In the Matter of Caralyn A. Matsen, Appellant,v.New York State Department of Motor Vehicles, et al., Respondent.BriefN.Y.March 23, 2017To Be Argued By: Time Requested: STATE OF NEW YORK COURT OF APPEALS * * * * * * * * * * * * * * * * * * * In the Matter of CARALYN A. MATSEN, Petitioner-Appellant, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et a2., Respondents-Respondents. * * * * * * * * * * * * * * * * * * * Eric H. Sills, Esq. 20 Minutes APL-2016-00054 Index No. 2767-13 PETITIONER-APPELLANT'S BRIEF Respectfully submitted, GERSTENZANG, SILLS & GERSTENZANG Attorneys for Petitioner-Appellant (Eric H. Sills, Esq., of Counsel) 210 Great Oaks Boulevard Albany, New York 12203 Tel: (518) 456-6456 Fax: (518) 456-6056 Date completed: June 20, 2016 STATEMENT PURSUANT TO 22 NYCRR § 500.13(a) Pursuant to 22 NYCRR § 500.13(a), "[e]ach brief shall indicate the status of any related litigation as of the date the brief is completed. Such statement shall be included before the table of contents in each party's brief." The instant case is related to Matter of Acevedo v. New York State Dep't of Motor Vehicles, Index No. 2393-13 (APL-2015-00248), and Matter of Carney v. New York State Dep't of Motor Vehicles, Index No. 4866-13 (APL-2016-00021). See also Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112 (3d Dep't 2015); Matter of Carney v. New York State Dep't of Motor Vehicles, 133 A.D. 3d 1150 (3d Dep't 2015). Petitioner's and Respondents' counsel in the instant case also represent the Petitioners and Respondents in Acevedo and Carney. i TABLE OF CONTENTS TABLE OF AUTHORITIES . iv QUESTIONS PRESENTED xiii FACTS .. POINT I RESPONDENTS' NEW RECIDIVIST DWI OFFENDER REGULATIONS ARE IN SIGNIFICANT RESPECTS ARBITRARY AND CAPRICIOUS . . . . . . . . POINT II RESPONDENTS' NEW RECIDIVIST DWI OFFENDER REGULATIONS CONSTITUTE ILLEGAL POLICYMAKING 1 5 AS OPPOSED TO LAWFUL RULEMAKING . . . . . . . . . 12 1. Respondents' reliance on decades-old general delegations of authority as authorization for the Regulations is without merit . . . . . . . . . . . .... 14 2. The Regulations violate Boreali v. Axelrod . . . . . . . . . . . . . . . . 18 3. The Regulations ignore and supersede the Legislature's comprehensive recidivist DWI offender policy . . . ... 24 4. Respondents' flagrant disregard of VTL § 1193 (2) (b) (12) is epitomized by new regulation 15 NYCRR § 136.10(b) .... 32 5. New regulation 15 NYCRR § 136.5 renders every single provision of VTL § 1193 (2) (b) (12) ineffective .... 35 6. The Regulations violate the rule that a prior general statute yields to a more recent specific statute covering the same subject matter . . . . . . . . . 3 7 7. The Regulations violate the doctrine of legislative acquiescence . . . . . . . .. 39 ii TABLE OF CONTENTS (Con' t) 8. The decision of the Appellate Division maiority cannot be reconciled with a series of DWI-related decisions issued by this Court ................ 41 9. The new 25-year look-back period constitutes illegal policymaking, conflicts with existing statutes and is otherwise ultra vires ......... 46 10. No special expertise or technical competence was involved in the development of the Regulations ...... 49 11. The Appellate Division dissent is clearly correct . . . . . . 50 POINT III RESPONDENTS ACTED ILLEGALLY IN APPLYING THE NEW REGULATIONS RETROACTIVELY TO PETITIONER . . . . 52 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 54 iii TABLE OF AUTHORITIES NEW YORK STATE CONSTITUTION Article III, § 1 . . . . . . . 12 CASES UNITED STATES SUPREME COURT Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) . . . . 52 UNITED STATES COURT OF APPEALS Holmes v. New York City Hous. Auth., 398 F.2d 262 (2d Cir. 1968) . . . . . . . . . . . . ..... 17 NEW YORK STATE COURT OF APPEALS Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ii, 18-20, 23-26, 34, 44-45, 49-51 Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600 (2015) . 18, 24, 39 Matter of Acevedo v. New York State Dep't of Motor Vehicles, Index No. 2393-13 (APL-2015-00248) i, 11 Matter of Brusco v. Braun, 84 N.Y.2d 674 (1994) 38 Matter of Carney v. New York State Dep't of Motor Vehicles, Index No. 4866-13 (APL-2016-00021) Matter of Dutchess County Dep't of Social Servs. v. Day, 96 N.Y.2d 149 (2001) ....... . Matter of Francois v. Dolan, 95 N.Y.2d 33 (2000) Matter of Kuppersmith v. Dowling, 93 N.Y.2d 90 (1999) Matter of New York State Ass'n of Counties v. Axelrod, 78 N.Y.2d 158 (1991) . . . . ... Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979) iv i, 11 37 37 5 5 25 TABLE OF AUTHORITIES (Con' t) Matter of N.Y. Pub. Interest Research Group v. New York State Dep't of Ins., 66 N.Y.2d 444 (1985) Matter of NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, 27 N.Y.3d 174 (2016) ..... Matter of Wignall v. Fletcher, 303 N.Y. 435 (1952) New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep't of Health and Mental Hygiene, 23 N.Y.3d 681 (2014) Packer Collegiate Inst. v. University of State of N.Y., 298 N.Y. 184 (1948) People v. Ballman, 15 N.Y. 3d 68 (2010) People v. Letterlough, 86 N.Y. 2d 259 (1995) People v. Lit to, 8 N.Y.3d 692 (2007) People v. Moselle, 57 N.Y. 2d 97 (1982) People v. Prescott, 95 N.Y. 2d 655 (2001) People v. Rivera, 16 N.Y.3d 654 (2011) People v. Zephrin, 14 N.Y.3d 296 (2010) APPELLATE DIVISION, SECOND DEPARTMENT Peoole v. Litto, 33 A.D.3d 625 (2d Dep't 2006), . 39 12, 18-19, 22-24, 49 .. 34, 54 18-20, 34, 4 9' 51 25 41' 43 34, 41, 43 39' 41, 43 42 16, 41-43 41, 43 37 aff'd, 8 N.Y.3d 692 (2007) ............... 36 APPELLATE DIVISION, THIRD DEPARTMENT Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112 (3d Dep't 2015) Matter of Carney v. New York State Dep't of Motor Vehicles, 133 A.D.3d 1150 (3d Dep't 2015) v i 1 91 13, 23 i, 13, 23 TABLE OF AUTHORITIES (Con' t) Matter of Linsley v. Gallman, 38 A.D.2d 367 (3d Dep't 1972), aff'd on opinion below, 33 N.Y.2d 863 (1973) . . . . . ... . . . . . . 52 Matter of NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, 125 A.D.3d 105 (3d Dep't 2014), aff'd, 27 N.Y.3d 174 (2016) ........ . APPELLATE DIVISION, FOURTH DEPARTMENT Matter of Dahlgren v. New York State Dep't of Motor 22-23 Vehicles, 124 A.D.3d 1400 (4th Dep't 2015) ....... 46 STATUTES CIVIL PRACTICE LAW AND RULES ("CPLR") CPLR Article 78 .. CORRECTION LAW Correction Law Article 23 . . . . . . . . CPL § 720.35(2) . PL § 65.10 PL § 120.04(3) PL § 120.04-a(3) PL § 125.13(3) PL § 125.14(3) CRIMINAL PROCEDURE LAW ( "CPL" ) PENAL LAW ("PL") vi 4 28-29 9 41 47 47 47 47 TABLE OF AUTHORITIES (Con' t) Page VEHICLE AND TRAFFIC LAW ("VTL") VTL Article 31 42-43 VTL § 214 14 VTL § 215 14 VTL § 215(a) 14, 17 VTL § 215(c) 14 VTL § 501 . 14 VTL § 501 (2) (c) 14, 17 VTL § 510 . . 15 VTL § 510 (2) (a) (iv) 47 VTL § 510 (3) (a) 15 VTL § 510 (5) 15 VTL § 510(6) 14-15, 17 VTL § 510 (6) (a) 15 VTL § 510 (6) (d) 15 VTL § 510(6)(h) 15 VTL § 511 . . 27, 29' 32-33 VTL § 511 (3) (a.k.a. AUO 1st) 7-11, 41 VTL § 513 . . 9 VTL § 513(b) 9 VTL § 520 . 10, 2 6' 49 VTL § 523-a 2 6, 49 VTL § 600(2) 7 vii TABLE OF AUTHORITIES (Con' t) Page VTL § 600 (2) (c) . . . . 8 VTL § 1192 . . 9, 15' 27-29, 32-33, 36, 42-43 VTL § 1192 (1) (a.k.a. DWAI) . . . . . 2, 48 VTL § 1192(2-a) (a.k.a. Aggravated DWI) 10 VTL § 1192 (3) (a. k.a. DWI) 41 VTL § 1192 (8) 41 VTL §§ 1192-99 42 VTL § 1192-a (a.k.a. Zero Tolerance law) 2, 10 VTL § 1193 15-16, 43 VTL § 1193 (1) (a) 46-47 VTL § 1193 (1) (b) (ii) 10 VTL § 1193 (1) (c) (i) 47 VTL § 1193 (1) (c) (ii) 47 VTL § 1193 (1) (c) (ii-a) (a.k.a. Vince's law) 48 VTL § 1193 (1) (c) (iii) 10 VTL § 1193 (2) (b) (1) 47 VTL § 1193 (2) (b) (1-a) 47 VTL § 1193 (2) (b) (3) 1, 47 VTL § 1193 (2) (b) ( 6) 10 VTL § 1193 (2) (b) (7) 10 VTL § 1193 (2) (b) (8) 10 VTL § 1193 (2) (b) (12) ii, 12, 14, 16-17, 26-27, 30-32, 34-40, 45, 49 viii TABLE OF AUTHORITIES (Con' t) Page VTL § 1193 (2) (b) (12) (a) . 27, 32, 35' 47 VTL § 1193 (2) (b) (12) (a) (i) 35 VTL § 1193 (2) (b) (12) (a) (ii) 35 VTL § 1193 (2) (b) (12) (b) 27' 32-33, 35 VTL § 1193 (2) (b) (12) (c) 28, 36 VTL § 1193 (2) (b) (12) (d) 28' 30, 36, 47 VTL § 1193 (2) (b) (12) (e) 29-30, 32, 36 VTL § 1193 (2) (b) (12) (f) 29 VTL § 1193 (2) (c) (1) 14, 16-17, 37-38, 40 VTL § 1193 (2) (c) (2) 10 VTL § 1193 (2) (c) (3) 13, 36 VTL § 1193 (2) (e) (4) . 9-10 VTL § 1194 . . . 15, 27, 2 9' 32-33, 42-43 VTL § 1194 (2) (d) (1) 14, 16, 47 VTL § 1195 43 VTL § 1196 26, 43, 49 VTL § 1196 (4) 10 VTL § 1196 (7) (f) 41 VTL § 1197 43 VTL § 1198 43 VTL § 1198 (3) (a} 36 VTL § 1198-a 43 ix TABLE OF AUTHORITIES (Con' t) Page VTL § 1199 43 VTL § 1809 (10) 10 VTL § 1809-c(4) 10 REGULATIONS 15 NYCRR § 131.3 . 3, 6 15 NYCRR § 131.3 (b) (3) (i) 3 15 NYCRR § 131.3 (b) (4) (iii) 3 15 NYCRR § 131.3 (b) (5) (i) . 3 15 NYCRR § 134.7 (a) (11) (i) 36 15 NYCRR § 136.4 32 15 NYCRR § 136.5 ii, 32, 35 15 NYCRR § 136.5(a) 2 15 NYCRR § 136.5 (a) (1) 9 15 NYCRR § 136.5 (a) (1) (ii) 10 15 NYCRR § 136.5(a) (2) 2, 6, 7 15 NYCRR § 136.5(a) (2) (ii) 8 15 NYCRR § 136.5 (a) (2) (iii) 3 15 NYCRR § 136.5 (a) (3) 46 15 NYCRR § 136.5(b) . 5 15 NYCRR § 136.5 (b) (1) 30, 36 15 NYCRR § 136.5(b) (2) 2, 3, 7, 30, 35, 50 15 NYCRR § 136.5 (b) (3) 3, 7, 33, 35, 50 15 NYCRR § 136.10(b) . . ii, 32-34 X TABLE OF AUTHORITIES (Con' t) Page 22 NYCRR § 500.13(a) i 22 NYCRR § 500.14 . 1 OTHER L.l988, c. 47, § 9 15 L.2006, c. 732, § 26 26 2011 New York Assembly Bill No. 8934-B 44 2013 New York Assembly Bill No. 58 6, § 5 44 2013 New York Assembly Bill No. 1933, § 2 44 2013 New York Assembly Bill No. 1997 44 2013 New York Assembly Bill No. 2279, § 1 44 2013 New York Assembly Bill No. 3347, § 3 44 2013 New York Assembly Bill No. 4346, § 4 44 2013 New York Assembly Bill No. 5774, § 2 44 2013 New York Assembly Bill No. 5775, §§ 2 & 3 44 2011 New York Senate Bill No. 6496 44 2013 New York Senate Bill No. 739, §§ 1 & 2 44 2013 New York Senate Bill No. 4267 48 2013 New York Senate Bill No. 6287, § 2 44 2013 New York Senate Bill No. 6355, § 2 44 2013 New York Senate Bill No. 6355, § 3 44 2013 New York Senate Bill No. 717 5, § 1 44 Gerstenzang & Sills, Handling the DWI Case in New York (2015-16 ed.), Appendix 53 . . . . . . 1 xi McKinney's Cons. Laws TABLE OF AUTHORITIES (Con't) of N.Y., Book 1, Statutes ("McKinney's Statutes") § 3 (d) McKinney's Statutes § 97 McKinney's Statutes § 98 McKinney's Statutes § 144 McKinney's Statutes § 397 xii Page 24 38, 43 36, 38 36, 38 37-38 QUESTIONS PRESENTED 1. Are Respondents' new recidivist DWI offender regulations arbitrary and capricious? 2. Do Respondents' new recidivist DWI offender regulations constitute illegal policymaking as opposed to lawful rulemaking? 3. Did Respondents act illegally in applying the new regulations retroactively to Petitioner? xiii FACTS Petitioner, Caralyn A. Matsen, accumulated 3 DWI-related convictions between 2000 and 2010 (arising out of offenses that occurred between 1999 and 2009) (R. 52, 128, 195-96, 202-03) . 1 This resulted in Petitioner's driver's license being revoked for a minimum of 1 year. 2 On the date of each of Petitioner's guilty pleas, Respondent New York State Department of Motor Vehicles ("DMV") had in place a well-known policy for restoring driver's licenses following DWI-related license revocations that had been in effect since at least January of 1986 (R. 51, 114-15) . 