In the Matter of Caralyn A. Matsen, Appellant,v.New York State Department of Motor Vehicles, et al., Respondent.BriefN.Y.March 23, 2017 APL-2016-0054 To be argued by: JEFFREY W. LANG 15 minutes requested Albany County Index No. 2767-13 State of New York Court of Appeals In the Matter of the Application of CARALYN A. MATSEN, Appellant, -against- NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and BARBARA J. FIALA, as New York State Commissioner of Motor Vehicles, Respondents. BRIEF FOR RESPONDENTS BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General JONATHAN D. HITSOUS JEFFREY W. LANG Assistant Solicitors General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents The Capitol Albany, New York 12224-0341 (518) 776-2027 Dated: August 15, 2016 Reproduced on Recycled Paper i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..................................................................... iv PRELIMINARY STATEMENT ................................................................. 1 QUESTIONS PRESENTED ..................................................................... 2 STATEMENT OF THE CASE .................................................................. 4 A. DMV Exercises Statutory Authority over the Relicensing of Individuals Whose Licenses Were Revoked for Drunk Driving ..................................................... 4 1. License Revocations ....................................................... 4 2. License Reissuance ........................................................ 7 B. DMV Has Periodically Revisited its Regulatory Approach to the Problem of Recidivist Drunk Drivers ......... 9 1. Past Amendments to Part 136 ..................................... 10 2. Following the 2011 Amendments, DMV Reviews Part 136 ........................................................................ 12 3. The 2012 Amendments ................................................ 13 C. Matsen’s Recidivist Drunk Driving Results in a Third Revocation of Her Driver’s License ....................................... 17 D. DMV Denies Matsen’s Relicensing Application Based on its Amended Regulations ................................................. 19 E. The Lower Courts Uphold the Validity of the Presumptive Lifetime Denial ................................................ 20 SUMMARY OF ARGUMENT ................................................................. 23 ii TABLE OF CONTENTS (cont’d) ARGUMENT POINT I MATSEN HAS STANDING TO CHALLENGE ONLY THE PRESUMPTIVE LIFETIME DENIAL ...................................................... 24 POINT II THE PRESUMPTIVE LIFETIME DENIAL DOES NOT CONFLICT WITH THE VEHICLE AND TRAFFIC LAW .............................................. 25 A. The presumptive lifetime denial merely implements DMV’s discretionary authority to decide relicensing applications after the lapse of a mandatory period. ............. 26 B. The regulatory presumptive lifetime denial does not conflict with the permanent-revocation scheme. .................. 30 C. The presumptive lifetime denial does not conflict with VTL § 1193(2)(c)(3). ............................................................... 35 D. The 25-year look-back period does not conflict with any statutory look-back period. ............................................ 36 POINT III DMV’S ADOPTION OF THE PRESUMPTIVE LIFETIME DENIAL COMPLIES WITH THE SEPARATION-OF-POWERS DOCTRINE ................ 37 A. DMV stayed within its regulatory role. ................................ 38 1. The presumptive lifetime denial furthers DMV’s legislative mission. ....................................................... 39 2. DMV merely filled in the details of the Legislature’s policy regarding drunk driving. ............. 45 iii TABLE OF CONTENTS (cont’d) ARGUMENT (cont’d) POINT III (cont’d) 3. The Legislature has not substantially debated the relicensing of recidivist drunk drivers. ................. 47 4. The presumptive lifetime denial reflects DMV’s expertise. ...................................................................... 49 POINT IV DMV LAWFULLY CONSIDERED DRUNK-DRIVING CONVICTIONS AND SPEEDING VIOLATIONS THAT MATSEN INCURRED BEFORE THE 2012 AMENDMENTS WERE PROMULGATED ................................ 50 POINT V A RATIONAL BASIS SUPPORTS THE REGULATORY DEFINITIONS USED BY THE PRESUMPTIVE LIFETIME DENIAL ................................. 55 A. The definition of a “serious driving offense” has a rational basis. ........................................................................ 56 B. The definition of an “alcohol- or drug-related driving conviction or incident” has a rational basis. ......................... 61 CONCLUSION ........................................................................................ 64 ADDENDUM .......................................................................................... A1 iv TABLE OF AUTHORITIES CASES PAGE Adirondack Health-Uihlein Living Center, Matter of v. Shah, 125 A.D.3d 1366 (4th Dep’t), lv. denied, 128 A.D.3d 1425 (2015) .................................................................. 58 Acevedo, Matter of v. Dep’t of Motor Vehicles, (APL-2015-0248) ................................................................... 1n,48,50 Ass’n for a Better Long Island, Matter of v. Dep’t of Envtl. Conservation, 23 N.Y.3d 1 (2014) .......................................................................... 24 Barnes, Matter of v. Tofany, 27 N.Y.2d 74 (1970) ........................................................................ 54 Bay Park Center for Nursing and Rehabilitation, LLC v. Shah 111 A.D.3d 1227 (3d Dep’t 2013) ................................................... 58 Bd. of Educ. of City Sch. Dist. of City of Lockport v. Licata, 42 N.Y.2d 815 (1977) ...................................................................... 26 Bell v. Burson, 402 U.S. 535 (1971) ........................................................................ 53 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) ...................................................................... 1 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) .................................................................. passim Bourquin v. Cuomo, 85 N.Y.2d 781 (1995) ...................................................................... 38 v TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Carney, Matter of v. Dep’t of Motor Vehicles, (APL-2016-00021) ............................................................ 1n,20,48,50 Citizens for an Orderly Energy Pol’y, Inc. v. Cuomo, 78 N.Y.2d 398 (1991) ...................................................................... 46 Consol. Edison Co. of N.Y., Inc. v. Dep’t of Envtl. Conservation, 71 N.Y.2d 186 (1988) ............................................................ 33,41,49 Consolation Nursing Home, Inc., Matter of v. Comm’r of N.Y. State Dep’t of Health, 85 N.Y.2d 326 (1995) ................................................................. 55-56 Dahlgren, Matter of . N.Y.S. Dep’t of Motor Vehicles, 124 A.D.3d 1400 (4th Dep’t), lv. denied, 25 N.Y.3d 906 (2015) .................................................................... 23n Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) .......................................................... 54 Forti, Matter of v. State Ethics Comm’n, 75 N.Y.2d 596 (1990) ...................................................................... 51 Friedman v. Conn. Gen. Life Ins. Co., 9 N.Y.3d 105 (2007) ........................................................................ 32 General Electric Capital Corp. v. Div. of Tax Appeals, 2 N.Y.3d 249 (2004) ........................................................................ 28 Greater N.Y. Taxi Ass’n v. N.Y. City Taxi & Limousine Comm’n, 25 N.Y.3d 600 (2015) ............................................................ 41,42,43 Greenholtz v. Inmates of Ne. Penal and Corr. Complex, 442 U.S. 1 (1979) ............................................................................ 53 vi TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Hecker v. State, 20 N.Y.3d 1087 (2013) .................................................................... 60 I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ........................................................................ 52 Kellogg, Matter of v. Travis, 100 N.Y.2d 407 (2003) .................................................................... 54 Kuppersmith v. Dowling, 93 N.Y.2d 90 (1999) ........................................................................ 55 Levine, Matter of v. Whalen, 39 N.Y.2d 510 (1976) ...................................................................... 56 McKevitt, Matter of v. Fiala, 129 A.D.3d 730 (2d Dep’t 2015) ................................................... 23n Med. Soc’y of N.Y., Matter of v. Serio, 100 N.Y.2d 854 (2003) ................................................ 25-26,42,46,49 Miller v. Alabama, 132 S. Ct. 2455 (2012) .................................................................... 62 Miller, Matter of v. DeBuono, 90 N.Y.2d 783 (1997) ...................................................................... 52 Montgomery v. Daniels, 38 N.Y.2d 41 (1975) ........................................................................ 58 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) ................................................................. 42,43 vii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE NYC C.L.A.S.H. v. Office of Parks, Recreation & Historic Preservation, 27 N.Y.3d 174 (2016) .............................................................. passim N.Y. State Ass’n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207 (2004) ........................................................................ 24 Oswald N., Matter of, 87 N.Y.2d 98 n.1 (1995) .................................................................. 48 People v. Drayton, 39 N.Y.2d 580 (1976) ...................................................................... 61 Pringle v. Wolfe, 88 N.Y.2d 426 (1996) ................................................................. 45,53 Rent Stabilization Assoc. of New York City v. Higgins, 83 N.Y.2d 156 (1993) ............................................................ 47,48,50 Riegert Apts. Corp. v. Planning Bd. of Town of Clarkson, 57 N.Y.2d 206 (1982) ...................................................................... 26 Schneider v. Sobol, 76 N.Y.2d 309 (1990) ...................................................................... 58 Schulz v. N.Y. State Exec., 92 N.Y.2d 1 (1999) .......................................................................... 25 Scism, Matter of v. Fiala, 122 A.D.3d 1197 (3d Dep’t 2014) ................................................... 59 Shearer, Matter of v. Fiala, 124 A.D.3d 1291 (4th Dep’t), lv. denied, 25 N.Y.3d 909 (2015) .......................................................... 23n,37,59 viii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Soc’y of Plastics Indus. v. Cty. of Suffolk, 77 N.Y.2d 761 (1991) ...................................................................... 24 St. Clair Nation, Matter of v. City of N.Y., 14 N.Y.3d 452 (2010) ...................................................................... 51 Weiss v. City of N.Y., 95 N.Y.2d 1 (2000) .......................................................................... 26 STATE CONSTITUTION Article III § 1 ............................................................................................... 38 STATE STATUTES C.P.L.R. article 78 ...................................................................................... 1,20 CPL § 720.10(1) .................................................................................... 62n Vehicle and Traffic Law article 31 ......................................................................................... 45 §155 ............................................................................................... 58 § 210 ................................................................................................. 4 § 215(a) ............................................................................................. 4 § 216-a ............................................................................................ 50 § 225 ............................................................................................... 58 § 501(1) ............................................................................................. 4 § 508 ............................................................................................ 4,40 § 510(6) ............................................................................................. 4 § 511(3) ........................................................................................... 60 § 511(3)(a) ....................................................................................... 