ultra vires—entirely invalid when issued. The U.S. Supreme Court has 

explained:

A court’s power to decide a case is independent of whether its decision is correct, which is why 

even an erroneous judgment is entitled to res judicata effect. Put differently, a jurisdictionally 

proper but substantively incorrect judicial decision is not ultra vires.

That is not so for agencies charged with administering congressional statutes. Both 

their power to act and how they are to act is authoritatively prescribed by Congress, so that 

when they act improperly, no less than when they act beyond their jurisdiction, what they do 

is ultra vires. Because the question—whether framed as an incorrect application of agency 

authority or an assertion of authority not conferred—is always whether the agency has gone 

beyond what Congress has permitted it to do, there is no principled basis for carving out some 

arbitrary subset of such claims as “jurisdictional.”

City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297–98 (2013). In this case, the Commissioner had no authority 

to impose the total abstinence condition and doing so was not merely collateral to or consistent with the 

statutory regime. Instead, it squarely undermined an issue the legislature had spoken to expressly. 

The hearing officer’s imposition of the total abstinence condition in this case was a manifest abuse of 

authority and subject to collateral attack. See Restatement (Second) of Judgments § 12(1). It is unnecessary 

to address the other issues raised by the parties.

Order

For the foregoing reasons, the hearing officer’s decision is reversed. This case is remanded to the 

Commissioner to return Mr. O’Connor’s driver’s license to reinstated status.

Electronically signed on 6/30/2021 8:45 AM, pursuant to V.R.E.F. 9(d)