3 Petitioner applied for relicensure in June of 2012 (R. 53). Petitioner was eligible for relicensure under the statutes, regulations and DMV policies that were in effect both (a) on the date of Petitioner's most recent DWI-related conviction, and (b) on the date that Petitioner applied for relicensure (R. 54). However, in February of 2012 Respondents stopped processing the license applications of recidivist DWI offenders (R. 51, 116). The purpose of the delay was to prevent these people from being relicensed while draconian new regulations were being drafted -- so that the (as yet non-existent) regulations could subsequently be retroactively applied to them (R. 51, 116). 1 Numbers in parentheses preceded by an "R." refer to the numbered pages of the Record on Appeal. Pages starting at (R. 440) were added to the Record pursuant to 22 NYCRR § 500.14. 2 See VTL § 1193 (2) (b) (3). 3 See also Gerstenzang & Sills 1 Handling the DWI Case in New York (2015-16 ed.), Appendix 53 ("Letter from Department of Motor Vehicles Regarding Multiple Offenders") (same) . 1 The new DMV regulations (hereinafter "the Regulations") were made public, and took effect, on September 25, 2012 (R. 51, 160) . On November 1, 2012, Petitioner's application for relicensure was denied pursuant to the Regulations (R. 127-28). The text of the Regulations is set forth at (R. 117-26). The Regulations that directly impact Petitioner are 15 NYCRR §§ 136.5 (a) and 136.5 (b) (2) (R. 123-24). Pursuant thereto, the longstanding DMV policy of full license restoration after 18 months' was replaced by a policy pursuant to which Petitioner's driver's license will never be reinstated. In this regard, new regulation 15 NYCRR § 136.5(b) (2) provides as follows: (b) 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: * * * (2) the person has [3] or [4] alcohol- or drug-related driving convictions or incidents 5 in any combination within the 25 year look back period and, in addition, has [1] or more serious driving offenses within the 25 year look back period, then the Commissioner shall deny the application. (Emphasis added) (footnote added) . See also (R. 124) . 6 Pursuant to new regulation 15 NYCRR § 136.5(a) (2), a "serious driving offense" is defined as: See (R. 114 I. 5 For purposes of this brief, the term "DWI-related conviction" refers to both DWI-related convictions (e.g., DWAI or DWI), and DWI-related incidents (e.g., chemical test refusal findings and Zero Tolerance law adjudications). 6 Notably, neither this regulation, nor any of the new Regulations, take rehabilitation into account. Nor does this regulation allow a person to drive -~ even for work, medical or emergency purposes -- ever again. 2 (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of [2] or more violations for which [5] or more points are assessed on a violator's driving record pursuant to Section 131.3 of this Title; or (iv) 20 or more points from any violations. Common offenses that carry 5 or more points are cell phone/ texting infractions (5 points),' and driving 21-30 MPH over the speed limit (6 points) . 8 Pursuant to new regulation 15 NYCRR § 136.5 (a) (2) (iii), Petitioner has committed a "serious driving offense." Specifically, Petitioner was convicted of two 6-point speeding infractions in 2004 (when she was 20 years old) . 9 Petitioner is currently 33 years old. Petitioner's first speeding charge was for driving 72 MPH in a 50 MPH zone (R. 128, 196, 203). If Petitioner had been charged with driving a mere 2 MPH slower (i.e., 70 MPH in a 50 MPH zone), then the charge would have only carried 4 points. 10 As a result, Petitioner would not have committed a "serious driving offense," and she would currently be granted a restricted use license.n Accordingly, a 2 MPH difference in a 12-year-old speeding ticket is the only reason why Petitioner's driver's license is being permanently revoked by Respondents. 7 See 15 NYCRR § 131.3 (b) (4) (iii). 8 See 15 NYCRR § 131.3(b) (3) (i). 9 See (R. 128' 192, 195-96, 199, 202-03). 10 See 15 NYCRR § 131.3(b) (5) (i). ll Compare 15 NYCRR § 136.5(b) (2) with 15 NYCRR § 136.5(b) (3). 3 Petitioner applied for an ''unusual, extenuating and compelling circumstances" waiver (R. 181-82). The application was promptly and summarily denied (R. 179-80). Petitioner timely appealed the denial of her application for relicensure to Respondents' Appeals Board (R. 129-56). Petitioner's administrative appeal was denied (R. 157-61). Petitioner thereafter timely filed the instant hybrid Article 78 proceeding/declaratory judgment action challenging both the lawfulness of the Regulations as well as the lawfulness of applying the Regulations retroactively to her application for relicensure (R. 46-166). In a Decision/Order/Judgment dated June 3, 2014, Supreme Court denied Petitioner's Petition in its entirety (R. 6-44). Petitioner appealed to the Appellate Division, Third Department, raising the same issues that she has raised throughout this case. In a 3-1 decision, the Appellate Division affirmed (R. 444-52). Petitioner filed a motion for reargument or, in the alternative, for leave to appeal to the Court of Appeals. The motion for reargument was denied, but the motion for leave to appeal to the Court of Appeals was granted (R. 443) . This appeal followed. 4 POINT I RESPONDENTS' NEW RECIDIVIST DWI OFFENDER REGULATIONS ARE IN SIGNIFICANT RESPECTS ARBITRARY AND CAPRICIOUS This Court has made clear that "administrative rules are not judicially approved in a pro forma manner. Courts must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case.'' Matter of Kuppersmith v. Dowling, 93 N.Y.2d 90, 96 (1999) (citation omitted). See also Matter of New York State Ass'n of Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991) (same). The new Regulations do not withstand scrutiny under this standard. Pursuant to the Regulations, motorists who accumulate either 5 DWI-related convictions within their entire lifetimes, or 3 or 4 DWI-related convictions and a "serious driving offense" within 25 years, will have their driver's licenses permanently revoked; whereas motorists who accumulate 3 or 4 DWI-related convictions but have not been convicted of a ''serious driving offense" within 25 years will have their licenses revoked for 5 years longer than the statutory revocation period. 12 See 15 NYCRR § 136.5(b). Thus, a "serious driving offense'': (a) (b) (c) 12 13 is treated the same as a 5th DWI-related conviction; is treated far more seriously than a 4th-related DWI conviction; and transforms an approximately 6-year license revocation13 into a permanent, lifetime revocation. Followed by 5 more years on a restricted license. Followed by 5 more years on a restricted license. 5 In the case of a 33-year-old woman, like Petitioner, a "serious driving offense" likely adds somewhere in the vicinity of 50 years to the extra 5-year revocation that would otherwise be imposed by the Regulations. This raises the question: What types of driving offenses do Respondents deem to be so "serious" that they justify turning an already punitive revocation period into the driver's license equivalent of a death sentence? As is noted above, the answer is set forth at 15 NYCRR § 136.5(a) (2), which defines ''serious driving offense" as, among other things, "conviction of [2] or more violations for which [5] or more points are assessed on a violator's driving record pursuant to Section 131.3 of this Title.'' In other words, the Regulations define 2 cell phone, texting or 6-point speeding convictions (or any combination thereof) as a "serious driving offense." Since the Regulations: (a) define 2 cell phone, texting or 6-point speeding convictions as a ''serious driving offense"; and (b) treat 3 DWI-related convictions combined with a "serious driving offense" the same as 5 DWI-related convictions; the Regulations treat 2 cell phone, texting or 6-point speeding convictions the same as 4th and 5th DWI-related convictions. 14 This is neither reasonable nor rational. 14 It should be noted that in most parts of the State traffic tickets are handled in local criminal courts that both (a) allow plea bargaining, and (b) require proof beyond a reasonable doubt. By contrast, in large cities traffic infractions are handled in DMV Traffic Violations Bureaus ("TVBs") that (a) do not allow plea bargaining, and (b) do not require proof beyond a reasonable doubt. Thus, everything else being equal, it is far more likely that individuals who drive in areas where traffic infractions are adjudicated in TVBs will have a "serious driving offense" on their driving records. 6 In addition, pursuant to the Regulations 3 DWI-related convictions combined with two 5- or 6-point traffic infractions results in permanent license revocation, whereas 4 DWI-related convictions combined with one 5- or 6-point traffic infraction does not. Compare 15 NYCRR § 136.5(b) (2) with 15 NYCRR § 136.5(b) (3). Accordingly, pursuant to the Regulations a second cell phone, texting or speeding infraction can be far worse than a fourth DWI conviction. Such an unreasonable and irrational outcome is not merely an obscure hypothetical example. Rather, it is Petitioner's precise situation. In this regard, if one of Petitioner's two speeding convictions were, instead, a DWI-related conviction, then Petitioner would have 4 DWI-related convictions -- but she would no longer have a ''serious driving offense" -- and she would currently be granted a restricted use license (and would be granted a full, unrestricted driver's license in 5 years). See 15 NYCRR § 136.5 (b) (3). It is hard to imagine a regulation being more arbitrary or capricious. The arbitrariness of 15 NYCRR §§ 136.5 (a) (2) and 136.5 (b) (2) is even more striking when one considers various offenses that do not qualify as "serious driving offenses" thereunder, such as the driving-related felonies of aggravated unlicensed operation of a motor vehicle in the first degree ("AUO 1st"), see VTL § 511(3), and fleeing the scene of an accident resulting in serious physical injury. See VTL § 600(2). 7 A person commits the felony of AUO 1st by, inter alia, (a) committing a OWl-related offense while his or her driver's license is suspended/revoked for a prior DWI-related offense, or (b) driving with at least 10 suspensions in effect that were imposed on at least 10 separate dates. Fleeing the scene of an accident resulting in serious physical injury speaks for itself. No rational regulation defining the term "serious driving offense" would include two 5-point traffic infractions but omit truly serious driving offenses such as AUO 1st and fleeing the scene of an accident resulting in serious physical injury. In addressing this issue, the Appellate Division majority stated: We . . reject petitioner's additional argument that the definition of "serious driving offense" is arbitrary because it does not expressly include convictions for aggravated unlicensed operation of a motor vehicle in the first degree and leaving the scene of an accident resulting in serious physical injury, both of which are felonies (see Vehicle and Traffic Law§§ 511[3]; 600[2] [c]). While neither is expressly designated as a serious driving offense, both are covered by the definition thereof, as they are "driving-related Penal Law conviction[s]" (15 NYCRR 136.5 [a] [2] [ii]). (R. 448, footnote 3) (emphasis added). The highlighted statement is not accurate. New regulation 15 NYCRR § 136.5 (a) (2) (ii) clearly and expressly only applies to driving-related Penal Law convictions. See (R. 124). AUO 1st and leaving the scene of an accident resulting in serious physical injury are Vehicle and Traffic Law offenses . 