63 ix TABLE OF AUTHORITIES (cont’d) PAGE STATE STATUES (cont’d) Vehicle and Traffic Law (cont’d) § 600(2) ........................................................................................... 60 § 1180(b) ......................................................................................... 59 § 1180(h)(1)(ii) ................................................................................ 59 § 1192 ......................................................................................... 14,45 § 1192(2)(b)(3) ................................................................................. 17 § 1193 ......................................................................................... 45,46 § 1193(1) ........................................................................................... 4 § 1193(2)(a) ....................................................................................... 4 § 1193(2)(b) ............................................................................. passim § 1193(2)(b)(1)-(2)(b)(8) ..................................................................... 6 § 1193(2)(b)(12) ....................................................................... passim § 1193(2)(b)(12)(a) ..................................................................... 6,33n § 1193(2)(b)(12)(b) .................................................................. passim § 1193(2)(b)(12)(c) ......................................................................... 33n § 1193(2)(b)(12)(d) ............................................................................ 7 § 1193(2)(b)(12)(e) .............................................................. 7,8n,30,32 § 1193(2)(c) ....................................................................................... 8 § 1193(2)(c)(1) ......................................................................... passim § 1193(2)(c)(2) ................................................................................ 8,9 § 1193(2)(c)(3) ......................................................................... passim § 1194 .............................................................................................. 46 § 1194-a ..................................................................................... 14,62 § 1194(b)-(d) .................................................................................... 5n § 1194(2)(d)(1)(a) .................................................................... passim L. 1988, ch. 47 § 18 .................................................................................... 8 STATE RULES AND REGUALTIONS 15 N.Y.C.R.R. § 3 ............................................................................................. 42n § 3.2(c)(4) ...................................................................................... 16n § 8.2 ................................................................................................. 5 x TABLE OF AUTHORITIES (cont’d) PAGE STATE RULES AND REGULATIONS (cont’d) 15 N.Y.C.R.R. (cont’d) § 131 ...................................................................................... 15n,42n § 131.2 ........................................................................................... 15n § 131.3 ............................................................................................. 15 § 135.9(b) ...................................................................................... 16n § 136 ....................................................................................... passim § 136.1(b)(1) ................................................................................. 9,11 § 136.1(b)(3) .................................................................................... 10 § 136.1(b)(6) .................................................................................. 10n § 136.4 ............................................................................................. 42 § 136.4(a)(2) .................................................................................... 10 § 136.4(a)(3) .................................................................................... 10 § 136.4(b) ................................................................................. 11,16n § 136.5(a)(1) .......................................................................... 14,21,61 § 136.5(a)(2) .......................................................................... 14,19,21 § 136.5(a)(3) .................................................................................. 14n § 136.5(b)(1) .................................................................................... 14 § 136.5(b)(2) ............................................................................ passim § 136.5(b)(3) .................................................................................... 16 § 136.5(b)(6) .................................................................................. 16n § 136.5(d) ................................................................................... 16,29 § 136.6 ............................................................................................. 42 § 136.6(a)(7)(ii) ............................................................................... 11 § 136.6(a)(8) .................................................................................... 10 § 136.6(a)(9)(a) (1982) .................................................................... 10 § 136.9 (2006) ................................................................................. 11 § 136.10 ........................................................................................... 24 41 N.Y. Reg. 41 (March 13, 2013) ...................................................... 12,13 51 N.Y. Reg. 32 (Dec. 22, 2010) ............................................................... 11 xi TABLE OF AUTHORITIES (cont’d) PAGE MISCELLANEOUS DMV Driver’s License Reissuance After Revocations https://dmv.ny.gov/tickets/suspensions-and-revocations ................ 5 DMV’s Summary of Speed-Related Motor Vehicle Crashes https://dmv.ny.gov/statistic/ 2014-speed-relatedcrashsummary.pdf........................................ 59n PRELIMINARY STATEMENT As the United States Supreme Court has recently recognized, “Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2166 (2016). To combat this problem, in 2012, respondent New York State Department of Motor Vehicles (“DMV”) strengthened its regulations governing the relicensing of individuals whose licenses have been revoked as a result of convictions for drunk driving. This hybrid C.P.L.R. article 78 proceeding/declaratory judgment action is one of three appeals now pending before the Court challenging various aspects of these regulatory amendments.1 In this appeal, petitioner Caralyn A. Matsen contests the regulation providing that DMV will presumptively deny relicensing to applicants who have three or four drunk-driving convictions and a 1 The two related appeals before this Court are Matter of Acevedo v. Dep’t of Motor Vehicles (APL-2015-0248), which involves the regulatory provisions generally imposing a five-year waiting period followed by a five-year restricted-license period, and Matter of Carney v. Dep’t of Motor Vehicles (APL-2016-00021), which involves the regulatory provision generally declining ever to relicense individuals with five or more drunk-driving convictions. 2 “serious driving offense,” all within a 25-year look-back period. Matsen has three drunk-driving convictions and a “serious driving offense,” consisting in her case of two speeding violations for which six points each were assessed, all within the look-back period. Accordingly, DMV applied this regulation in deciding her application. The regulation at issue in this appeal—like those at issue in the related appeals—is presumptive rather than mandatory in effect. It informs the public as to how DMV generally intends to exercise its discretion to decide post-revocation relicensing applications, while expressly preserving DMV’s discretion to override the generally applicable rule in special circumstances. The individuals subject to this regulation have all been given second chances—often repeated second chances—only to commit drunk- driving offenses again. The Court should uphold it as a valid exercise of DMV’s regulatory authority. QUESTIONS PRESENTED 1. Does Matsen lack standing to challenge any part of DMV’s amended regulations other than the provision for presumptive lifetime 3 denial and the definitions that it uses, when her relicensing application was denied pursuant to that provision? 2. Is the presumptive lifetime denial consistent with DMV’s authority under the Vehicle and Traffic Law to grant or deny relicensing applications in its discretion? 3. Is the presumptive lifetime denial consistent with the separation-of-powers doctrine, because it enables DMV to perform its statutory duties to protect the public, to inform the public about how DMV generally intends to use its statutory discretion to decide relicensing applications, and to facilitate equal treatment of similarly situated applicants? 4. In rendering relicensing determinations, may DMV lawfully consider drunk-driving convictions and speeding violations that an applicant incurred before the promulgation of the relicensing regulations? 5. Do the regulatory definitions of a “serious driving offense” and an “alcohol- or drug-related driving conviction or incident” used by the presumptive lifetime denial have a rational basis? 4 STATEMENT OF THE CASE A. DMV Exercises Statutory Authority over the Relicensing of Individuals Whose Licenses Were Revoked for Drunk Driving The Vehicle and Traffic Law (the “VTL”) entrusts DMV with safeguarding those who travel on New York’s roads, and tasks the agency with developing safety programming. VTL § 210. To this end, DMV may issue drivers’ licenses, see VTL § 501(1), suspend or revoke such licenses, and decide whether to issue new licenses to individuals whose licenses were previously revoked, see VTL § 510(6). DMV may also enact regulations as needed to exercise its statutory powers in a consistent and effective manner. VTL § 215(a). This authority includes the authority to issue licensing regulations. VTL § 508. 1. License Revocations Most drunk-driving offenses carry criminal consequences. See VTL § 1193(1) (criminal sanctions).2 A conviction for any such offense typically carries administrative consequences as well, in the form of license suspension, VTL § 1193(2)(a), or license revocation, 2 The VTL makes driving while ability impaired by alcohol a traffic infraction and criminalizes driving while ability impaired by drugs and driving while intoxicated by either alcohol or drugs or both. See VTL § 1193(1). 5 VTL § 1193(2)(b).3 Whereas a suspension allows an individual’s driving privilege to be restored either automatically or upon satisfaction of certain conditions (the payment of a fee, for example), a revocation cancels the individual’s driving privilege altogether. An individual whose license has been revoked must apply for a new driver’s license, and will usually be required to re-take the road test. See N.Y. Comp. Codes R. & Regs. tit. 15 (“15 N.Y.C.R.R.”) § 8.2 (identifying discrete situations in which the road-test requirement may be waived). If DMV approves the application, it issues a new driver’s license; it does not reissue the original revoked one. See https://dmv.ny.gov/tickets/ suspensions-and-revocations. Most convictions for drunk-driving offenses result in the automatic revocation of a driver’s license, rather than a suspension. The most common kind of revocation is followed by a minimum waiting period during which the offender remains ineligible for a new license. VTL § 1193(2)(b). The length of this statutory waiting period—generally between six and eighteen months—depends on several factors, 3 Similar administrative consequences may also be imposed as a result of a finding by DMV that a driver suspected of drunk driving has refused to submit to a chemical test. See VTL §§ 1194(b)-(d). 