15 15 Notably, Respondents have never disputed the assertion that AUO 1st and leaving the scene of an accident resulting in serious physical injury do not count for purposes of the Regulations. 8 - -------------------- The Regulations' definition of "alcohol- or drug-related driving conviction or incident," see 15 NYCRR § 136.5 (a) (1), is equally irrational as it fails to include DWI-related AUO 1st convictions and/or DWI-related youthful offender adjudications. Addressing this issue in the related case of Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112 (3d Dep't 2015), the Appellate Division majority stated: While a conviction for [AUO 1st] and a youthful offender adjudication of driving while intoxicated are excluded from the regulation's definition of alcohol- or drug-related driving conviction or incident, 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 [AUO 1st], and youthful offender adjudications "are confidential and may not be made available to any public . . agency" (CPL 720.35 [2]). Id. at 122 (emphasis added) (citations omitted). The highlighted statement is again not accurate. regard, VTL § 1193 (2) (e) (4) provides that: (4) Youthful offenders. Where a youth is determined to be a youthful offender, following a conviction of a violation of [VTL § 1192] for which a license suspension In this or revocation is mandatory, the court shall impose such suspension or revocation as is otherwise required upon conviction and, further, shall notify the commissioner of said suspension or revocation and its finding that said violator is granted youthful offender status as is required pursuant to [VTL § 513]. See also VTL § 513(b) ("Where a person has been granted youthful offender status, the certificate required by subdivision (a) of this section shall specify (i) whether such license . has been suspended or revoked, and if suspended, the period of such 9 suspension; if revoked, the time period within which no new license may be issued; (ii) the name and address of the person whose license ... has been revoked; and (iii) such other information as the commissioner may require by regulation"). In fact, Respondents' failure to include youthful offender adjudications in the definition of "alcohol- or drug-related driving conviction or incident" conflicts with every DWI-related statute addressing the issue. See, e.g., VTL §§ 1193(1) (b) (ii); 1193 (1) (c) (iii); 1193 (2) (b) (6); 1193 (2) (b) (7); 1193 (2) (b) (8); 1193(2) (c) (2); 1193(2) (e) (4); 1196(4); 1809(10); 1809-c(4); 520. Notably, if there is a rational basis for having omitted OWl- related youthful offender adjudications from the definition of "alcohol- or drug-related driving conviction or incident," then there is no rational basis for having included VTL § 1192-a (a.k.a. Zero Tolerance law) adjudications in the definition. See 15 NYCRR § 136.5(a) (1) (ii). By omitting youthful offender adjudications while including Zero Tolerance law adjudications, Respondents have created a situation in which a person who is eligible for youthful offender treatment is better off driving with a blood alcohol concentration ("BAC") of .25% and being charged with Aggravated DWI than driving with a BAC of .02% and being charged with violating the Zero Tolerance law. In addition, the fact that not all AUO 1st offenses are DWI-related does not excuse Respondents' failure to include DWI-related AUO 1st convictions within the definition of "alcohol- or drug-related driving conviction or incident." 10 In sum, regulations which, among other things: (a) treat Petitioner's second 6-point speeding conviction the same as a 5th DWI conviction; (b) would result in the immediate granting of a restricted license to Petitioner if one of her 6-point speeding convictions were instead a 4th DWI conviction; (c) create a situation in which a 2 MPH difference in a 12-year-old speeding ticket is the only reason why Petitioner is being revoked for life rather than being immediately granted a restricted license16 ; (d) in the related Carney case (Index No. 4866-13 (APL- 2016-00021)), permanently revoke the driver's license of a citizen who is a 1st offender in the eyes of every relevant statute enacted by the Legislature; (e) in the related Acevedo case (Index No. 2393-13 (APL-2015-00248)), impose a 6-year license revocation (followed by 5 more years on a restricted license) on a citizen who did not qualify for a 5-year ''permanent" revocation under the Legislature's detailed and comprehensive recidivist DWI offender statute; (f) do not consider the driving-related felonies of AUO 1st and fleeing the scene of an accident resulting in serious physical injury to be ''serious driving offenses"; and (g) do not consider DWI-related AUO 1st convictions or DWI-related youthful offender adjudications to be "alcohol- or drug-related driving convictions or incidents"; are neither reasonable nor rational. 17 16 While a line must be drawn somewhere, the issue is both one of reasonableness as well as one of who is authorized to draw the line in the first instance. Linedrawing decisions such as whether two 6-point speeding convictions (or 20 points) within 25 years are equivalent to (a) 4th and 5th DWI convictions, (b) fatal accidents, and (c) driving-related Penal Law convictions, are policyrnaking decisions for the Legislature to make. See Point II, infra. To the extent that Respondents claim that they have, in fact, been delegated unbridled discretion to make policymaking decisions of this type, such an unlimited delegation of power would itself be illegal. See Point II, § 3, infra. 17 The glaring deficiencies in the Regulations demonstrate that no special expertise or technical competence was involved in their development. See Point II, § 10, infra. · 11 POINT II RESPONDENTS' NEW RECIDIVIST DWI OFFENDER REGULATIONS CONSTITUTE ILLEGAL POLICYMAKING AS OPPOSED TO LAWFUL RULEMAKING Article III, § 1 of the New York State Constitution provides that "[t]he legislative power of this state shall be vested in the senate and assembly." This Court recently reiterated that "'"[t]he concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions."'" Matter of NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, 27 N.Y.3d 174, 178 (2016) (citations omitted). The Regulations target recidivist DWI offenders who have accumulated 3 or more DWI-related convictions. Critically, however, the Legislature has enacted a detailed and comprehensive recidivist DWI offender statute that targets the exact same group of people. See VTL § 1193 (2) (b) (12). A fatal problem with the Regulations is that thousands of motorists, like Petitioner, who do not qualify for recidivist DWI offender treatment under VTL § 1193(2) (b) (12) --and who thus do not qualify for a 5-year license revocation under New York's recidivist DWI offender statute -- nonetheless fall within the ambit of the Regulations and are having their driver's licenses permanently revoked. 12 As the dissenting Justices stated in the related case of Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D. 3d 112, 125 (3d Dep't 2015): "This consequence shows that the Commissioner has simply gone too far." See also Matter of Carney v. New York State Deo't of Motor Vehicles, 133 A.D.3d 1150, 1154 (3d Dep't 2015) (Lynch and Garry, JJ., dissenting) ("We respectfully dissent, essentially for the same reasons articulated in the dissent in [Acevedo] . The circumstances here are even more compelling") (citation and footnote omitted). Simply stated, in 2012 Respondents decided that the Legislature's recidivist DWI offender statute was not tough enough -- so they decided to ignore the statute and supersede it. In this regard, the Regulations create multiple new permanent, lifetime license revocations'' without one single change to any relevant statute. The Regulations are so obviously unauthorized by existing law that the press release accompanying their rollout expressly states both: (a) "Under current law, drivers who are convicted of multiple alcohol or drug related driving offenses cannot permanently lose their licenses"; and (b) "The only time a driver really faces losing a license permanently is when he or she has two alcohol or drug related convictions arising from separate crashes involving a physical injury. " 19 (R. 112). 18 See (R. 71-73). 19 See VTL § 1193(2) (c) (3). 13 1. Respondents' reliance on decades-old general delegations of authority as authorization for the Regulations is without merit. As a threshold matter, the question arises: Where does Respondents' purported authority to replace decades of stability and predictability in the enforcement of the DWI laws with a radical new recidivist DWI offender policy come from? The authority for the Regulations relevant to this case purportedly derives from VTL §§ 215 (a), 501 (2) (c), 510 (6), 1193 (2) (b) (12), 1193 (2) (c) (1) and 1194 (2) (d) (1). See (R. 122-24). These statutes will be addressed seriatim. VTL § 215(a) VTL § 215 (formerly VTL § 214) was enacted in 1960. There was an amendment to the statute in 1972 that is not readily accessible on Westlaw. A 2002 amendment added VTL § 215(c), and is thus irrelevant. VTL § 215(a) provides as follows: (a) General. Subject to and in conformity with the provisions of the vehicle and traffic law and the constitution and laws of the state, the commissioner may enact, amend and repeal rules and regulations which shall regulate and control the exercise of the powers of the department and the performance of the duties of officers, agents and other employees thereof. VTL § 501(2) (c) VTL § 501 was enacted in 1972. Amendments prior to 1986 are not readily accessible on Westlaw. There are no relevant amendments to VTL § 501(2) (c) between at least 1986 and today's date. VTL § 501(2) (c) provides, in pertinent part: 14 (c) Restrictions. Notwithstanding the foregoing provisions of this subdivision, the operation of vehicles may be limited by a restriction or restrictions placed on a license. In addition, the commissioner may by regulation provide for additional restrictions based upon . . other factors deemed appropriate by the commissioner. VTL § 510 (6) The language in VTL § 510(6) that Respondents rely upon as authorizing the Regulations is found in VTL § 510 ( 6) (a). This section, which was enacted in its present form in 1988, provides as follows: Where revocation is mandatory hereunder, no new license shall be issued for at least [6] months or, in certain cases a longer period as specified in this chapter, nor thereafter, except in the discretion of the commissioner of motor vehicles. Critically, however, on the same day and in the same section that VTL § 510(6) (a) was enacted (i.e., L.1988, c. 47, § 9), the Legislature enacted VTL § 510 (6) (d) (currently VTL § 510 (6) (h)), which provides that "[t]he provisions of this subdivision shall not apply to revocations issued pursuant to sections [1193] and [1194] of this chapter." DWI-related license revocations come from VTL §§ 1193 and 1194. In addition, VTL § 510 (3) (a) expressly provides that Respondents' discretionary authority to suspend or revoke a driver's license (or to deny a license to an unlicensed person) pursuant to VTL § 510 does not apply to violations of VTL § 1192 (i.e., to DWI-related offenses). Thus, Respondents' reliance on VTL § 510(6) (or VTL § 510(5)) is patently without merit. 15 VTL § 1193 (2) (b) (12) Respondents' claim that VTL § 1193 (2) (b) (12) authorizes the Regulations is also patently without merit. In fact, VTL § 1193(2) (b) (12) both (a) limits Respondents' discretion to enact their own recidivist DWI offender policy, and (b) demonstrates that the Regulations are illegal. See infra. VTL § 1193 (2) (c) (1) The relevant language of VTL § 1193(2) (c) (1) was enacted in 1988. A 1993 amendment changed the statute to its present form, but did not change the substance. VTL § 1193(2) (c) (1) provides as follows: (c) Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner. VTL § 1193 (2) (c) (1) in reality is the primary statute relied upon by Respondents. See People v. Prescott, 95 N.Y.2d 655, 661 (2001) ("the Legislature has made it clear that the courts must look to section 1193 for the appropriate penalties . . . for drunk driving offenses"). VTL § 1194 C2l (d) Ill VTL § 1194 (2) (d) (1), which was enacted in 1988, is similar to VTL § 1193 (2) (c) (1), only it applies to the less common situation where the license revocation was for refusal to submit to a chemical test rather than for a DWI-related conviction. 16 With the exception of VTL § 1193 (2) (b) (12), which is discussed at length below, every single statute relied upon by Respondents as authorization for the Regulations is decades old and extremely general. No relevant provision of any of these statutes has changed since at least 1988 (and, in the case of VTL §§ 215 (a) and 501 (2) (c), long before). Thus, Respondents' premise in enacting the Regulations is that decades-old, facially broad statutes such as VTL §§ 510(6) and 1193(2) (c) (1) grant them unlimited and plenary discretion in making decisions as to when, if ever, to reinstate driver's licenses that have been revoked. See. e.g., (R. 336-38). In addition, Respondents take the position that no one whose license is revoked for any reason has -- or has ever had -- a legitimate expectation of being relicensed, because statutes such as VTL §§ 510(6) and 1193(2) (c) (1) have always authorized them to change the rules at any time, and to apply the changes retroactively. A ruling in Respondents' favor would set an extremely dangerous precedent. It would mean that from now on DMV can change the rules at any time; which would mean that the rules in place at the time that a plea bargain is negotiated are meaningless. See generally Holmes v. New York City Hous. Auth., 398 F.2d 262, 265 (2d Cir. 1968) ("It hardly need be said that the existence of an absolute and uncontrolled discretion in an agency of government vested with the administration of a vast program . . would be an intolerable invitation to abuse"). 17 2. The Regulations violate Borea~i v. Axe~rod. This Court's seminal decision regarding the delegation of power to an administrative agency is Boreali v. Axelrod, 71 N.Y.2d 1 (1987). The Boreali Court identified four "coalescing circumstances" or "factors" that should be considered in deciding whether "the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed." Id. at 11. The first Boreali factor has been described in various ways, but the gist of it is whether ''the agency has built a regulatory scheme [based] on its 'own ideas of sound public policy.'" Id. at 12. See also New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep't of Health and Mental Hygiene, 23 N.Y.3d 681, 692 (2014) ("the first Boreali factor [relates] to whether the agency engaged in the balancing of competing concerns of public health and economic cost, thus acting on its own idea of sound public policy''); Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600, 610 (2015) ("The first factor is whether the agency did more than 'balanc[e] costs and benefits according to preexisting guidelines,' but instead made 'value judgments entail[ing] difficult and complex choices between broad policy goals' to resolve social problems") (citation omitted); NYC C.L.A.S.H., 27 N.Y.3d at 179-80, 181 (same). 18 ~~.-.. ~.~---------------------------------------------------------------------- The second Boreali factor is whether the agency "merely fill[ed] in the details of broad legislation describing the over-all policies to be implemented [or rather] wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance." Boreali, 71 N.Y.2d at 13. ''The second Boreali factor is fairly characterized as the tabula rasa consideration." NYC C.L.A.S.H., 27 N.Y.3d at 182. The third Boreali factor is whether "the agency acted in an area in which the Legislature had repeatedly tried -- and failed -- to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions." Boreali, 71 N.Y.2d at 13. ''The third Boreali factor may be cast as the consensus consideration." NYC C.L.A.S.H., 27 N.Y.3d at 183. The fourth Boreali factor is whether ''special expertise or technical competence in the [relevant field] was involved in the development of the . . regulations." Boreali, 71 N.Y.2d at 14. In Hispanic Chambers of Commerce, the Court recently stated: [W]e do not regard the four circumstances as discrete, necessary conditions that define improper policymaking by an agency, nor as criteria that should be rigidly applied in every case in which an agency is accused of crossing the line into legislative territory. Rather we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency has crossed that line. Consequently, respondents may not counter petitioners' argument merely by showing that one Boreali factor does not obtain. 23 N.Y.3d at 696-97. See also NYC C.L.A.S.H., 27 N.Y.3d at 180. 19 In essence, the primary issue in a case like this is whether the administrative agency is making value judgments and setting policy rather than merely implementing policy choices made by the Legislature. Hispanic Chambers of Commerce made clear that: Any Boreali analysis should center on the theme that "it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends." The focus must be on whether the challenged regulation attempts to resolve difficult social problems in this manner. That task, policymaking, is reserved to the legislative branch. * * * An agency that adopts a regulation . that interferes with commonplace daily activities preferred by large numbers of people must necessarily wrestle with complex value judgments concerning personal autonomy and economics. That is policymaking, not rulemaking. 23 N.Y.3d at 697, 699 (citation omitted). These five sentences are dispositive of this case. The issue of recidivist DWI offenders is an issue that (a) poses a difficult social problem, (b) requires the making of choices among competing ends, (c) interferes with commonplace daily activities preferred by large numbers of people (i.e., driving), and (d) wrestles with complex value judgments concerning personal autonomy and economics. Respondents' Regulations fall squarely within the ambit of Boreali. See, e.g., Boreali, 71 N.Y.2d at 13 ("Manifestly, it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends"); Hispanic Chambers of Commerce, 23 N.Y.3d at 697 (same). 20 I j Determinations as to, inter alia: (a) how many DWI-related convictions should result in a permanent, lifetime license revocation; (b) what the appropriate look-back period should be; (c) whether permanent, lifetime license revocation is preferable to a lengthy/permanent ignition interlock device requirement; (d) whether the inevitable increases in unlicensed and uninsured operation are wise policy choices; (e) whether a person should at least be permitted to drive to work, to the doctor, to the grocery store, etc.; (f) whether accommodations should be made for people who live alone or in rural areas; (g) what constitutes a "serious driving offense"; and/or (h) what criteria should be considered in determining whether to grant a waiver; are all policymaking decisions involving the making of value judgments. The line between administrative rulemaking and legislative policymaking has clearly been crossed. * * * * * * * * * * 21 The NYC C.L.A.S.H. case is readily distinguishable from the instant case. At issue in NYC C.L.A.S.H. was whether the Office of Parks, Recreation and Historic Preservation (''OPRHP") could lawfully enact a regulation that minimally inconveniences smokers in a small number of congested state parks and in other limited areas. Specifically: According to the record, OPRHP oversees 179 state parks, as well as 35 historic sites and other facilities, where it provides recreational opportunities and educational programming to more than 58 million annual visitors. The record reflects that the rule renders seven relatively small state parks in New York City smoke-free, subject to some limited exceptions. Other outdoor locations under the jurisdiction of OPRHP are subject to limited restrictions that OPRHP anticipates will result in the designation of less than five percent of the approximately 330,000 acres in the state park system as smoke-free. 27 N.Y.3d at 177. The impact on the lives of those affected by the regulation at issue in NYC C.L.A.S.H. is de minimis. The regulation affects less than 5% of the state park system, and, to the extent that it bans most smoking in 7 relatively small state parks in New York City, "smokers [can] easily exit the parks in order to access an area where smoking is permitted." Matter of NYC C.L.A.S.H., Inc. v. New York State Office of Parks, Recreation and Historic Preservation, 125 A.D.3d 105, 109 (3d Dep't 2014), aff'd, 27 N.Y.3d 174 (2016). The minor and temporary inconvenience caused by the regulation at issue in NYC C.L.A.S.H. cannot validly be compared to a permanent, lifetime ban on driving. 22 In addition, the NYC C.L.A.S.H. decision proceeded from the premise that a person's right to smoke whenever and wherever she wants is not limitless. 27 N.Y.3d at 176. Petitioner in the instant case is not claiming that she has a right to drive whenever and wherever (and in whatever condition) she wants. Rather, Petitioner's premise in this case is analogous to the Court's premise in NYC C.L.A.S.H., to wit: that Respondents' discretion in making relicensing decisions is not limitless. The Regulations at issue in this case permanently ban thousands of citizens from ever driving again, for any reason, for the rest of their lives. Permanent, lifetime driver's license revocation not only has a devastating and life-altering impact on the person whose driver's license is permanently revoked, but it also significantly impacts the person's family, friends, employers, etc. Unlike the NYC C.L.A.S.H. case, this case involves a true test of whether "the difficult-to-define line between administrative rule-making and legislative policy- making has been transgressed." Boreali, 71 N.Y.2d at 11. Notably, Justices Lynch and Garry were part of the unanimous Appellate Division decision in NYC C.L.A.S.H., whereas they both dissented in Acevedo and Carney -- and Justice Lynch dissented in the instant case. 2° For all of these reasons, comparing this case to NYC C.L.A.S.H. would be like comparing apples to oranges. 20 Justice Garry was not on the Appellate Division panel in this case. 23 -----"--··---···-···---------------- 3. The Regulations ignore and supersede the Legislature's comprehensive recidivist DWI offender policy. The first Boreali factor is "whether the agency did more than 'balanc[e] costs and benefits according to preexisting guidelines,' but instead made 'value judgments entail[ing] difficult and complex choices between broad policy goals' to resolve social problems." Greater N.Y. Taxi Ass'n, 25 N.Y.3d at 610 (citation omitted). See also NYC C.L.A.S.H., 27 N.Y.3d at 179-80, 181 (same). The second is whether the agency "merely fill[ed] in the details of broad legislation describing the over-all policies to be implemented [or rather] wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance.'' Boreali, 71 N.Y.2d at 13. These two factors are related. Id. ''The Legislature in the enactment of delegative statutes must define the limits of administrative discretion conferred and fix rules or standards to govern its exercise." McKinney's Statutes § 3 (d) . See also Greater N.Y. Taxi Ass'n, 25 N.Y.3d at 608 ("A legislature may enact a general statutory provision and delegate power to an agency to fill in the details, as long as reasonable safeguards and guidelines are provided to the agency") (emphasis added); Boreali, 71 N.Y.2d at 10 ("'there is no constitutional prohibition against the delegation of power, with reasonable safeguards and standards, to an agency to administer the law as enacted by the Legislature'") (emphasis added) (citation omitted). 24 "The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation." Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). "The Legislature may, of course, leave 'execution and details' to the administrators, but the Legislature must at least furnish those administrators with 'rules and principles' for guidance." Packer Collegiate Inst. v. University of State of N.Y., 298 N.Y. 184,190 (1948). See also id. at 189 ("there must be a clearly delimited field of action and, also, standards for action therein") ; id. ("'The Legislature must set bounds to the field, and must formulate the standards which shall govern the exercise of discretion within the field. Without the second rule as a corollary to the first rule there would be no effective restraint upon unfair discrimination or other arbitrary action by the administrative officer'") (citation omitted). * * * * * * * * * * The purported authorization for the Regulations derives solely from decades-old, extremely general statutes that contain no specificity whatsoever. The regulations that were held to be ultra vires in Boreali were purportedly authorized by a similar general delegation of authority: However 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. 25 Even under the broadest and most open-ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives. Here, we cannot say that the broad enabling statute in issue is itself an unconstitutional delegation of legislative authority. However, we do conclude that the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be. Boreali, 71 N.Y.2d at 9 (emphasis added) (citations omitted) To this day, Respondents have conspicuously failed to articulate one single rule, principle, guideline, safeguard, standard, limit or outer bound to their discretion. Not one. 21 Respondents potentially would have had a plausible argument in this case if the Legislature had passed a statute delegating authority to DMV to draft a recidivist DWI offender policy. However, there is no such statute. 22 To the contrary, the Legislature addressed the issue itself, enacting a detailed and comprehensive recidivist DWI offender statute long after the general statutes relied upon by Respondents were enacted. See VTL § 1193(2) (b) (12) (a.k.a. L.2006, c. 732, § 26). 21 The fact that the Regulations create at least 7 new permanent, lifetime license revocations (R. 71-73) without one single change to any relevant statute in well over two decades confirms that Respondents believe that their discretion has no bounds. 22 Cf. VTL § 1196 ("Alcohol and drug rehabilitation program. . . . There is hereby established an alcohol and drug rehabilitation program within the [DMV]. The commissioner shall establish, by regulation, the instructional and rehabilitative aspects of the program")i VTL § 523-a ("Driver improvement clinic programs. In addition to the driver rehabilitation program authorized by [VTL § 1196], the commissioner may establish, by regulation, guidelines for alcohol and highway safety programs"); VTL § 520 {"The commissioner of motor vehicles should have the authority to offer to [DWI offenders] an opportunity for rehabilitation, thereby reducing the threat aimed at themselves and the people of the state''). 26 VTL § 1193(2) (b) (12) provides, in full, as follows: (12) Permanent revocation. (a) Notwith- standing any other provision of this chapter to the contrary, whenever a revocation is imposed upon a person for the refusal to submit to a chemical test pursuant to the provisions of [VTL § 1194] or conviction for any violation of [VTL § 1192] for which a sentence of imprisonment may be imposed, and such person has: (i) within the previous [4] years been twice convicted of any provisions of [VTL § 1192] or a violation of the penal law for which a violation of [VTL § 1192] is an essential element and at least [1] such conviction was for a crime, or has twice been found to have refused to submit to a chemical test pursuant to [VTL § 1194], or has any combination of [2] such convictions and findings of refusal not arising out of the same incident; or (ii) within the previous [8] years been convicted [3] times of any provision of [VTL § 1192] for which a sentence of imprisonment may be imposed or a violation of the penal law for which a violation of [VTL § 1192] is an essential element and at least [2] such convictions were for crimes, or has been found, on [3] separate occasions, to have refused to submit to a chemical test pursuant to [VTL § 1194], or has any combination of such convictions and findings of refusal not arising out of the same incident, such revocation shall be permanent. (b) The permanent driver's license revocation required by clause (a) of this subparagraph shall be waived by the commissioner after a period of [5] years has expired since the imposition of such permanent revocation, provided that during such [5]-year period such person has not been found to have refused a chemical test pursuant [VTL § 1194] while operating a motor vehicle and has not been convicted of a violation of any subdivision of [VTL § 1192] or [VTL § 511] or a violation of the penal law for which a violation of any subdivision of [VTL § 1192] is an essential element and either: 27 (i) that such person provides acceptable documentation to the commissioner that such person has voluntarily enrolled in and successfully completed an appropriate rehabilitation program; or (ii) that such person is granted a certificate of relief from disabilities or a certificate of good conduct pursuant to [Correction Law Article 23] . Provided, however, that the commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored pursuant to this item, in the interest of the public safety and welfare. (c) 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 by any such person after a mandatory revocation period of not less than [3] years subject to such criteria, terms and conditions as established by the commissioner. (d) Upon (i) a finding of refusal after having been convicted [3] times within [4] years of a violation of any subdivision of [VTL § 1192] or of the penal law for which a violation of any subdivision of [VTL § 1192] is an essential element or any combination of [3] such convictions not arising out of the same incident within [4] years[;] or (ii) a fourth conviction of any subdivision of [VTL § 1192] after having been convicted of any such subdivision of [VTL § 1192] or of the penal law for which a violation of any of such subdivisions of [VTL § 1192] is an essential element or any combination of [3] such convictions not arising out of the same incident within [4] years[;] or (iii) a finding of refusal after having been convicted [4] times within [8] years of a violation of any subdivision of [VTL § 1192] or of the penal law for which a violation of any of such subdivisions of [VTL § 1192] is an essential element or any combination of [4] such convictions not arising out of the same incident within [8] years[;] or 28 (iv) a fifth conviction of any subdivision of [VTL § 1192] after having been convicted of such subdivision or of the penal law for which a violation of any of such subdivisions of [VTL § 1192] is an essential element or any combination of [4] such convictions not arising out of the same incident within [8] years, such revocation shall be permanent. (e) The permanent driver's license revocation required by clause (d) of this subparagraph may be waived by the commissioner after a period of [8] years has expired since the imposition of such permanent revocation provided: (i) that during such [8]-year period such person has not been found to have refused a chemical test pursuant to [VTL § 1194] while operating a motor vehicle and has not been convicted of a violation of any subdivision of [VTL § 1192] or [VTL § 511] or a violation of the penal law for which a violation of any such subdivisions of [VTL § 1192] is an essential element; and (ii) that such person provides acceptable documentation to the commissioner that such person has voluntarily enrolled in and successfully completed an appropriate rehabilitation program; and (iii) after such documentation is accepted, that such person is granted a certificate of relief from disabilities or a certificate of good conduct pursuant to [Correction Law Article 23]. Notwithstanding the provisions of this clause, nothing contained in this clause shall be deemed to require the commissioner to restore a license to an applicant who otherwise has complied with the requirements of this item, in the interest of the public safety and welfare. (f) Nothing contained in this subparagraph shall be deemed to reduce a license revocation period imposed pursuant to any other provision of law. (Emphasis added) . 29 VTL § 1193 (2) (b) (12) takes up multiple pages in the VTL. It clearly sets forth what is required to qualify for "permanent" revocation. Dispositively, VTL § 1193(2) (b) (12) demonstrates a legislative intent that even when the Legislature uses the term "permanent revocation" it does not mean permanent revocation. In addition, in order to be subject to an 8-year "permanent" revocation under VTL § 1193(2) (b) (12), a person must accumulate either: (a) 4 DWI-related convictions within 4 years; or (b) 5 DWI-related convictions within 8 years. See VTL §§ 1193 (2) (b) (12) (d) and (e). This statute cannot legitimately be reconciled with Regulations that permanently revoke a person's driver's license for either: (a) 3 DWI-related convictions combined with two 5- or 6-point traffic infractions within 25 years; or (b) 5 DWI-related convictions within a person's entire lifetime. See 15 NYCRR §§ 136.5 (b) (l) and (2). VTL § 1193(2) (b) (12) is not a statute that can validly be interpreted as granting Respondents unlimited discretion to do whatever they want to recidivist DWI offenders. To the contrary, it places a very clear ceiling on Respondents' discretion. If a recidivist DWI offender, like Petitioner, does not qualify for a 5-year revocation (let alone an 8-year revocation) thereunder, then Respondents' discretion, however broad, is limited to revoking the person's driver's license for less than 5 years. 