6 including the offense of conviction and the number of prior offenses within various look-back periods. See VTL §§ 1193(2)(b)(1)-(2)(b)(8). In two limited circumstances, which do not apply in any of the cases before the Court but are nonetheless relevant to Matsen’s arguments (as well as those raised by the appellants in the related appeals before the Court), the statute renders an individual ineligible for relicensing at any time after revocation. The statute refers to this type of revocation as a “permanent revocation.” VTL § 1193(2)(b)(12). But the statute gives DMV discretion to waive the permanent revocation upon satisfaction of specified conditions after a fixed period of time, either five or eight years. Specifically, VTL §1193(2)(b)(12)(a) mandates permanent revocation for persons who among other things have three drunk-driving convictions within four years or four drunk-driving convictions within eight years. Nevertheless, if an individual’s license is revoked under this section, DMV “shall” waive the permanent revocation after five years if the specified conditions are met, “[p]rovided, however, that the commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored 7 pursuant to this item, in the interest of the public safety and welfare.” VTL § 1193(2)(b)(12)(b). And VTL § 1193(2)(b)(12)(d) mandates permanent revocation for drivers with still more serious driving records, namely four drunk-driving convictions within just four years or five drunk-driving convictions within eight years. For such individuals, DMV “may” waive the permanent revocation, but not before eight years have passed and the specified conditions are met; yet “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.” VTL § 1193(2)(b)(12)(e). 2. License Reissuance Once an individual’s license is revoked under any provision of VTL § 1193(2)(b) (and thus including a revocation under the permanent-revocation provisions in (2)(b)(12)), nothing in the statute entitles that individual to receive a new license ever again. Under a section captioned “Reissuance of licenses; restrictions,” the VTL provides that, unless otherwise specified, after the revocation of a 8 license under VTL § 1193(2)(b), “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).4 Similarly, VTL § 1194(2)(d)(1)(a) provides that after the revocation of a license based on a finding of refusal to submit to a chemical test, no new license shall be issued “except in the discretion of the commissioner.” Section 1193(2)(c) was added by the Legislature in 1988 as part of a larger effort to consolidate the definitions of drunk-driving offenses and accompanying penalties into a single article. See L. 1988, ch. 47 § 18. In 1993, the Legislature divided section 1193(2)(c) into three subparagraphs—(1), (2), and (3). As noted above, (c)(1) provides that, following a revocation for drunk driving, the granting of a new license lies within DMV’s discretion. This discretionary authority is then circumscribed by the two subparagraphs that follow, but only to the 4 And as noted above, if a permanent revocation is waived under VTL § 1193(2)(b)(12), DMV is expressly granted the discretion to refuse to relicense “in the interest of the public safety and welfare.” VTL §§ 1193(2)(b)(12)(b) & (12)(e). 9 extent of barring DMV from issuing a new license under certain circumstances.5 B. DMV Has Periodically Revisited its Regulatory Approach to the Problem of Recidivist Drunk Drivers For nearly four decades, DMV has promulgated regulations codified at 15 N.Y.C.R.R. Part 136 to address the post-revocation relicensing process. Entitled “Licensing or Relicensing After Revocation Action,” Part 136 was first promulgated in 1980. It informs the public of how DMV intends to exercise its discretion to decide relicensing applications. These regulations introduced the definition of a “problem driver” as someone who would be a presumed danger to himself and others if issued a new license. 15 N.Y.C.R.R. former § 136.1(b)(1). The 1980 regulations addressed the problem of recidivist drunk drivers in two ways. First, they specified that DMV would decline to issue a new license to an applicant who had a “history of abuse of alcohol or drugs . . . with insufficient evidence of rehabilitation.” 5 In particular, (c)(2) prohibits DMV from approving an application for an additional six months beyond the end of the otherwise applicable minimum waiting period where certain conditions apply. And (c)(3) prevents DMV from ever issuing a new license to an offender who has had two drunk-driving convictions resulting in physical injury to another person or to the driver. No statutory provision compels DMV to issue a new license to a person whose license has been revoked. 10 Id. former § 136.4(a)(2). A “history of abuse” was defined as two or more drunk-driving incidents over a ten-year period. Id. former § 136.1(b)(3). Second, the regulations provided that DMV would deny a new license to any applicant who had accumulated 25 or more negative safety points within the three years immediately preceding the application. Id. former § 136.4(a)(3).6 At the time, drunk-driving convictions could result in anywhere from five to fourteen points, depending on the circumstances. Id. former § 136.6(a)(8). And it was DMV’s practice when denying a new license based on a history of abuse to impose an “extended waiting period” of six months for each drunk-driving conviction, to run consecutively to each other but concurrently with any statutory minimum waiting period. (Record on Appeal [“R.”] at 270.) 1. Past Amendments to Part 136 DMV has revised Part 136 many times. In 1982, for instance, DMV created a new category of negative safety points for incidents of “driving during a period of alcohol related license suspension or revocation.” 15 N.Y.C.R.R. former § 136.6(a)(9)(a) (1982). In 2006, DMV added two new drunk-driving offenses to those that were eligible for 6 DMV assigned negative safety points to correspond to findings of certain VTL violations. 15 N.Y.C.R.R. former § 136.1(b)(6). 11 negative safety points: aggravated driving while intoxicated, and driving while ability impaired by the combined influence of drugs and alcohol. 15 N.Y.C.R.R. former §§ 136.6(a)(7)(ii), 136.9 (2006). In 2011, DMV redefined a “problem driver” to mean an applicant for a license who has a “series of convictions, incidents and/or accidents or has a medical or mental condition, which . . . upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways.” 15 N.Y.C.R.R. former § 136.1(b)(1) (2011). To determine whether an applicant was a problem driver under this provision, DMV would evaluate the applicant’s “entire driving history.” Id. If DMV found an applicant to be a problem driver, it would deny the application and decline to review a further application from the applicant for one year from the date of denial. 15 N.Y.C.R.R. former § 136.4(b). DMV promulgated the 2011 amendments out of concern that the previous regulations constrained staff to approve applications from otherwise dangerous drivers. It expected the amendments to result in more denials. 51 N.Y. Reg. 32 (Dec. 22, 2010). 12 2. Following the 2011 Amendments, DMV Reviews Part 136 Upon further review, DMV determined that the 2011 amendments remained inadequate to address the safety risks posed by recidivist drunk drivers. Statistics established that a small number of recidivist drunk drivers whose applications were approved after the minimum waiting periods for relicensing were responsible for a disproportionate number of accidents. (R. 271.) Drunk drivers in general continued to cause more than 300 deaths—29% of fatal crashes—and 6,000 injuries in New York every year. See 41 N.Y. Reg. 41 (March 13, 2013). Further, 28% of drunk-driving crashes resulting in injury involved a driver with three or more drunk-driving convictions. Id. at 43. And approximately 17,500 drivers who had three or more drunk-driving convictions had been involved in at least one crash resulting in death or injury. Id.7 These statistics convinced DMV that the 2011 amendments were inadequate to deal with the problem. Although those amendments demanded lifetime review of a driver’s record, they did not “specif[y] in detail the scope of such review.” Id. DMV thus resolved to strengthen 7 We are advised that this statistic covers the 25-year period preceding the adoption of the 2012 amendments to Part 136. 13 the regulations still further to keep recidivist drunk drivers off of New York’s roads “for an extended period of time and, in some cases, permanently.” (R. 271.) Anticipating that its subsequent amendments would affect pending applications of individuals with three or more drunk-driving convictions, DMV held those applications in abeyance beginning in mid-February 2012. 41 N.Y. Reg. at 46. DMV imposed this moratorium to ensure uniform treatment of drivers with similar records. Id. The moratorium lasted until September 2012, when DMV promulgated the 2012 amendments at issue here. Id. 3. The 2012 Amendments In September 2012, DMV adopted the amendments to Part 136 that are at issue in these appeals. They were adopted as emergency regulations, and became effective immediately. The 2012 amendments take a proportionate approach by imposing on a presumptive basis longer waiting periods on applicants with more drunk-driving convictions, and by adopting a presumptive lifetime denial for the most egregious recidivists. 14 The regulations define “alcohol- or drug-related driving conviction or incident” to include a conviction of driving while intoxicated or ability impaired under VTL § 1192, a zero-tolerance law adjudication under VTL § 1194−a, a conviction of an offense under the Penal Law for which a violation of VTL § 1192 is an essential element, or a finding of a refusal to submit to a chemical test. 15 N.Y.C.R.R. § 136.5(a)(1). If an applicant has accrued five or more such “drunk-driving convictions”8 over the course of a lifetime, DMV generally “shall deny the application.” Id. § 136.5(b)(1). Similarly, if the applicant has three or four such convictions and has committed a “serious driving offense,” as defined by 15 N.Y.C.R.R. § 136.5(a)(2), all within a 25-year look-back period,9 DMV will generally likewise deny the application. Id. § 136.5(b)(2). A “serious driving offense” consists of either (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) a conviction of two or more violations for which five or more points are assessed on a 8 For simplicity, “alcohol- or drug-related driving convictions or incidents” are referred to here as “drunk-driving convictions.” 9 The 25-year look-back period encompasses the 25-year period preceding the date of the offense that led to the applicant’s current revocation, and ending on and including the date of the revocable offense. 15 N.Y.C.R.R. § 136.5(a)(3). 15 violator’s driving record; or (iv) 20 or more points from any violations.10 Of particular relevance here is 15 N.Y.C.R.R. § 131.3, which assigns six points to any violation that involves speeding more than 20 but not more than 30 miles per hour over the limit. For applicants with three or four drunk-driving convictions within the 25-year look-back period but no “serious driving offense,” and who are currently revoked as the result of a drunk-driving conviction, DMV imposes a presumptive five-year waiting period, in addition to the minimum statutory waiting period imposed by the VTL (consisting of six, twelve, or eighteen months, as described above). After that regulatory waiting period expires, DMV may in its discretion grant a new relicensing application, but it does not generally do so unconditionally. Instead, DMV generally imposes an additional five-year period in which the applicant may obtain a license with an A2 10 Under 15 N.Y.C.R.R. § 131.2, every violation of the VTL or any local law, ordinance, rule or regulation “may be assigned a point value” by DMV which can lead to administrative action based on a motorist’s point total as specified in Part 131. 16 restriction,11 conditioned on the installation of an ignition interlock device (a device that prevents a vehicle from starting unless the driver’s breath alcohol level is below a certain level) on any vehicle that the applicant owns or operates. Id. § 136.5(b)(3). The 2012 amendments expressly reaffirm DMV’s long-standing position that Part 136 sets forth only general guidelines, and that applicants eligible for relicensing may request that DMV “deviate from the general policy” by establishing “unusual, extenuating and compelling circumstances” which warrant a departure from the general rules. Id. § 136.5(d).12 11 An A2 restriction is a form of restricted license defined at 15 N.Y.C.R.R. § 3.2(c)(4), subject to the driving restrictions set forth at 15 N.Y.C.R.R. § 135.9(b). It limits the operation of any vehicle to commuting to or from the holder’s place of employment or education; any medical appointments; any driver rehabilitation programs; and the school or place that the holder’s children attend or where they receive care. The A2 restriction is further subject to any conditions that DMV may impose under 15 N.Y.C.R.R. § 136.4(b), one of which is the use of an ignition interlock device. 12 If, however, the applicant is subject to the statutory lifetime denial in VTL § 1193(2)(c)(3), he cannot avail himself of this regulatory exception for special circumstances. 15 N.Y.C.R.R. §§ 136.5(b)(6), (d). 