30 In other words, it is axiomatic that an individual who does not fall within the ambit of VTL § 1193 (2) (b) (12) cannot be permanently revoked -- either "permanently" or permanently -- pursuant to a regulation that targets the exact same behavior. If there is one single limit on Respondents' discretion, then Respondents cannot do what they have done to Petitioner (i.e., permanently revoke the driver's license of a citizen who does not fall within the ambit of VTL § 1193 (2) (b) (12) -- and who would be entitled to relicensure after 5 years even if she did. The outer boundaries of Respondents' discretion are clear: At the one extreme are the minimum statutory revocation periods. At the other extreme are the "permanent" revocation periods set forth in VTL § 1193(2) (b) (12). Respondents have chosen to ignore the law and to significantly exceed their discretion, hoping that the unpopularity of recidivist DWI offenders will entice the Courts to turn a blind eye. 31 4. Respondents' flagrant disregard of VTL § 1193(2) (b) (12) is epitomized by new regulation 15 NYCRR § 136.10Cbl. 15 NYCRR § 136.10 (b) (R. 126) addresses the re1icensure of recidivist DWI offenders who actually do fall within the ambit of VTL § 1193 (2) (b) (12). Although VTL § 1193 (2) (b) (12) (b) mandates that a revocation under VTL § 1193 (2) (b) (12) (a) generally shall be waived by DMV after 5 years as long as the motorist has not been found guilty of violating VTL § 511, VTL § 1192, VTL § 1194 or a VTL § 1192-related Penal Law offense during the revocation period, and either: 1. Has completed treatment; or 2. Has obtained a certificate of relief (or a certificate of good conduct); 15 NYCRR § 136.10(b) provides that the revocation will never be waived after 5 years under any circumstances, and will only be waived after 10 years if the motorist has not been found guilty of violating VTL § 511, VTL § 1192, VTL § 1194 or a VTL § 1192- related Penal Law offense during the revocation period, and: 1. Has completed treatment; and 2. Has obtained a certificate of relief (or a certificate of good conduct); and 3. Is not denied relicensure pursuant to new regulation 15 NYCRR § 136.4 or new regulation 15 NYCRR § 136.5; and 4. Has not driven during the revocation period. 23 23 VTL § 1193(2) (b) (12) (b) clearly states that either treatment or a certificate of relief (or a certificate of good conduct) is required -- not both. Cf. VTL § 1193(2) (b) (12) (e). In requiring both treatment and a certificate of relief (or a certificate of good conduct), 15 NYCRR § 136.10(b) illegally grants Courts (and the Department of Corrections and Community Supervision) veto power over whether a person will ever be relicensed. 32 Individuals who are "relicensed" after 10 years are thereafter subjected to 15 NYCRR § 136.5(b) (3), and are only granted a restricted license with an liD requirement for 5 more years. Thus, new regulation 15 NYCRR § 136.10(b) subjects individuals who are statutorily entitled to full relicensure after 5 years to a minimum 15-year license sanction. Disturbingly, Respondents have taken the position that they have no discretion whatsoever to deviate from this patently illegal policy. In this regard, as the Courts below were made aware, Petitioner's counsel represents a motorist who is being subjected to new regulation 15 NYCRR § 136.10(b). This person wrote to Governor Cuomo regarding her plight. Governor Cuomo referred the letter to Respondents for a response. Respondents' response provides, in pertinent part: The latest open revocation date that appears on your driving record is May 8, 2008. Since this is a permanent (5 year) revocation, you were eligible to apply for a waiver on or after the date of May 8, 2013. However, due to the new regulations, you must now wait an additional 5 years after the waiver date in order to apply for reinstatement of your New York State driver license. Unfortunately, we have no discretion in this matter and there is no way to waive or reduce the sanction period. (R. 381) (emphasis in bold added) In addition, pursuant to VTL § 1193(2) (b) (12) (b) a waiver can only be denied if the motorist has been convicted of violating VTL § 511, VTL § 1192, VTL § 1194 or a VTL § 1192-related Penal Law offense during the "permanent" revocation period. Respondents' position that mere evidence of driving will result in the denial of a waiver not only renders the statute ineffective it also renders the language in 15 NYCRR § 136.10(b) which mirrors the statutory language ineffective. See (R. 126). 33 Although Petitioner is not directly impacted by new 15 NYCRR § 136.10(b), this regulation-- and Respondents' claim that they have no discretion whatsoever to deviate from it -- is brought to the Court's attention to highlight Respondents' flat out refusal to follow VTL § 1193(2) (b) (12) (a.k.a. the law). While the issue of recidivist DWI offenders is serious, this Court has never permitted an administrative agency to overreach in such an obvious and indefensible manner. See. e.g., Hispanic Chambers of Commerce, supra; Boreali, supra; Matter of Wignall v. Fletcher, 303 N.Y. 435, 441 (1952) ("However much we may recognize the need for the rightful exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways, it would be a dangerous step indeed if we permitted him to follow any loose practice formulated by him, regardless of the law"). See generally People v. Letterlough, 86 N.Y.2d 259, 269 (1995) ("While innovative ideas to address the serious problem of recidivist drunk driving are not to be discouraged, the courts must act within the limits of their authority and cannot overreach by using their probationary powers to accomplish what only the legislative branch can do''). 34 5. New regulation 15 NYCRR § 136.5 renders every single provision of VTL § 1193(2) (b) (12) ineffective. A comparison of the provisions of new regulation 15 NYCRR § 136.5 with the provisions of VTL § 1193 (2) (b) (12) demonstrates that there is not one single provision in VTL § 1193 (2) (b) (12) that is not rendered superfluous or ineffective by the new regulation. 15 NYCRR § 136.5(b) (3), which revokes the driver's licenses of everyone who has accumulated 3 or 4 DWI-related convictions within a 25-year time period for a minimum of 5 years longer than the statutory revocation period -- followed by 5 more years on a restricted license with a 5-year IID requirement -- renders VTL §§ 1193 (2) (b) (12) (a) and (b) ineffective. 15 NYCRR § 136.5(b) (2), which permanently revokes the driver's licenses of everyone who has accumulated 3 or 4 DWI- related convictions plus a ''serious driving offense'' within a 25-year time period, further renders VTL §§ 1193 (2) (b) (12) (a) and (b) ineffective. The fact that none of the person's DWI-related convictions is required to be for a crime for purposes of 15 NYCRR § 136.5 whereas at least one of the offenses required for "permanent" revocation pursuant to VTL § 1193(2) (b) (12) (a) (i) must be for a crime, and at least two of the offenses required for ''permanent" revocation pursuant to VTL § 1193(2) (b) (12) (a) (ii) must be for crimes-- further renders VTL §§ 1193(2) (b) (12) (a) and (b) ineffective. 35 Since no one who has 3 or more DWI-related convictions within the previous 25 years will ever be granted a conditional license under the Regulations," VTL § 1193(2) (b) (12) (c) is rendered ineffective.•• Finally, 15 NYCRR § 136.5(b) (1), which permanently revokes the driver's licenses of everyone who has accumulated 5 DWI-related convictions within their entire lifetimes, renders VTL §§ 1193(2) (b) (12) (d) and (e) ineffective. Simply stated, the Regulations render VTL § 1193 (2) (b) (12) the Legislature's detailed and comprehensive policy targeting the exact same group of people targeted by the Regulations -- "superfluous, a result to be avoided in statutory construction.'' People v. Litto, 33 A.D.3d 625, 626 (2d Dep't 2006), aff'd, 8 N.Y. 3d 692 (2007). See also McKinney's Statutes§ 144 ("Statutes will not be construed as to render them ineffective''); McKinney's Statutes§ 98. If the Legislature wanted a general rule pursuant to which 3 or 4 DWI-related convictions plus a "serious driving offense" within a 25-year time period (and/or 5 DWI-related convictions within a person's entire lifetime) would result in a permanent license revocation, then VTL § 1193 (2) (b) (12) -- or VTL § 1193 (2) (c) (3) -- would say just that. 24 See 15 NYCRR § 134.7(a)(ll)(i); (R. 120). 25 VTL § 1198(3) (a), which provides that for purposes of issuing a post-revocation conditional license "the commissioner shall not deny such issuance based solely upon the number of convictions for violations of any subdivision of [VTL § 1192] committed by such person within the [10] years prior to application for such license," is also rendered ineffective by the Regulations. 36 6. The Regulations violate the rule that a prior general statute yields to a more recent specific statute covering the same subiect matter. At its core, this case boils down to the following question: Does the old, general, one-sentence-long delegation of authority contained in VTL § 1193(2) (c) (1) authorize Respondents to supersede the far more recent, highly specific, and pages-long provisions of VTL § 1193 (2) (b) (12)? The question almost seems rhetorical. It is well settled that "[a] special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies." McKinney's Statutes§ 397, at 574. "Any other conclusion would destroy the effect of all special acts on subjects covered by general legislation." Id. at 576. This Court has repeatedly followed this rule. See, e.g., People v. Zephrin, 14 N.Y.3d 296, 301 (2010) ("we have held on numerous occasions that a specific statutory provision governs over a more general provision"); Matter of Dutchess County Dep't of Social Servs. v. Day, 96 N.Y.2d 149, 153 (2001) ("Another well-established rule of statutory construction provides that a 'prior general statute yields to a later specific or special statute'") (citation omitted) ; Matter of Francois v. Dolan, 95 N.Y.2d 33, 38-39 (2000) ("giving precedence to the subsequently enacted, specific provision . over the earlier enacted, more general provisions . is consistent with the canon of statutory interpretation most directly applicable here: 37 I 'what is special or particular in the later of two statutes supersedes as an exception whatever in the earlier statute is unlimited or general'") (citation omitted). See also Matter of Brusco v. Braun, 84 N.Y.2d 674, 681 (1994). VTL § 1193 (2) (b) (12), a highly detailed, comprehensive, multi-page statute tailored solely to the issue of when -- and for how long -- the driver's licenses of recidivist DWI offenders who have accumulated 3 or more DWI-related convictions should be revoked, was enacted long after the general provisions of the statutes relied upon by Respondents were enacted. As such, VTL § 1193 (2) (b) (12) controls this case and places clear limits on Respondents' discretion that Respondents have ignored and exceeded. 26 26 The location of VTL § 1193(2) (b) (12) within the VTL is itself significant. VTL § 1193(2) (b) (12) immediately precedes VTL § 1193(2) (c) (1). It is inconceivable that the same Legislature that enacted VTL § 1193(2) (b) (12) contemplated that DMV could utilize pre-existing VTL § 1193(2) (c) (1) to nullify its newly created recidivist DWI offender policy. See, e.g., McKinney's Statutes§§ 97, 98, 144, 397. 38 7. The Regulations violate the doctrine of legislative acquiescence. The Legislature's failure to interfere with Respondents' prior treatment of recidivist DWI offenders indicates that the Legislature was in agreement with the prior policy. See, e.g., Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600, 612 (2015) ("Where an agency has promulgated regulations in a particular area for an extended time without any interference from the legislative body, we can infer, to some degree, that the legislature approves of the agency's interpretation or action''); Matter of N.Y. Pub. Interest Research Group v. New York State Dep't of Ins., 66 N.Y.2d 444, 451 (1985) ("We have held legislative acquiescence by silence significant in prior cases"). The doctrine of legislative acquiescence is applicable to this case for at least three reasons. First, between at least 1986 and 2006 the Legislature acquiesced in Respondents' longstanding recidivist DWI offender policy. See (R. 114-15). Second, the Legislature ultimately no longer fully acquiesced in the policy-- as it enacted VTL § 1193(2) (b) (12) in 2006. 27 Third, numerous post-2006 attempts to pass laws that would impose harsher penalties on recidivist DWI offenders have failed. 27 This Court has made clear that "in cons-truing a statute, the courts frequently 'follow the course of legislation on the subject, the lineage of the act being thought to illuminate the intent of the legislature.'" People v. Litto, 8 N.Y. 3d 692, 697 (2007) (citation omitted). 39 The combination of (a) the Legislature's longstanding acquiescence in Respondents' implementation of laws like VTL § 1193 (2) (c) (1), (b) the passing of VTL § 1193 (2) (b) (12), and (c) the failure to pass a multitude of proposed laws that contained provisions similar to those contained in the Regulations, is as clear of a statement from the Legislature as there can possibly be that the existing treatment of recidivist DWI offenders was exactly what the Legislature wanted -- and thus that the Regulations constitute illegal administrative policymaking. 40 8. The decision of the Appellate Division maiority cannot be reconciled with a series of DWI-related decisions issued by this Court. This Court has repeatedly -- and consistently -- held that attempts to expand the scope of DWI-related statutes by construing general or ambiguous statutory language in a creative manner are improper. See, e.g., People v. Rivera, 16 N.Y.3d 654 (2011) (defendant who commits a new DWI while on a conditional license from a prior DWI cannot be prosecuted for the felony of AUO 1st, in violation of VTL § 511(3), but rather can only be prosecuted for violating VTL § 1196 ( 7) (f) , a traffic infraction) ; People v. Ballman, 15 N.Y.3d 68 (2010) (VTL § 1192(8) does not allow an out-of-state DWI conviction occurring prior to November 1, 2006 to be used to elevate a new DWI charge from a misdemeanor to a felony); People v. Litto, 8 N.Y.3d 692 (2007) (the term ''intoxicated" in VTL § 1192(3) only applies to intoxication caused by alcohol; not to intoxication caused by any substance); People v. Prescott, 95 N.Y.2d 655 (2001) (a person cannot be charged with attempted DWI); People v. Letterlough, 86 N.Y.2d 259 (1995) (court cannot use the general, catch-all provision of PL § 65.10 to order defendant to affix a fluorescent sign stating "CONVICTED DWI" to the license plates of any vehicle that he operated); id. at 269 ("While innovative ideas to address the serious problem of recidivist drunk driving are not to be discouraged, the courts must act within the limits of their authority and cannot overreach by using their probationary powers to accomplish what only the legislative branch can do"). 41 See generally People v. Moselle, 57 N.Y.2d 97, 109 (1982) (''It is not seriously challenged that section 1194 has preempted the administration of chemical tests for determining alcoholic blood content with respect to violations under section 1192 of the Vehicle and Traffic Law. The detail of the statutory prescriptions and the positioning of the section in the Vehicle and Traffic Law leave no room for doubt in this regard"). The DWI statutes comprise pages and pages of the VTL, and the DWI-related vehicular crimes statutes comprise pages and pages of the Penal Law. DWI-related issues are legislated down to minutiae -- from arrest to sentencing and everything in between (e.g., field testing, chemical testing, test refusals, effect of test result, suspension pending prosecution, plea bargain limitations, criminal sanctions, driver's license sanctions, civil penalties, driver responsibility assessments, Drinking Driver Program, STOP-DWI Program, Victim Impact Panel, alcohol assessment/treatment, conditional licenses, ignition interlock devices, out-of-state convictions, underage offenders, recidivist offenders, commercial drivers, "special vehicles," child in vehicle, etc.). See, e.g., VTL §§ 1192-99. In Prescott, this Court noted that: In the early 1980's, drunk driving became a dominant social issue. In response, the Legislature enacted a series of reforms and in 1988 consolidated and recodified pertinent provisions into a single article. Article 31 emerged as a tightly and carefully integrated statute the sole purpose of which is to address drunk driving. 95 N.Y.2d at 659 (citations omitted). See also id. at 659 n.3: 42 Under article 31, the offenses and penalties are systematically interwoven with police procedures and rehabilitative programs. Section 1192 defines the offenses and section 1193 sets forth the sanctions (both criminal and administrative). Section 1194 details arrest and field test guidelines for section 1192 violations including the administration of chemical tests and penalties for driver refusals of testing. Section 1195 prescribes the circumstances when and how chemical test evidence is to be admitted. Section 1196 establishes an alcohol and drug rehabilitation program and sets forth eligibility criteria in the context of section 1192 violations. Section 1196 also creates a "conditional license'' for program participants that affords limited and essential driving privileges to a holder. The section also authorizes, with some restrictions, termination of the license suspension or revocation after completion of the program. Finally, section 1197 authorizes counties to establish their own driving while intoxicated prevention programs. (Citations omitted) . See also VTL § 1198 ("Installation and operation of [liDs]"); VTL § 1198-a ("Special procedures and disposition involving alcohol and substance abuse assessment and treatment''); VTL § 1199 ("Driver responsibility assessment'') Unlike most other criminal statutes, the DWI laws are routinely revisited and amended. See, e.g., Litto, 8 N.Y.3d at 693 ("Over the last 97 years, the Legislature has crafted and repeatedly refined statutes with the goal of removing from the road those who drive while intoxicated"). Whether the issue is labeled "field preemption" or is simply a consistent application of McKinney's Statutes§ 97, 28 this Court has made clear that in the field of DWI law the Legislature's silence is deafening. 28 It is fair to say that the principles articulated in McKinney's Statutes § 97 were relevant to, if not dispositive of, this Court's decisions in Rivera, Ballman, Litto, Prescott and Letterlough. 43 In sum, the DWI laws have been amended and refined so often, and for so long, that they by definition always come as close as possible to expressing the present intent of the majority of the Legislature. In this regard, the third Boreali factor (i.e., whether "the agency acted in an area in which the Legislature had repeatedly tried -- and failed -- to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions"), Boreali, 71 N.Y.2d at 13, surely weighs in Petitioner's favor. Aside from the fact that the Legislature repeatedly revisits and refines the DWI laws, the Legislature also routinely fails to pass proposed "get-tougher-on-DWI" laws. See, e.g., 2011 New York Senate Bill No. 6496; 2011 New York Assembly Bill No. 8934- B; 2013 New York Senate Bill No. 7175, § 1; 2013 New York Senate Bill No. 6355, § 3; 2013 New York Assembly Bill No. 1933, § 2; 2013 New York Senate Bill No. 6287, § 2; 2013 New York Assembly Bill No. 3347, § 3; 2013 New York Senate Bill No. 739, §§ 1 & 2; 2013 New York Assembly Bill No. 2279, § 1; 2013 New York Senate Bill No. 6355, § 2; 2013 New York Assembly Bill No. 5774, § 2; 2013 New York Assembly Bill No. 5775, §§ 2 & 3; 2013 New York Assembly Bill No. 4346, § 4; 2013 New York Assembly Bill No. 586, § 5; 2013 New York Assembly Bill No. 1997. The Boreali Court's comment that "[w]hile we have often been reluctant to ascribe persuasive significance to legislative inaction, our usual hesitancy in this area has no place here,'' 71 N.Y.2d at 13 (citations omitted), is applicable to this case. 44 Perhaps more significant than the fact that the Legislature routinely fails to pass proposed "get-tougher-on-DWI" laws is the fact that the Legislature routinely passes such laws. VTL § 1193 (2) (b) (12) is precisely such a law. Thus, while the third Boreali factor is generally discussed in terms of the Legislature failing to reach consensus on the topic in question, in the field of DWI law the Legislature frequently does reach consensus. It is particularly inappropriate for DMV to take drastic action in a field where (a) the Legislature needs no help, and (b) this Court has repeatedly made clear that attempts to expand the scope of DWI-related statutes by construing general or ambiguous statutory language in a creative manner are improper. 45 9. The new 25-year look-back period constitutes illeaal oolicvmakina. conflicts with existing statutes and is otherwise ultra vires. Another aspect of the Regulations that constitutes illegal policymaking, conflicts with existing statutes and is otherwise ultra vires is the new 25-year look-back period (R. 124-25). "25-year look-back period" is defined as "the period commencing upon the date that is 25 years before the date of the revocable offense and ending on and including the date of the revocable offense." 15 NYCRR § 136.5 (a) (3). Since the 25-year look-back period utilizes the date of the revocable offense -- as opposed to the date of the person's application for relicensure -- as the ending point, in reality it always looks back substantially longer than 25 years. 