17 C. Matsen’s Recidivist Drunk Driving Results in a Third Revocation of Her Driver’s License In 1999, within months of receiving her driver’s license, Matsen committed her first drunk-driving offense, driving while ability impaired, and she was convicted of the offense in January 2000. (R. 192, 196.) That conviction required the revocation of her driver’s license. (R. 195.) Matsen subsequently applied for a new license—her second license—and DMV granted her application. In April 2004, Matsen drove 72 miles per hour in a 50 mile per hour zone and received six points on her driving record for having exceeded the speed limit by more than 20 miles per hour. (R. 195-196.) Matsen drove recklessly again just weeks later, in May 2004, when she drove drunk at a high speed. Based on this incident, she was convicted of driving while intoxicated. She also received another 6 points on her driving record for driving 59 miles hour in a 35 mile per hour zone. Her conviction for driving while intoxicated once again required the revocation of her license. (R. 195-196.) And as a result of the statutory waiting period, she was ineligible to apply for a new license for a year. (R. 194); see also VTL § 1192(2)(b)(3). 18 In 2007, Matsen applied for a third license. On her showing that she had completed an alcohol treatment program, DMV granted her application, but warned her of the consequences of re-offending: The evidence of driving and drinking contained in your past driving record demonstrates a need for you to exercise extreme care to avoid operating a motor vehicle in the future after having consumed any amount of alcoholic beverages. In this connection, it is anticipated that the knowledge you have gained while participating in an alcohol awareness program will assist in avoiding such a situation. However, should you incur any future violations relating to operating a motor vehicle after consumption of alcoholic beverages, the Department will have no recourse, but to apply severe restrictions to relicensing efforts. (R. 227.) Disregarding DMV’s warning, Matsen drove drunk a third time in December 2009. (R. 201.) Her license was suspended and then revoked based on her refusal to submit to a chemical test when requested by a police officer. (R. 201.) Moreover, the incident resulted in her conviction in 2010 of driving while intoxicated, Matsen’s third drunk-driving conviction. As a result, she received a superseding order of revocation rendering her ineligible to apply for a new license for another one-year period. (R. 201-202, 208; see also R. 275-276.) Matsen applied for a fourth license in March 2012. (R. 277.) DMV had by then undertaken review of its criteria for relicensing recidivist 19 drunk drivers and was holding all relicensing applications from applicants with three or more drunk-driving convictions in abeyance pending that review to ensure equal treatment of similarly situated applicants. (R. 277.) D. DMV Denies Matsen’s Relicensing Application Based on its Amended Regulations In November 2012, DMV denied Matsen’s fourth licensing application under newly amended Part 136. Based on her three drunk- driving convictions and her two six-point speeding violations—which together constituted a “serious driving offense” under 15 N.Y.C.R.R. § 136.5(a)(2)—she was subject to the presumptive lifetime denial in 15 N.Y.C.R.R. § 136.5(b)(2). (R. 190-191.) Matsen sought to present evidence of special circumstances based on the facts that (i) she had been denied an earlier relicensing application, allegedly as a result of erroneous information provided by her probation officer, and (ii) she needed a driver’s license for her job. (R. 181-182.) DMV denied her request for an exception. (R. 179.) Matsen took an administrative appeal, which DMV denied. (R. 129-156; 158-161.) 20 E. The Lower Courts Uphold the Validity of the Presumptive Lifetime Denial Matsen thereafter commenced this combined article 78 proceeding and declaratory judgment action to challenge the denial of her application. Matsen contended that the regulation presumptively denying her relicensing for life was invalid because it conflicted with various provisions of the VTL; violated the separation-of-powers doctrine; represented a retroactive, ex post facto penalty by considering her drunk-driving convictions that predated its promulgation; and relied on regulatory definitions that were arbitrary and capricious because they gave more lenient treatment to drivers with allegedly worse driving records than Matsen. (R. 55-56.) Matsen did not pursue a challenge to DMV’s denial of her application for a special circumstances exception. Supreme Court, Albany County (Ceresia, J.), dismissed the petition-complaint, rejecting Matsen’s challenges as either non- justiciable or lacking in merit. (R. 6-44.) Matsen appealed. The Appellate Division, Third Department, adhered to its earlier decisions in Matter of Carney and other cases upholding similar provisions of the 2012 amendments to Part 136 and 21 affirmed, with one justice dissenting. (R. 444-451.) The court held that, as a threshold matter, Matsen lacked standing to challenge any provision of amended Part 136 that was not implicated in the decision to deny her application. (R. 445.) The court also found that Matsen had not preserved her challenge to the definition of an “alcohol- or drug- related driving conviction or incident” in N.Y.C.R.R. § 136.5(a)(1) because she had not raised that argument on administrative appeal. (R. 446, n. 2.) Turning to the merits, the court concluded that the principles underlying its prior decisions upholding the 2012 amendments to Part 136 applied equally here, and limited its discussion to Matsen’s claim that 15 N.Y.C.R.R. § 136.5(a)(2) arbitrarily designates a conviction of two or more violations for which five or more points are assessed as a “serious driving offense.” The court rejected that claim. The court noted that, as a general matter, in developing its regulations, DMV relied on empirical data suggesting that recidivists with three or more drunk- driving convictions are involved in a disproportionate number of accidents and pose the highest risk to the general population. (R. 447.) As to whether two six-point speeding violations were serious enough to 22 be considered a “serious driving offense,” the court deferred to DMV’s judgment, because the matter implicated its expertise. (R. 447.) Although the dissenting justice agreed that DMV “may reasonably consider a traffic infraction as a ‘safety factor’ in gauging whether an applicant is entitled to relicensure” and described the issue as “one of degree,” he nonetheless considered that DMV had gone too far in grouping two five-point traffic violations under the same definition as more serious offenses, such as a fatal accident. (R. 450.) The majority disagreed, however, stating that the dissent’s view “appears to be based not upon a legal conclusion, but upon a value judgment that two five- point traffic violations and a fatal accident cannot be placed under the same definitional umbrella.” (R. 448.) The court instead found that DMV’s choice to include two violations of five or more points was within its discretion and “cannot be rendered irrational by the fact that the definition also includes other types of offenses with more serious practical consequences.” Indeed, the court reasoned, if the “least serious offense” is properly included in the definition, that only confirms that the remaining, more serious offenses were properly included, and thus, that the definition was not overly broad. (R. 449.) 23 Matsen moved in the Appellate Division for leave to appeal to this Court, and the Appellate Division granted the motion. (R. 443.) SUMMARY OF ARGUMENT Matsen seeks to challenge many of DMV’s amended relicensing regulations, but she has standing to challenge only the provisions applied in deciding her relicensing application, namely the presumptive lifetime denial and the definitions on which it relies. And Matsen has failed to demonstrate the invalidity of those provisions. As we demonstrate below, DMV’s regulation is consistent with the VTL and the separation-of-powers doctrine. Moreover, the regulation was not impermissibly retroactive in its application to Matsen and a rational basis underlies the definitions of the two terms she challenges. Indeed, all three Appellate Division departments to have considered challenges to this and similar rules have rejected them.13 This Court should do the same. 13 In addition to the Third Department, whose decisions are now before this Court, the Second and Fourth Departments have rejected such challenges. See Matter of McKevitt v. Fiala, 129 A.D.3d 730, 731 (2d Dep’t 2015); Matter of Shearer v. Fiala, 124 A.D.3d 1291, 1292 (4th Dep’t), lv. denied, 25 N.Y.3d 909 (2015); see also Matter of Dahlgren v. N.Y.S. Dep’t of Motor Vehicles, 124 A.D.3d 1400, 1402 (4th Dep’t), lv. denied, 25 N.Y.3d 906 (2015). 24 ARGUMENT POINT I MATSEN HAS STANDING TO CHALLENGE ONLY THE PRESUMPTIVE LIFETIME DENIAL To the extent Matsen challenges aspects of the 2012 regulatory amendments that played no role in DMV’s determination of her relicensing application, she lacks standing to do so. See Br. 35-36 (arguing that other regulations render VTL provisions ineffective); Br. 32-34 (arguing that 15 N.Y.C.R.R. § 136.10 conflicts with the VTL); Br. 9 (challenging Appellate Division’s reasoning in a different case). To have standing to challenge regulations, Matsen must establish that they caused her an “injury in fact.” Matter of Ass’n for a Better Long Island v. Dep’t of Envtl. Conservation, 23 N.Y.3d 1, 6 (2014). The in-fact injury requirement ensures that the party commencing the action has “an actual legal stake in the matter being adjudicated.” Soc’y of Plastics Indus. v. Cty. of Suffolk, 77 N.Y.2d 761, 772 (1991). This means that the challenged action actually has harmed or will harm her. N.Y. State Ass’n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 214 (2004). If she alleges future injury, the injury must be more than conjectural or speculative. Id. at 211. 25 DMV denied Matsen’s application because she had three drunk-driving convictions and a “serious driving offense,” a circumstance that implicated the presumptive lifetime denial in 15 N.Y.C.R.R. § 136.5(b)(2). Matsen thus has standing to challenge the validity of that regulatory provision and the definitions on which it relies. But the other provisions of DMV’s regulations that Matsen seeks to challenge here were irrelevant to the relicensing decision reviewed by Supreme Court, and thus Matsen was not injured by them. See Schulz v. N.Y. State Exec., 92 N.Y.2d 1, 11 (1999) (holding that the plaintiff had standing to raise one constitutional challenge, but lacked standing to raise a different constitutional challenge). Accordingly, the Court should confine its consideration in this appeal to the presumptive lifetime denial in 15 N.Y.C.R.R. § 136.5(b)(2) and the definitions on which it relies. POINT II THE PRESUMPTIVE LIFETIME DENIAL DOES NOT CONFLICT WITH THE VEHICLE AND TRAFFIC LAW There is no conflict between the VTL and the presumptive lifetime denial set forth in DMV’s regulations. To be sure, regulations that conflict with a statute are invalid. See Matter of Med. Soc’y of N.Y. v. 26 Serio, 100 N.Y.2d 854, 870-71 (2003); see also Riegert Apts. Corp. v. Planning Bd. of Town of Clarkson, 57 N.Y.2d 206, 213 (1982) (regulations were invalid “at least to the extent they conflict with the Town Law”). If a regulation is “out of harmony” with the applicable statute, “the statute must prevail.” Weiss v. City of N.Y., 95 N.Y.2d 1, 5 (2000). Where possible, however, courts read regulations “as intended to accomplish [their] purpose in harmony and not in conflict with” a statute. Bd. of Educ. of City Sch. Dist. of City of Lockport v. Licata, 42 N.Y.2d 815, 816 (1977) (upholding a regulation as “not necessarily inconsistent” with the statute). And such a reading is readily available here. A. The presumptive lifetime denial merely implements DMV’s discretionary authority to decide relicensing applications after the lapse of a mandatory period. There is no statutory conflict here, either explicit or implicit. Nothing in the VTL compels DMV to relicense an applicant who has accrued multiple drunk-driving convictions over her lifetime, merely because she is eligible to apply for relicensing. On the contrary, VTL § 1193(2)(c)(1) affirmatively preserves DMV’s discretion to decide post-revocation relicensing applications, providing expressly that, 27 except where relicensing is prohibited by statute, “no new license shall be issued after the expiration of the minimum period specified in [§ 1193(2)(b)], except in the discretion of the commissioner.” See also VTL § 1194(2)(d)(1)(a) (same for issuance of new license after a revocation based on a finding of refusal to submit to a chemical test). The VTL makes clear that revocation and relicensing differ in an important way. Although the statute refers to “minimum” periods following a revocation, they are just that—minimum waiting periods during which a revoked individual is not even eligible for relicensing. See VTL § 1193(2)(b). Once that period expires, the individual becomes eligible to apply, but she is not entitled to receive a new license. Rather, DMV must exercise its discretion to grant or deny the application. The statute thus does nothing to curb DMV’s authority to adopt a regulation presumptively denying relicensing applications after the expiration of the statutory minimum waiting period. And although Matsen argues that courts have repeatedly rejected executive efforts to expand the scope of the criminal drunk-driving laws, the presumptive lifetime denial at issue here does not implicate such laws, much less expand their scope. The cases cited by Matsen (Br. 41-42) involved attempts by 28 prosecutors to expansively interpret language defining the elements of criminal offenses or establishing the range of sentencing options, and are thus inapposite to DMV’s regulatory relicensing determinations. Nor is there anything unusual about DMV’s use of a regulation to inform the public about how it generally intends to exercise its discretionary authority. Indeed, in General Electric Capital Corp. v. Div. of Tax Appeals, 2 N.Y.3d 249, 254 (2004), this Court upheld a regulation that was similarly designed to inform the public about how the Department of Taxation and Finance would exercise a legislative grant of discretionary authority involving refund claims for sales taxes paid on financed purchases. The statute at issue there granted the agency discretion to refund sales taxes paid on uncollectible debts to any class of applicants. On this authority, the agency promulgated a regulation authorizing refunds to certain classes of creditors, but not a third-party creditor to whom a debt had been assigned. The Court concluded that, in light of the discretion given to the agency by the statute, the agency had reasonably used a regulation to announce the circumstances in which it would provide refunds, and thus its regulation was proper. Id. at 254-55. 29 So too here, DMV’s regulations explain how the agency generally intends to exercise its statutory discretion with regard to applicants with three or four drunk-driving convictions and a “serious driving offense,” thereby ensuring that similarly situated applicants receive equal treatment. And here, DMV has not even promulgated a rigid rule, but rather has expressly reserved its authority to depart from its general position on the basis of special circumstances. See 15 N.Y.C.R.R. § 136.5(d). To be sure, the Legislature has restricted DMV’s discretionary authority over relicensing by forbidding it to grant new licenses under certain circumstances. For instance, the VTL forbids DMV to issue a new license to an applicant whose drunk driving has twice resulted in physical injury. See VTL § 1193(2)(c)(3). But there is no circumstance in which the Legislature has forbidden DMV to deny a new license to an applicant whose prior license was revoked for drunk driving. Matsen nonetheless argues that the presumptive lifetime denial conflicts with the VTL in two ways. She is mistaken. 30 B. The regulatory presumptive lifetime denial does not conflict with the permanent-revocation scheme. Contrary to Matsen’s argument (Br. 24-31), the permanent revocation scheme in VTL § 1193(2)(b)(12) does not curb the Commissioner’s discretion to presumptively deny relicensing applications. As previously noted, see supra at 6-7, VTL § 1193(2)(b)(12) addresses limited circumstances warranting what it labels as the “permanent revocation” of a license in the sense that it renders an individual ineligible for relicensing at any time. Sections 1193(2)(b)(12)(b) and (12)(e) then provide for the waiver of the “permanent revocation” after five or eight years, respectively, upon the satisfaction of specified conditions. Even then, however, the Commissioner may nonetheless refuse to restore a license “in the interest of the public safety and welfare.” Id. Matsen insists that these provisions reflect a legislative determination that “an individual who does not fall within the ambit of VTL § 1193(2)(b)(12) cannot be permanently revoked” within the meaning of the statute (Br. 31). And from this premise, she argues (Br. 12, 30-31) that, while she is not covered by the permanent- revocation provisions, the Legislature necessarily did not intend to give 31 still less favorable treatment (the permanent denial of relicensing) to individuals like her, whose three drunk-driving convictions occurred over a longer period of time. Her argument is fundamentally misguided for two reasons. First, even assuming that VTL § 1193(2)(b)(12) limits DMV’s discretionary relicensing authority to some degree, that would not aid Matsen. This subsection does not represent a “detailed and comprehensive recidivist DWI offender statute,” as Matsen repeatedly claims (Br. 12, 26, 38). It addresses only a narrow group of recidivists. And it is implausible to think that the Legislature would use a permanent-revocation scheme addressed to such a narrow group of recidivists to curb DMV’s relicensing discretion under VTL §§ 1193(2)(c)(1) and 1194(2)(d)(1)(a) as to all other recidivists, including Matsen. If the Legislature had intended to impose a more far- reaching limitation, it would have so indicated. Second, and in any event, the permanent-revocation provisions of VTL § 1193(2)(b)(12) do not limit DMV’s discretionary relicensing authority even as to the narrow group of recidivists that they cover, let alone entitle such recidivists to relicensure. To the contrary, they 32 expressly authorize DMV to deny relicensure in the interest of public safety and welfare. In arguing otherwise (Br. 30), Matsen confuses DMV’s authority to waive an otherwise-applicable permanent revocation with its authority to grant a relicensing application. A waiver only lifts the statutory revocation so as to permit DMV to consider the offender’s relicensing application in its discretion. Although Matsen appears to equate the two terms, courts must “give effect and meaning to the entire statute and every part and word thereof.” Friedman v. Conn. Gen. Life Ins. Co., 9 N.Y.3d 105, 115 (2007) (quotation and alterations omitted). While VTL § 1193(2)(b)(12)(b) and (12)(e) authorize DMV to waive a permanent revocation upon an applicant’s satisfaction of specified conditions—and indeed in the case of (12)(b) appear to require it to do so—they nonetheless authorize DMV to “refuse to restore a license” to applicants if doing so would be “in the interest of the public safety and welfare.” Giving meaning to each word in these permanent- revocation provisions, DMV may only “restore” an applicant’s driving privilege after it “waives” ineligibility. In light of this distinction, 33 refusal to restore driving privileges does not, as Matsen insists (Br. 35), render the waiver provision in VTL § 1193(2)(b)(12)(b) meaningless.14 And as to the restoration of a license, as noted above, this decision is committed to DMV’s discretion. Under the plain language of VTL § 1193(2)(c)(1), DMV’s discretion over relicensing extends to all revocations under VTL § 1193(2)(b)—even permanent revocations under subparagraph (2)(b)(12) where the driver has met the conditions necessary for a waiver of the permanent revocation. Matsen also contends (Br. 37-38) that DMV’s general discretionary authority to decide relicensing applications was silently superseded by the subsequently enacted permanent-revocation provisions. But an earlier enactment is not impliedly modified by a later one if “by any fair construction, a reasonable field of operation can be found for both statutes[.]” Consol. Edison Co. of N.Y., Inc. v. Dep’t of Envtl. Conservation, 71 N.Y.2d 186, 195 (1988) Fairly interpreted, 14 Similarly, 15 N.Y.C.R.R. § 136.5(b)(2)’s presumptive lifetime denial does not render meaningless DMV’s authority under VTL § 1193(2)(b)(12)(c) to adopt rules governing the grant of conditional or restricted licenses to individuals permanently revoked under (2)(b)(12)(a) upon the expiration of the statutory minimum period of three years. To the contrary, all the Legislature has done in (2)(b)(12)(c) is give DMV a discretionary authority that it may or may not chose to exercise. (Br. 36.) 34 VTL § 1193(2)(b)(12) leaves intact the general discretionary authority DMV enjoys to decide an application for relicensing under VTL §§ 1193(2)(c)(1) and 1194(2)(d)(1)(a), regardless of whether DMV must waive a permanent revocation. This Court should decline Matsen’s invitation to adopt an interpretation of the permanent revocation provisions that would create an unnecessary conflict with VTL §§ 1193(2)(c)(1) and 1194(2)(d)(1)(a). Even if waiver were synonymous with license restoration, waiver of a permanent revocation is not obligatory where DMV concludes that it would be contrary to public safety. Rather, consistent with VTL §§ 1193(2)(c)(1) and 1194(2)(d)(1)(a)’s broad grant of relicensing discretion, VTL § 1193(2)(b)(12) affirms that DMV may refuse to restore a license “in the interest of the public safety and welfare.” DMV would thus be entitled to deny both waiver and relicensing to a permanently revoked applicant who has otherwise satisfied the statutory conditions for waiver based on its judgment that restoring the applicant’s license would not serve the interest of public safety and welfare. In short, DMV’s regulation presumptively denying relicensing to applicants like Matsen does not conflict with the permanent-revocation 35 provisions of the VTL. In those provisions, the Legislature established conditions for the waiver of what it called a “permanent revocation,” but left DMV’s relicensing discretion intact. C. The presumptive lifetime denial does not conflict with VTL § 1193(2)(c)(3). Matsen also argues (Br. 36) that DMV’s regulation presumptively denying relicensing for life implicitly conflicts with VTL § 1193(2)(c)(3). As noted above, see supra at 9 n.5, while VTL § 1193(2)(c)(1) generally grants DMV discretion to decide relicensing applications, that discretion is restricted by the subparagraphs that follow, including (c)(3), which prevents DMV from ever issuing a new license to an offender who has had two drunk-driving convictions resulting in physical injury to another person or to the driver. Relying on this provision, Matsen argues that if the Legislature had intended DMV to deny relicensing for life to those with a fixed number of drunk-driving convictions (in her case, three) and also a “serious driving offense,” it would have said so in this provision. Matsen’s argument is misguided. The Legislature’s identification of a single group as too dangerous ever to be relicensed does not establish a legislative intent to affirmatively require DMV to relicense 36 all applicants outside that group once they become statutorily eligible to apply. To the contrary, the Legislature specifically granted DMV discretion to decide the relicensing applications of such individuals in VTL §§ 1193(2)(c)(1) and 1194(2)(d)(1)(a). Moreover, unlike the lifetime denial in VTL § 1193(2)(c)(3), the regulatory lifetime denial is only presumptive, allowing for exceptions upon a showing of special circumstances. Thus no conflict exists with VTL § 1193(2)(c)(3). D. The 25-year look-back period does not conflict with any statutory look-back period. The difference between revocation and relicensing dooms Matsens’s argument (Br. 46-48) that the 25-year regulatory look-back period in 15 N.Y.C.R.R. § 136.5(b)(2) cannot be reconciled with shorter look-back periods in the VTL and the Penal Law. The regulatory look- back period guides the application of DMV’s relicensing rules, which only become relevant once an individual becomes eligible to apply for relicensing after a statutory period of revocation has expired. See 15 N.Y.C.R.R. § 136.5(b)(2). The statutory look-back periods that Matsen cites (Br. 46-47) serve different purposes: they are either used to calculate the minimum waiting period before an individual becomes eligible for relicensing or to define the elements of criminal drunk- 37 driving offenses. As the Fourth Department aptly stated in rejecting the precise argument that Matsen makes here, “the look-back periods in the Vehicle and Traffic Law to which petitioner refers do not control here, inasmuch as they are inapplicable, set only minimum revocation periods, or concern the enhancement of criminal charges and punishments.” Matter of Shearer, 2015 WL 25589 at *1. Nor is the Legislature’s use of shorter, more conservative look-back periods to define the elements of criminal offenses at all surprising given the gravity of the consequences of a criminal conviction. Accordingly, Matsen has not demonstrated that the presumptive lifetime denial violates any statutory look-back periods. POINT III DMV’S ADOPTION OF THE PRESUMPTIVE LIFETIME DENIAL COMPLIES WITH THE SEPARATION-OF-POWERS DOCTRINE The Legislature delegated to DMV discretionary authority to grant or deny applications for relicensing after revocation, and DMV lawfully acted within that authority in promulgating a regulation presumptively declining to ever again relicense applicants with three or four drunk-driving convictions and a “serious driving offense.” These 38 provisions inform the public about how DMV generally intends to exercise its statutory discretion with regard to the recidivists they cover, thereby clarifying the circumstances in which DMV will presumptively consider applicants too dangerous to ever receive a new license. And DMV did not abdicate its statutory responsibility in promulgating this regulation; it simply adopted a presumptively applicable standard to ensure consistent decision-making. New York’s Constitution confers legislative power solely on the Senate and Assembly. N.Y. Const. art. III § 1. Under the separation- of-powers doctrine, the Legislature must make the “critical policy decisions, while the executive branch’s responsibility is to implement those policies.” Bourquin v. Cuomo, 85 N.Y.2d 781, 788 (1995). An agency thus offends the doctrine if it crosses the “difficult-to-define line between administrative rule-making and legislative policy-making.” Boreali v. Axelrod, 72 N.Y.2d 1, 10 (1987). A. DMV stayed within its regulatory role. This Court has described four coalescing circumstances establishing that an agency has crossed the line into legislative policymaking, namely that the agency has: (1) resolved a problem by 39 making its own “value judgments entailing difficult and complex choices between broad policy goals,” rather than simply balancing costs and benefits under existing standards; (2) written on a “clean slate,” rather than filling in the details of a broad policy set by the Legislature; (3) taken it upon itself to regulate matters on which the Legislature has tried unsuccessfully to set policy; and (4) acted outside its area of expertise to develop the challenged regulation. NYC C.L.A.S.H. v. Office of Parks, Recreation & Historic Preservation, 27 N.Y.3d 174, 178-80 (2016) (describing Boreali). These circumstances are not factors that courts apply rigidly or weigh equally, however. Id. Rather, they are treated as overlapping, closely related considerations that, taken together, will support a conclusion that an agency has crossed the line. Id. Here, all four considerations favor the conclusion that the presumptive lifetime denial represents permissible, interstitial rule-making. 1. The presumptive lifetime denial furthers DMV’s legislative mission. First, in adopting the presumptive lifetime denial, DMV stayed within its statutory mandate to perform the particular task assigned: to decide post-revocation applications for relicensing. See 40 VTL §§ 1193(2)(c)(1); 1194(2)(d)(1)(a). Weighing the public’s interest in being protected from repeat drunk drivers with the individual’s interest in relicensing, DMV has determined that applicants with three or four drunk-driving convictions and a “serious driving offense” are typically too dangerous to relicense, even after their statutory waiting periods expire. Unlike the smoking ban this Court struck down in Boreali— which applied broadly and carved out exceptions based on economic and social concerns outside the agency’s statutory mandate, see 71 N.Y.2d at 12—the presumptive lifetime denial hews tightly to DMV’s mission. In devising standards to perform a function the Legislature directed it to perform, DMV is not acting on its own unanchored notions of “sound public policy.” Id. at 11. As to DMV’s decision to formalize its judgments in duly promulgated regulations, the Legislature has authorized DMV to pass regulations relating to the issuance of driver’s licenses. See VTL § 508. Given the connection between the regulations at issue here and DMV’s statutorily mandated function, the Legislature did not have to specify what weight to give an individual’s history of drunk driving in deciding an application for relicensing. “As long as the legislature makes the 41 basic policy choices, the legislation need not be detailed or precise as to the agency’s role.” Greater N.Y. Taxi Ass’n v. N.Y. City Taxi & Limousine Comm’n, 25 N.Y.3d 600, 609 (2015). Here, the Legislature made the policy choice to revoke licenses upon most drunk-driving convictions, to establish a post-revocation relicensing process, and to delegate to DMV discretion to decide when and under what circumstances to grant relicensing applications. Because uniform standards facilitate consistent decision-making, the authority to set such standards by regulation is “required by necessary implication.” See Consol. Edison, 71 N.Y.2d at 194. (recognizing that Legislature’s goal of preventing oil spills could not be accomplished without the power to regulate petroleum pollution). Indeed, DMV has been using its regulatory authority to set standards for post-revocation relicensing for 36 years. Part 136 was first promulgated in 1980, and since that time it has put the public on notice that an applicant’s history of drunk driving and traffic infractions will be considered in the relicensing process. See 15 N.Y.C.R.R. former 42 §§ 136.4, 136.6.15 And the Legislature has taken no action to change DMV’s long-standing practice, a fact that provides persuasive evidence that the Legislature approves of DMV’s exercise of regulatory authority within the sphere of relicensing. See Med. Soc’y, 100 N.Y.2d at 866; see also Greater N.Y. Taxi Ass’n, 25 N.Y.3d at 611 (holding that agency was not writing on a clean slate where it has always regulated the industry “as to almost every detail of operation”). There is no merit to Matsen’s assertion (Br. 20) that DMV engaged in the kind of policymaking that was rejected in 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). In Hispanic Chambers of Commerce, this Court determined that New York City’s public-health agency usurped legislative power when it barred some businesses from selling soda in containers exceeding a certain size. The Court noted that the city agency weighed interests 15 Part 136 also complements DMV’s long-standing regulation of the licensing process in general. See, e.g., 15 N.Y.C.R.R. Part 3 (classifying driver’s licenses and establishing procedures to apply for them); id. Part 131 (creating the point system and providing for administrative action when a driver accumulates too many points). 43 outside its statutory prerogative to reach its own judgment on a complex, hotly contested matter of social policy. Id. at 698-99. This Court’s decision in Hispanic Chambers of Commerce is not implicated here for three reasons. First, that decision does not, as Matsen claims (Br. 20), preclude agencies from choosing among competing interests. The law is clear that where the Legislature has authorized an agency to regulate within a field, an agency may balance costs and benefits as they affect interests within that field. Greater N.Y. Taxi Ass’n, 25 N.Y.3d at 610-11. Second, this case does not implicate the concern expressed in Boreali and Hispanic Chambers of Commerce about an agency’s creation of regulatory exceptions based on factors outside its delegated sphere. See C.L.A.S.H., 27 N.Y.3d at 181 n.5. DMV has not ventured outside the realm of highway safety, a field that is well within its prerogative. And finally, this case does not affect personal autonomy as did the oversize soda ban at issue in Hispanic Chambers of Commerce. Although Matsen invokes an autonomy interest in driving (Br. 20, 23), the presumptive lifetime denial protects the public against drunk driving, which the Legislature has outlawed. To be sure, recidivists 44 have an interest in relicensing. But DMV is entitled to weigh that interest against the public’s interest in highway safety and the threat to that interest from relicensing a recidivist drunk driver. As this Court recently said, “The exercise of an individual right is not limitless. [The Court] may measure its limits against the damage it does to our neighbors.” C.L.A.S.H., 27 N.Y.3d at 176. Matsen attempts (Br. 22-23) to distinguish C.L.A.S.H. on the ground that the burden imposed by a lifetime denial of a driver’s license far exceeds the inconvenience of the limited smoking restrictions at issue there. But the burden imposed by the challenged regulation is only one side of the equation. The Court in C.L.A.S.H. allowed the agency to weigh this burden against the nature of the harm that the regulation sought to prevent. Although a presumptive lifetime denial of a license may burden the individuals that it affects more than limited smoking restrictions, the harm that it addresses—recidivist drunk driving—poses a far more direct and significant threat to public welfare than temporary exposure to secondhand smoke. DMV thus acted consistently with C.L.A.S.H. in presumptively denying for life a new license to those individuals whose multiple drunk-driving convictions 45 and other offenses demonstrate their persistent disregard for the safety of others. 2. DMV merely filled in the details of the Legislature’s policy regarding drunk driving. DMV’s regulation governing presumptive lifetime denial of relicensing implemented a well-established legislative policy against drunk driving. This situation stands in sharp contrast to the regulation at issue in Boreali, which was written on a “clean slate” in view of the unresolved public debate about secondhand smoke that prevailed in 1987, when the regulation in that case was promulgated. 71 N.Y.2d at 13. As this Court observed in C.L.A.S.H., 27 N.Y.3d at 182, by 2016 “the legislature has spoken against secondhand smoke” (emphasis in original), although it had not done so at the time of Boreali. The legislative policy on drunk driving is unequivocal: drunk driving is dangerous, it needs to be prevented, and one way to prevent it is to keep drunk drivers off the roads. See Pringle v. Wolfe, 88 N.Y.2d 426, 429-30 (1996). In particular, the Legislature has set forth its policy concerning drunk driving throughout article 31 of the VTL. Section 1192, for instance, criminalizes drunk driving. Section 1193 alerts drunk drivers 46 that, aside from criminal consequences, they can expect the loss of their driving privileges through suspension or revocation. And sections 1193 and 1194 further alert persons whose licenses have been revoked based on a drunk driving conviction or refusal to submit to a chemical test that, if and when they become eligible to apply for a new license, their applications will be decided as a matter of DMV’s discretion. Using these principles, DMV had the power to “fill in the interstices in the legislative product by prescribing rules and regulations consistent” with the statutes. Med. Soc’y, 100 N.Y.2d at 865. Part 136 is a model of interstitial rulemaking. Where the statute is silent, DMV stepped in to inform the public how it generally intends to exercise its statutory discretion, thereby assuring more consistent decision-making. To be sure, the Legislature has not instructed DMV on how it should decide applications for relicensing. But the Legislature did not need to supply “rigid marching orders.” Citizens for an Orderly Energy Pol’y, Inc. v. Cuomo, 78 N.Y.2d 398, 410 (1991). It is enough that the Legislature imposed the requirement that, to obtain a new license, revoked offenders must apply to DMV, and gave DMV considerable 47 discretion in acting on such applications. See VTL §§ 1193(2)(c)(1); 1194(2)(d)(1)(a). In many ways, the regulatory provisions at issue here parallel the regulation the Court addressed in Rent Stabilization Assoc. of New York City v. Higgins, 83 N.Y.2d 156, 165 (1993), a regulation that enlarged the class of family members who could succeed to a rent-regulated apartment. Just as the Legislature first set the general policy of protecting renters from eviction, see id. at 165, the Legislature here set the policy that a revoked applicant must apply to DMV for a new license. And just as the agency in Rent Stabilization filled in the interstices of its mandate by determining which persons were most in need of the protections the Legislature saw fit to create, see id. at 170, DMV filled in the interstices to address how it would review and decide the applications the Legislature directed it to review and decide. 3. The Legislature has not substantially debated the relicensing of recidivist drunk drivers. As to the third Boreali factor, the Legislature has not given “substantial public debate,” 71 N.Y.2d at 13, to the post-revocation relicensing of recidivist drunk drivers. 