29 The Legislature has never utilized a 25-year look-back period for DWI-related offenses. In fact, at the time that the Regulations were enacted the Legislature had never utilized a look-back period of more than 10 years (unless there was physical injury or the motorist is a commercial driver) See, e.g. : 1. VTL § 1193 (1) (a) (5 and 10 years); 29 For example, if a person's three DWI-related convictions were in 1986, 1987 and 2010, and the person applied for relicensure in 2013, the person would only have one DWI-related conviction within the past 25 years, but would nonetheless have three DWI-related convictions within the 25-year look-back period. As such, the person would be subjected to the Regulations. If the same person applied for relicensure in 2036, the person would now have zero DWI-related convictions within the past 25 years -- but would still have three DWI-related convictions within the 25-year look-back period -- and would still be subjected to the Regulations. See Matter of Dahlgren v. New York State Dep't of Motor Vehicles, 124 A.D.3d 1400, 1401 (4th Dep't 2015) ("We reject petitioner's contention that his license should not be subject to the ignition interlock restriction because he waited nearly 10 years to apply for a new license. The Commissioner's regulations permit the imposition of the A2 restriction upon granting an application for a new license without regard to how long the applicant has been without one"). 46 2 . VTL § 1193 (1) (c) (i) (10 years); 3. VTL § 1193 (1) (c) (ii) (10 years); 4. VTL § 1193 (2) (b) (1) ( 5 years) ; 5. VTL § 1193 (2) (b) (1-a) (10 years); 6. VTL § 1193 (2) (b) (3) (10 years); 7. VTL § 1193 (2) (b) (12) (a) (4 and 8 years); 8. VTL § 1193 (2) (b) (12) (d) ( 4 and 8 years); 9. VTL § 1194 (2) (d) (1) (5 years); 10. PL § 120.04(3) (10 years); 11. PL § 120.04-a(3) (10 years); 12. PL § 125.13 (3) (10 years); 13. PL § 125.14(3) (10 years) . 30 These laws establish a legislative determination that DWI- related convictions that are more than 10 years old are too remote in time to enhance the consequences of a current offense -- even where serious physical injury or death is involved. Notably, with the exception of part of VTL § 1193(1) (a), all of the laws with a 10-year look-back period are penal in nature; and, with the exceptions of VTL § 1193(2) (b) (1-a) and VTL § 1193(2) (b) (3), all of the laws with a shorter look-back period deal with the issue of license revocations. Thus, Respondents' determination that the look-back period should be substantially longer when dealing with license revocations as opposed to penal sanctions directly contradicts the statutory framework. 30 VTL § 510(2) (a) (iv) indicates that the proper look-back period for speeding convictions is 18 months (and it requires 3 convictions within 18 months -- whereas the Regulations only require 2 convictions within 25 years). 47 Although the recently enacted "Vince's law" utilizes a 15- year look-back period, see VTL § 1193(1) (c) (ii-a), Vince's law, as originally proposed, contained a 25-year look-back period. See 2013 New York Senate Bill No. 4267. Notably, Vince's law (a) is penal in nature, and (b) only applies to individuals who (i) are currently charged with DWI (as opposed to DWAI), and (ii) have accumulated 3 or more prior OWl-related convictions within the previous 15 years all of which must be for crimes. Thus, Vince's law deals with individuals who are currently charged with DWI and who have been previously convicted of DWI (as opposed to DWAI) at least 3 times. Nonetheless, although the originally proposed law would have been a class C felony, the enacted version is a class D felony. Vince's law demonstrates that, to this day, the Legislature is still both (a) unwilling to utilize a 25-year look-back period, and (b) vigorously debating the issue of how to best yet fairly -- address the issue of recidivist DWI offenders. 48 10. No special expertise or technical competence was involved in the development of the Regulations. The fourth Boreali factor is whether ''special expertise or technical competence in the [relevant field] was involved in the development of the regulations." Boreali, 71 N.Y.2d at 14. The NYC C.L.A.S.H. Court "suggested that this factor weighs against the agency unless its 'technical competence was necessary to flesh out details of the broadly stated legislative policies' embodied in the law pursuant to which the regulation at issue was enacted." 27 N.Y.3d at 184 (emphasis added) (citation omitted). Aside from the fact that no special expertise or technical competence is necessary to create a recidivist DWI offender policy, see, e.g., VTL § 1193 (2) (b) (12); and aside from the fact that the Legislature has not stated, even broadly, that it was authorizing DMV to draft a new recidivist DWI offender policy, cf. VTL §§ 520, 523-a & 1196; Point I of this Brief demonstrates that the Regulations are in significant respects so irrational and arbitrary that special expertise or technical competence clearly was not involved in their development. Regardless, the Regulations so obviously constitute policy- making that resort to the fourth Boreali factor is unnecessary. See Hispanic Chambers of Commerce, 23 N.Y.3d at 700-01 ("In light of Boreali's central theme that an administrative agency exceeds its authority when it makes difficult choices between public policy ends, rather than finds means to an end chosen by the Legislature, we need not, in this appeal, address the fourth Boreali factor"). 49 11. The Appellate Division dissent is clearly correct. The dissenting Justice at the Appellate Division stated: Without question, respondent Commissioner of Motor Vehicles may reasonably consider a traffic infraction as a "safety factor" in gauging whether an applicant is entitled to relicensure. The issue here, however, is one of degree. Without the [2] speeding tickets, petitioner's [3] alcohol-related convictions would be assessed under 15 NYCRR l36.5(b) (3), effecting a [5]-year stay of a relicensure application. With the speeding tickets, her case was elevated to the permanent revocation category defined in 15 NYCRR 136.5(b) (2). This dramatic consequence illustrates the arbitrariness of the subject rule. In my view, the various categories that make up a ''serious driving offense" are far too broad. While one can readily comprehend including a "fatal accident" within the definition, it is extraordinary and irrational to equate [2] [5]-point violations with a fatal accident for purposes of imposing a mandatory and permanent license revocation. As such, I would grant the petition to the extent of declaring 15 NYCRR 136.5(b) (2) to be null and void, as beyond the Commissioner's administrative authority and as arbitrary and capricious, and remit the matter to the Commissioner for further consideration of petitioner's relicensure application. (R. 450-52) (citations and footnote omitted). The dissenting opinion is well reasoned and legally sound. By contrast, as is set forth above, the Appellate Division majority, among other things, (a) made assertions regarding both the law and the Regulations that are not accurate, (b) failed to apply numerous applicable and dispositive doctrines of statutory construction, (c) failed to address adverse authority, and, most importantly, (d) grossly misapplied Boreali. 50 All four Boreali factors favor Petitioner's position. The Regulations clearly (a) constitute a regulatory scheme based on Respondents' own ideas of sound public policy, (b) constitute a comprehensive set of rules written on a clean slate without benefit of legislative guidance (or even one single standard, safeguard or guideline limiting Respondents' discretion), (c) deal with a topic that the Legislature repeatedly tries and fails to reach agreement upon in the face of substantial public debate, and (d) required no special expertise or technical competence to develop. See Boreali v. Axelrod, 71 N.Y.2d 1, 12-14 (1987). This case is virtually indistinguishable from Boreali. As such, a ruling in Respondents' favor would set a precedent that would be impossible to reconcile with Boreali (particularly in light of the Court's recent decision in Hispanic Chambers of Commerce) . The decision of the Appellate Division majority is a classic example of a hard case making bad law. 51 POINT III RESPONDENTS ACTED ILLEGALLY IN APPLYING THE NEW REGULATIONS RETROACTIVELY TO PETITIONER In Bowen v. Georgetown Univ. Hasp., 488 U.S. 204, 208-09 (1988), the Supreme Court held that: Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant. (Emphases added) (citations omitted) . See also Matter of Linsley v. Gallman, 38 A.D.2d 367, 369 (3d Dep't 1972) ("There is a presumption that legislative rules are to be applied only prospectively''), aff'd on opinion below, 33 N.Y.2d 863 (1973). Applying the Regulations to motorists, like Petitioner, who, among other things: (a) pled guilty to all of their DWI-related offenses under the old regulations; (b) served their full sentences under the old regulations; (c) enrolled in and successfully completed alcohol/drug treatment under the old regulations; (d) paid their fines, civil penalties and driver responsibility assessments under the old regulations; and (e) planned their lives and futures based upon the old regulations; is nothing short of unconscionable. It is fundamentally unfair. 52 These people, despite their driving records, are citizens who have the same rights as everyone else. Moreover, there has been no change in circumstances that makes them more of a danger to the community than similarly situated individuals have always been. In other words, there was no legitimate ''emergency"'' that justified applying the Regulations to situations where the motorist's most recent DWI-related offense was committed prior to their enactment. 31 The statistics cited by Respondents as justification for the Regulations (and as justification for promulgating the Regulations as an ''emergencyn measure) (R. 271-72); see also (R. 36, 447), appear to be nothing more than a pretense for Respondents to engage in administrative policymaking. 53 CONCLUSION Over 60 years ago, this Court stated: We are here dealing with the exercise of power by the commissioner in the revocation of a driver's license, and our decision will apply not only to this petitioner, but may affect any other holder of a driver's license in the State of New York. A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process. If in the instant case it may be done loosely and informally and without regard to the statutes in such case made and provided, then it may be done in any case, and every automobile driver in the State will be at the mercy of the commissioner and his assistants. However much we may recognize the need for the rightful exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways, it would be a dangerous step indeed if we permitted him to follow any loose practice formulated by him, regardless of the law. Matter of Wignall v. Fletcher, 303 N.Y. 435, 441 (1952). The principles articulated in Wignall are equally applicable today. For the reasons stated above, the Decision below should be reversed and the Petition should be granted. Dated: June 20, 2016 Respectfully submitted, GERSTENZANG, SILLS & GERSTENZANG By: __ L'"=-~.v-7-1~1=~~-~-· - Eric H. Sills, Esq. Attorneys for Petitioner-Appellant 210 Great Oaks Boulevard Albany, New York 12203 (518)456-6456 54