48 As in Acevedo and Carney, Matsen repeates a laundry list of unenacted “tough on DWI” bills in support of her assertion that the Legislature has determined to set policy on applications for relicensing. (Br. 44.) Although Matsen does not explain the content of the proposed bills on which she relies, in fact only three of them would have affected post-revocation relicensing: A1933/S6287, A4346 and S739. Of those, two died in committee, and the third, S739, passed the Senate, but had no Assembly companion and promptly died upon its arrival there. This Court has repeatedly noted that there are many possible explanations for the failure of a bill, and it is dangerous to draw inferences from any such failures. See, e.g., Matter of Oswald N., 87 N.Y.2d 98, 103 n.1 (1995). Indeed, in Rent Stabilization, the Court held that the failure of twenty-seven bills relating to rent-succession rights was not enough to show that the Legislature intended to preclude an administrative agency from acting in the field. See 83 N.Y.2d at 170. The failure of three bills can fare no better. Accord C.L.A.S.H., 27 N.Y.3d at 183 (one legislative chamber’s passage of three bills on a subject matter did not establish that Legislature wished to preclude agency from regulating that matter). 49 Matsen further contends (Br. 43-44) that the Legislature has passed laws relating to drunk driving in general on so many occasions as to signal its intent to address the issue entirely by legislation. But “the mere fact that the Legislature has enacted specific legislation in a particular field does not necessarily lead to the conclusion that broader agency regulation of the same field is foreclosed.” Consol. Edison, 71 N.Y.2d at 193. By leaving DMV’s broad discretion over relicensing applications intact while continuing to find other ways to strengthen laws against drunk driving, the Legislature has signaled its intent to defer to DMV’s expertise as to which applicants are qualified to receive new licenses. See Med. Soc’y, 100 N.Y.2d at 865-66. Striking the regulatory provisions at issue here would thwart that intent. 4. The presumptive lifetime denial reflects DMV’s expertise. Finally, DMV acted squarely within its expertise in devising the presumptive lifetime denial. Boreali, 71 N.Y.2d at 14. Although Matsen argues (Br. 49) that no special expertise or technical competence was necessary to develop the amendments to Part 136, these amendments rest on data highlighting the acute risk that repeat drunk drivers pose to the public. As previously noted, see supra at 12, over a 25-year 50 period, some 17,500 drivers with three or more drunk-driving convictions have been involved in crashes that caused death or injury. And those same drivers also caused 28% of all such crashes. The collection and evaluation of highway safety data fall well within DMV’s purview. See VTL § 216-a. So does the adoption of measures that will best address the problem of recidivist drunk driving documented by the data. See C.L.A.S.H., 27 N.Y.3d at 184-85 (agency based regulation on concerns about the enjoyment of public parks within the realm of its expertise); Rent Stabilization, 83 N.Y.2d at 170 (noting that in defining groups who need noneviction protection, the Division of Housing acted within its competence). Thus, this factor favors DMV as well. POINT IV DMV LAWFULLY CONSIDERED DRUNK-DRIVING CONVICTIONS AND SPEEDING VIOLATIONS THAT MATSEN INCURRED BEFORE THE 2012 AMENDMENTS WERE PROMULGATED This Court should also reject Matsen’s claim (Br. 52-53)—a claim similarly raised in the Acevedo and Carney appeals—that DMV improperly applied the 2012 amendments retroactively to her by considering her drunk-driving convictions and speeding violations, all of which predate the amendments. These arguments are misplaced. 51 DMV’s consideration of conduct that occurred before the promulgation of the 2012 amendments did not constitute a retroactive application of those amendments. This is so for two related reasons. First, the amendments did not take away Matsen’s existing license on the basis of past conduct. They only affected how DMV would thereafter decide her application for a new license. A law is not retroactive “when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.” Matter of Forti v. State Ethics Comm’n, 75 N.Y.2d 596, 609 (1990). From Matsen’s perspective, when she applied for relicensing, her potential receipt of a new driver’s license was necessarily a future transaction. The regulation was thus applied prospectively, even if it considered antecedent events. The presumptive lifetime denial is no more retroactive than was the ban this Court addressed in Matter of St. Clair Nation v. City of N.Y., 14 N.Y.3d 452 (2010). There, an engineer had engaged in improprieties in 2004 and 2005. Relying on a 2007 regulation (since repealed), the city banned the engineer from filing any papers with the building department going forward. The engineer argued that the 2007 52 regulation was retroactive because it was enacted after his 2004 and 2005 improprieties. Id. at 455. Rejecting that argument, the Court held that the regulation impacted only the engineer’s ability to “file papers with [the building department] for a future period of time” and therefore could be predicated on antecedent events. Id. at 457; see also Matter of Miller v. DeBuono, 90 N.Y.2d 783, 790 (1997) (upholding application to a nurse of regulation banning future employment on the basis of patient abuse, where the acts of abuse were committed before regulation’s promulgation). DMV’s consideration of Matsen’s drunk- driving convictions and speeding violations that predate the promulgation of the rule for purposes of considering her current relicensing application was similarly lawful. Second, and relatedly, DMV’s application of the presumptive lifetime denial was not retroactive because it did not impair any vested rights. A law is retroactive if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” I.N.S. v. St. Cyr, 533 U.S. 289, 321 (2001). To be sure, individuals have a vested right in a driver’s license insofar 53 as the state may not take away a license based on past conduct without due process. Pringle, 88 N.Y.2d at 431 (upholding law requiring individuals arrested for certain drunk-driving offenses to have their driver’s licenses suspended pending prosecution). But this right does not extend to the issuance of a new driver’s license to someone who, like Matsen, does not presently possess one. For vested-right purposes, “there is a human difference between losing what one has and not getting what one wants.” Greenholtz v. Inmates of Ne. Penal and Corr. Complex, 442 U.S. 1, 10 (1979) (quotation omitted). Accordingly, due process considerations do not restrict the conditions under which states may issue licenses in the first place. Bell v. Burson, 402 U.S. 535, 539 (1971) (“if the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment”). Likewise here, Matsen has no vested right to receive a new license. To the extent Matsen argues, as she did in the courts below, that DMV’s application of the 2012 amendments to her violated her rights under the Ex Post Facto Clause, that argument lacks merit. 54 DMV’s consideration of Matsen’s pre-2012 drunk-driving convictions and speeding violations does not violate her rights under the Ex Post Facto Clause because the presumptive lifetime denial is not punitive. Rather, it serves a prospective regulatory purpose. See Matter of Kellogg v. Travis, 100 N.Y.2d 407, 410 (2003) (rejecting ex post facto challenge to statute requiring felons to submit sample to DNA database based on convictions that predated statute); Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997) (same as to statute requiring sex offender registration based on convictions that predated the statute). As this Court has said, the revocation of a driver’s license is not punitive in nature, but has as its aim the “chastening of the errant motorist, and, more importantly, the protection of the public from such a dangerous individual.” Matter of Barnes v. Tofany, 27 N.Y.2d 74, 78 (1970). If a revocation is not punitive, then neither is a refusal to issue a new license. Thus, the application of the presumptive lifetime denial to Matsen does not violate her rights under the Ex Post Facto Clause. Finally, Matsen’s complaint about fairness is equally misplaced. She asserts that DMV’s pre-2012 regulations gave rise to the expectation that she would receive a new license every time she 55 re-offended, making it “fundamentally unfair” (Br. 52) to upset her expectations by denying her a new license. But DMV has always had discretion to deny an application for a new license, whatever its past practices may have been. And these practices were never meant to reassure recidivist drunk drivers that they could always count on obtaining a new license. Indeed, DMV expressly warned Matsen to the contrary when it issued her third license. Having ignored the warning and driven drunk a third time, Matsen had no legitimate expectation that DMV would license her yet again. POINT V A RATIONAL BASIS SUPPORTS THE REGULATORY DEFINITIONS USED BY THE PRESUMPTIVE LIFETIME DENIAL Finally, Matsen argues that the definitions of a “serious driving offense” and an “alcohol-or drug-related driving conviction or incident” are arbitrary and capricious. She is mistaken. Aside from being consistent with a delegation of power or a statutory framework, a regulation must also be rational. See Matter of Levine v. Whalen, 39 N.Y.2d 510, 518 (1976). A party challenging a regulation has the burden to demonstrate that the regulation is arbitrary. Matter of Consolation Nursing Home, Inc. v. Comm’r of N.Y. 56 State Dep’t of Health, 85 N.Y.2d 326, 331 (1995). Moreover, when an agency acts in an area of expertise, courts generally defer to its judgment. Id. Thus, to invalidate a regulation, the challenging party must demonstrate that its promulgation is almost wholly lacking in reason. Kuppersmith v. Dowling, 93 N.Y.2d 90, 96 (1999). This “limiting” standard requires courts to “scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case.” Id. Matsen fails to carry her burden to demonstrate that the two regulatory terms at issue are almost wholly lacking in reason. A. The definition of a “serious driving offense” has a rational basis. Matsen contends that the definition of a “serious driving offense” is irrational in two ways. First, she asserts (Br. 6) that two traffic violations for which five or more points are assessed on the applicant’s driving record—in Matsen’s case, two six-point speeding violations— should not be considered serious enough to qualify as a “serious driving offense.” She argues (Br. 6-7) that it is irrational for her two six-point speeding violations to make the difference between being subject to DMV’s regulatory five-year waiting and restricted-license periods, as 57 opposed to its presumptive lifetime denial. And Matsen notes (Br. 7) that applicants with four drunk-driving convictions, yet no “serious driving offense,” are only subject to the five-year waiting and restricted- license periods, while applicants like her, with one fewer drunk-driving conviction, are subject to the presumptive lifetime denial because they also have two six-point speeding violations. Matsen has not shown the definition of a “serious driving offense” to be invalid. She does not dispute (Br. 11, n. 16) that DMV may reasonably consider an individual’s history of speeding or other traffic violations in deciding whether to relicense that individual after a revocation for drunk driving. Thus, as Matsen appears to recognize, the issue comes down to whether DMV was permitted to draw the line where it did. And as the Appellate Division stated, what weight to give an accumulation of traffic violations or other offenses that do not involve drunk driving but that otherwise indicate persistently careless driving is a matter of discretion within DMV’s sphere of expertise. Indeed, even the dissenting justice considered the issue raised by Matsen’s challenge to the definition of a “serious driving offense” to be “one of degree.” (R. 450.) 58 Exercises in line-drawing are accorded a high degree of deference. See Bay Park Center for Nursing and Rehabilitation, LLC v. Shah, 111 A.D.3d 1227, 1230 (3d Dep’t 2013) (exercises in line-drawing do not require “mathematical precision” and will be upheld unless they are “very wide of any reasonable mark”). See generally Montgomery v. Daniels, 38 N.Y.2d 41, 65 (1975) (quoting Justice Holmes on judicial deference accorded to line-drawing). And contrary to Matsen’s claim (Br. 11, n. 16), agencies must routinely set thresholds and draw lines. See, e.g., Schneider v. Sobol, 76 N.Y.2d 309, 316 (1990) (upholding administrative line-drawing); Matter of Adirondack Health-Uihlein Living Center v. Shah, 125 A.D.3d 1366, 1370 (4th Dep’t) (same), lv. denied, 128 A.D.3d 1425 (2015). In this case, DMV did not abuse its discretion by treating two six-point speeding violations, both involving speeding in excess of 20 miles per hour over the limit, as serious enough to count collectively as a “serious driving offense.” In New York, speeding more than 20 miles per hour over the limit is a traffic infraction punishable by fines where adjudicated by an administrative tribunal. See VTL §§ 155, 225. Where adjudicated by a local court, such an offense may subject a person to up 59 to fifteen days of imprisonment. See VTL §§ 1180(b), 1180(h)(1)(ii). And the danger that speeding poses to highway safety is no secret. DMV’s 2014 Summary of Speed-Related Motor Vehicle Crashes16 reports that speeding was a factor that year in 280 fatal crashes, 12,323 non-fatal crashes involving personal injury, and 15,968 crashes involving property damage. In light of the dangers posed by speeding, DMV could rationally conclude that two six-point speeding violations were at least if not more indicative of future reckless driving as a single drunk-driving conviction. See Matter of Scism v. Fiala, 122 A.D.3d 1197, 1199 (3d Dep’t 2014) (DMV may rationally consider an accumulation of 20 traffic violation points over a 25-year period); Matter of Shearer, 124 A.D.3d at 1292 (same). To the extent that Matsen complains about the weight that DMV gave cell phone and texting violations (Br. 6), she lacks standing to bring such a challenge because she did not have either type of violation. 16 The report is available at https://dmv.ny.gov/statistic/2014-speed- relatedcrashsummary.pdf. A copy is attached here for the Court’s convenience. 60 Second, Matsen contends (Br. 7-8) that the definition of a “serious driving offense” is under-inclusive, and thus arbitrary and capricious, because it omits the offenses of first-degree aggravated unlicensed operation of a motor vehicle, VTL § 511(3), and fleeing the scene of an accident resulting in serious physical injury, VTL § 600(2). Because Matsen never asserted this claim in her petition-complaint (R. 46-58), administrative appeal (R. 129-156), or brief before the Appellate Division,17 she failed to preserve it for this Court’s review. See Hecker v. State, 20 N.Y.3d 1087, 1087-88 (2013). If the Court nonetheless addresses this claim, it should reject it. As noted above, DMV is accorded a high degree of deference in what it groups under the umbrella of a “serious driving offense.” DMV here could rationally have regarded these two offenses as less probative of consistently careless driving than the offenses it chose to include. 17 Matsen instead argued before the Appellate Division that the definition of an “alcohol- or drug-related driving conviction or incident” was irrational because it omitted the offense of aggravated unlicensed operation of a motor vehicle in the first degree as well as youthful offender adjudications. The Appellate Division found Matsen’s challenge to this regulatory term unpreserved because she failed to raise it on administrative appeal. (R. 446, n. 2.) 61 B. The definition of an “alcohol- or drug-related driving conviction or incident” has a rational basis. Matsen similarly argues (Br. 9-10) that the definition of an “alcohol- or drug-related offense” in 15 N.Y.C.R.R. § 136.5(a)(1) is irrationally under-inclusive. Specifically, she argues that the definition irrationally excludes youthful-offender adjudications and also convictions for first-degree aggravated unlicensed operation of a motor vehicle. As the Appellate Division noted (R. 446 n. 2), this challenge is unpreserved because Matsen failed to raise it on her administrative appeal. (R. 129-156.) This challenge also lacks merit, because both exclusions have a rational basis. First, the exclusion of youthful-offender adjudications reasonably reflects the policy behind the youthful-offender adjudication: “a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals.” People v. Drayton, 39 N.Y.2d 580, 585 (1976). Consistent with this reasoning, DMV rationally determined that, despite the danger applicants may have caused as youthful offenders, their lapses of judgment can be ascribed to their immaturity at the time of the 62 conduct at issue, and should not be held against them indefinitely. Indeed, DMV’s judgment in this regard is consistent with recent decisions of the U.S. Supreme Court recognizing for purposes of imposing criminal punishment that children, compared to adults, are less capable of exercising sound judgment yet more capable of reforming flawed character traits. See Miller v. Alabama, 132 S. Ct. 2455, 2465-66 (2012). And contrary to Matsen’s argument (Br. 10), DMV’s decision to disregard youthful offender adjudications when considering whether to relicense recidivist offenders does not conflict with the VTL’s consideration of such adjudications for other purposes. Nor does DMV’s decision to omit youthful offender adjudications from the definition of an “alcohol- or drug-related driving conviction or incident” conflict with its decision to include zero-tolerance law adjudications under VTL § 1194-a because the latter additionally covers those aged nineteen and twenty who are no longer eligible for youthful offender status.18 18 Youthful offender adjudications cover those aged sixteen through eighteen, CPL § 720.10(1), while zero-tolerance law adjudications additionally cover those aged nineteen and twenty, VTL §1194-a. 63 Second, the exclusion of convictions for first-degree aggravated unlicensed operation of a motor vehicle reasonably recognizes that such convictions do not necessarily involve drunk driving. See VTL § 511(3)(a). Moreover, while DMV theoretically could obtain charging instruments, transcripts, and other records from criminal proceedings in order to ascertain whether, in individual cases, such convictions in fact involved drunk driving, DMV could reasonably decide that the administrative burden that task would impose was not justified by any incremental additional insight it might gain as a result. Matsen’s rationality challenges to the definitions of a “serious driving offense” and an “alcohol- or drug-related driving conviction or incident” therefore fail. 64 CONCLUSION This Court should affirm the Appellate Division’s order and judgment. Dated: August 15, 2016 Albany, New York Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents By:__________________________ JEFFREY W. LANG Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 776-2027 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General JONATHAN D. HITSOUS JEFFREY W. LANG Assistant Solicitors General of Counsel Reproduced on Recycled Paper ADDENDUM New York State Department of Motor Vehicles Summary of Speed-Related Motor Vehicle Crashes 2014 TABLE 1(P) Speed-Related (S-R) Crashes Category Totals Total Crashes Fatal Crashes Non-Fatal Personal Injury Crashes Reportable Property DamaQe Crashes Vehicles Drivers Involved Speeding Drivers Non-Speeding Drivers ~ehicle Occupants Po lice Reported 28,571 280 12,323 15,968 44,315 40,991 28,223 12,768 58,814 f.S~)p~·e~c~ia~I~S~-~R~C~r7.a~s~h~S~e~r~ie~s~~~----------------~ ~4·2-5 , S-R Pedestrian/Motor Vehicle Crashes S-R Bicycle/Motor Vehicle Crashes 167 S-R Motorcycle Crashes 780 Fatalities Persons Killed (1) Drivers Killed Speeding Drivers Non-Speeding Drivers PassenQers Killed Pedestrians Killed Bicyclists Killed Other Non-Fatal Injuries Pers ons Injured (1) Drivers Injured Passengers Injured Pedestrians Injured Bicyclists Injured Other (1) lndudes pedestrians. bicyclists and all o ther non-vehicle involved persons as well as vehicle occupants regardless of seating position. TABLE 2(Pl Severity of Crash Total Fatal IK\ Crashes Personal Injury Crashes Serious (A) Moderate (B) Minor (C) Unknown Severity Property Damage (0) Crashes 223 203 20 69 15 4 0 17,609 11.844 5,115 437 164 49 < Number 28,571 280 -· 1,661 2,369 7,939 354 15,968 ~ s:· Percent 100.0 General Notes 1.0 * All tables are based on infom..ation received on:y ·- from police reports. 5.8 • The Property Damage Crash reporting level is 8.3 $1.000 or more. 27.8 .. The term "~vehide" aJways excludes bicycles. 1.2 • The term "driver" always excludes blcyclists. 55.9 • Percentages may not total 100.0 due to rounding. Page 1 of6 ADDENDUM 1 ADDENDUM 2 New York State Department of Motor Vehicles Summary of Speed-Related Motor Vehicle Crashes 2014 TABLE 3(P) Day of Week/Time of Day Total Time of Day Day of Week Crashes Mid-3am 3am-6am 6am-9am 9am-Noon Noon-3pm 3pm-6pm 6pm-9pm Total 28,571 2,288 1,948 4,184 4,140 4,389 4,993 3,620 Sunday Total 3,677 574 483 365 363 454 616 477 Fatal 52 7 13 3 4 8 4 10 Personal Injury 1,669 232 208 157 164 215 314 237 Property Damage 1,956 335 262 205 195 231 298 230 Monday Total 3,420 205 201 643 581 498 617 383 Fatal 33 4 4 3 1 6 4 4 Personal Injury 1,592 84 77 261 253 231 319 209 Property Damage 1,795 117 120 379 327 261 294 170 jTuesday Total 3,507 186 158 608 533 552 651 452 Fatal 33 4 5 7 3 6 2 3 Personal Injury 1,568 90 61 233 244 249 314 225 Property Damage 1,906 92 92 368 286 297 335 224 Wednesday Total 4,674 242 215 708 749 888 873 583 Fatal 37 6 5 4 5 4 6 2 Personal Injury 1,800 98 79 292 261 335 349 243 Property Damage 2,837 138 131 412 483 549 518 338 Thursday Total 4,598 251 222 703 633 748 886 659 Fatal 32 8 2 3 2 3 1 7 Personal Injury 1,897 91 92 279 250 298 387 272 Property Damage 2,669 152 128 421 381 447 498 380 Friday Total 4,195 286 217 705 698 574 671 510 Fatal 42 6 4 2 0 8 8 7 Personal Injury 1,786 102 83 I 263 261 250 319 258 Property Damage 2,367 178 130 440 437 316 344 245 Saturday Total 4,500 544 452 452 583 675 679 556 Fatal 51 14 9 5 5 4 6 3 Personal Injury 2,011 239 183 189 251 319 313 268 Property Damage 2,438 291 260 258 327 352 360 285 9pm-Mid Unknown 2,965 44 337 8 3 0 141 1 193 7 288 4 7 0 156 2 125 2 362 5 3 0 148 4 211 1 411 5 5 0 140 3 266 2 492 4 6 0 227 1 259 3 525 9 7 0 248 2 270 7 550 9 5 0 246 3 299 6 Page 2 of6 ADDENDUM 3 New York State Department of Motor Vehicles Summary of Speed-Related Motor Vehicle Crashes 2014 TABLE 4(P) Police Investigating Agenc Total Crashes Sev~fCrash Property Number Percent Fatal Damage Total 28,571 100.0 280 12,323 15,968 State Police 12,240 42.8 85 4,185 7,970 County Police 7,123 24.9 83 3,006 4,034 New York City Police (NYPD) 3,499 12.2 56 2,723 720 Municipal Police {non-NYC) 5,709 20.0 56 2,409 Unknown 0 0.0 0 o I 0 TABLE 5(P) Jurisdictional Road System Total Crashes Severity Class of Crash Personal Property Number Percent Fatal Injury Damage Total State Routes County Routes Town Routes Municipal Streets Data for this table are not available Parkways at this time. Thruway Other Interstates Unknown TABLE 6(P) Manner of Collision Total Crashes Severity Class of Crash Personal Property Number Percent Fatal Injury Damage Total 28,571 100.0 280 12,323 15,968 Single Vehicle Crashes 16,388 57.4 161 6,087 10,140 Two Vehicle Crashes 9,564 33.5 84 4,582 4,898 3 or More Vehicle Crashes 2,619 9.2 35 1,654 930 Page 3 of6 New York State Department of Motor Vehicles Summary of Speed-Related Motor Vehicle Crashes 2014 TABLE 7(P) Crash Contributing Factors Total Crashes Severity Class of Crash Personal Property Number Percent Fata l Injury Damage Total Crashes 28,571 100.0 280 12,323 15,968 Crashes With No Factor Reoorted 5 <0.1 0 2 3 Crashes With One or More Factors Reported 28,566 100.0 280 12,321 15.965 Crashes With Human Facto.-. 28,535 99.9 280 12.31.2 15,943 Aggressive DrMna/Road Raae 294 1.0 9 166 119 Alcohol Involvement 1.896 6.6 53 996 847 Backing Unsafelv 112 0.4 0 52 60 Cell Phone I hand helclf 45 0.2 1 34 10 Cell Phone {hands free) 6 <0.1 0 3 3 Driver Inattention/Distraction 1,754 6.1 13 1,073 668 Driver Inexperience 650 2.3 9 322 319 Drua.s (Illegal) 116 0.4 3 64 49 Eating or Drinking'• 3 <0.1 0 2 1 Failure to Keeo Riaht 875 3.1 15 394 466 Failure to Yield R.O.W. 930 3.3 15 614 301 Fatigued/Drowsy 72 0.3 1 37 34 Fel Asleeo 155 0.5 0 78 77 FollowiM IOO Closely 2,771 9.7 8 1.459 1.304 IUness 26 0.1 3 18 5 Ustenina/UsiOQ Headohones• 0 0 .0 0 0 0 Lost Consciousness 19 0.1 0 17 2 Other Electronic Devioe 7 <0.1 0 3 4 Outside Car Distraction 41 0.1 0 18 23 Passenger Distraction 37 0.1 0 21 16 Pa.sslng or Lane Usage lmpraper 1,038 3.6 23 450 565 Passino too Ctosetv• 49 0.2 0 28 21 Pedostrian/BicydisVOther Ped ErroriConfusion 71 0 .2 4 67 0 Physical Disability 15 0.1 1 12 2 Prescription Medication 35 0.1 0 19 16 ReaC1ion to Other Uninvolved Vehicle 450 1.6 2 237 211 Textlng• 5 <0.1 0 2 3 Trame Control DisreQarded 760 2.7 17 494 249 Turnina Improperly 562 2.0 9 255 298 Unsafe Lane Changing 970 3.4 16 479 475 Unsafe Speed 27,859 97.5 277 11 959 15,623 Using On Board Navigation Device• 0 0.0 0 0 0 Other Human 3 <0.1 0 2 1 cr .. h .. 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