In the Matter of Caralyn A. Matsen, Appellant,v.New York State Department of Motor Vehicles, et al., Respondent.

Brief

N.Y.March 23, 2017

STATE OF NEW YORK COURT OF APPEALS * * * * * * * * * * * * * * * * * * * * * * * In the Matter of KEVIN B. ACEVEDO, Petitioner-Appellant, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et aL., Respondents-Respondents. * * * * * * * * * * * * * * * * * * * * * * * In the Matter of MICHAEL W. CARNEY, Petitioner-Appellant, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et aL., Respondents-Respondents. * * * * * * * * * * * * * * * * * * * * * * * In the Matter of CARALYN A. MATSEN, Petitioner-Appellant, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et aL., Respondents-Respondents. * * * * * * * * * * * * * * * * * * * * * * * APPELLANTS' REPLY BRIEF Respectfully submitted, APL-2015-00248 Index No. 2393-13 APL-2016-00021 Index No. 4866-13 APL-2016-00054 Index No. 2767-13 GERSTENZANG, SILLS, DAVIS, COHN & GERSTENZANG Attorneys for Appellants (Eric H. Sills, Esq., of Counsel) 210 Great Oaks Boulevard Albany, New York 12203 Tel: (518) 456-6456 Fax: (518) 456-6056 Date completed: September 28, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT STATEMENT OF THE CASE THE ILLUSORY WAIVER PROVISION STANDING RETROACTIVITY RESPONDENTS' MISLEADING STATISTICS LIMITS ON RESPONDENTS' DISCRETION RESPONDENTS ' REMAINING CLAIMS CONCLUSION . . . . . . . . . i Page ii 1 2 6 9 11 15 18 21 23 I I I TABLE OF AUTHORITIES UNITED STATES CONSTITUTION Ex Post Facto Clause . . . . . . . 11 CASES UNITED STATES SUPREME COURT Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) Roe v. Wade, 410 U.S. 113 (1973) South Dakota v. Neville, 459 U.S. 553 (1983) NEW YORK STATE COURT OF APPEALS Boreali v. Axelrod, 71 N.Y.2d 1 (1987) Coleman v. Daines, 19 N.Y.3d 1087 (2012) Forti v. New York State Ethics Comm'n, 75 N.Y.2d 596 (1990) ......... . Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600 (2015) . Matter of Miller v. DeBuono, 90 N.Y.2d 783 (1997) Matter of St. Clair Nation v. City of N.Y., 14 N.Y.3d 452 (2010) ....... . Matter of Swalbach v. State Liquor Auth., 7 N.Y.2d 518 (1960) . . . . . . . . . . . . . ... Matter of Wignall v. Fletcher, 303 N.Y. 435 (1952) People v. Letterlough, 86 N.Y.2d 259 (1995) ii 15 10 15 18 10 11-13 18 11, 13 . 11' 13 4' 6' 8 20 20, 22 TABLE OF AUTHORITIES (Con' t) STATUTES PENAL LAW ( "PL" ) PL § 65.10 VEHICLE AND TRAFFIC LAW ( "VTL") VTL § 210 VTL § 501 (2) (c) VTL § 508 VTL § 520 VTL § 530 VTL § 1192 (2-a) VTL § 1192(4-a) VTL § 1193{2) (b) (12) VTL § 1193 (2) (b) (12) (b) VTL § 1193 (2) (b) (12) (c) VTL § 1193 (2) (c) (1) VTL § 1193 (2) (c) (2) VTL § 1193 (2) (c) (3) VTL § 1196 VTL § 1196(5) VTL § 1198 (3) VTL § 1198 (5) (a) iii • . • • . • 2 2 18 22 18 7 7 5 5 3-4, 14, 21 3-4 7 18, 20-21 7 16, 21 7 2, 8 7 22 TABLE OF AUTHORITIES (Con' t) Page REGULATIONS 15 NYCRR § 8.2 2 15 NYCRR § 132.1(b) 19 15 NYCRR § 132.1(d) 19 15 NYCRR Part 136 . 4-5 15 NYCRR § 136.1(b)(l) 5 15 NYCRR § 136.2 . . . 3 15 NYCRR § 136.5 (a) (2) 19 15 NYCRR § 136.5 (b) (1) 9 15 NYCRR § 136.5 (b) (2) 9 15 NYCRR § 136.5 (b) (3) 6, 9-10 15 NYCRR § 136.5(d) 6, 8, 9 15 NYCRR § 136.6(a) (9) 5 15 NYCRR § 136.9 2 15 NYCRR § 136.10(b) 4 OTHER McKinney's Cons. Laws of N.Y. , Book 1, Statutes ("McKinney's Statutes") § 3 (d) 18 McKinney's Statutes § 51 11-12 McKinney's Statutes § 51(b) 12 www.madd.org/statistics 15 iv PRELIMINARY STATEMENT This Reply Brief is submitted in response to (a) the Brief for Respondents dated June 29, 2016 in the Acevedo case, (b) the Brief for Respondents dated July 1, 2016 in the Carney case, and (c) the Brief for Respondents dated August 15, 2016 in the Matsen case . 1 For purposes of this Reply Brief: Petitioner Acevedo is referred to as "Acevedo"; Petitioner Carney is referred to as "Carney"; Petitioner Matsen is referred to as "Matsen''; Respondents' Brief in the Acevedo case is referred to as "REA"; Respondents' Brief in the Carney case is referred to as "RBC"; Respondents' Brief in the Matsen case is referred to as "REM"; Numbers in parentheses preceded by "AR" refer to the numbered pages of the Record on Appeal in the Acevedo case; Numbers in parentheses preceded by "CR" refer to the numbered pages of the Record on Appeal in the Carney case; Numbers in parentheses preceded by "MR" refer to the numbered pages of the Record on_Appeal in the Matsen case; The Acevedo, Carney and Matsen cases are referred to collectively as ''this case'' or ''the instant case''; and The new DMV regulations at issue in this case are referred to collectively as "the Regulations" or "the new Regulations." 1 STATEMENT OF THE CASE The Statement of the Case portions of Respondents' Briefs attempt to create the perception that a driver's license revocation carries with it an aura of lengthiness/permanence. For example, Respondents assert that a person applying for relicensure following a revocation "will usually be required to re-take the road test."' In support of this claim, Respondents cite 15 NYCRR § 8.2, which provides, in pertinent part: Section 8.2. Waiver of road test In addition to any other tests required, an applicant for a license, other than a renewal license, shall be required to pass a road test in a vehicle appropriate to the type of license for which application is made, except that such road test requirement shall be waived: * * * (b) if the applicant is applying for an original license after revocation of a prior New York license, provided that application is made within [2] years from the date subject was last validly licensed in this state. (Emphasis in italics added) . Most DWI offenders are relicensed within 2 years, which -- pursuant to 15 NYCRR § 8.2 -- results in a waiver of the road test. In fact, a large percentage of DWI offenders qualify for the Drinking Driver Program (a.k.a. the Impaired Driver Program), the successful completion of which generally results in license restoration prior to the expiration of the minimum statutory revocation period. See, e.g., VTL § 1196(5); 15 NYCRR § 136.9; 2 See RBA, at 5; RBC, at 5; RBM, at 5. 2 15 NYCRR § 136.2. Thus, while all DWI-related revocations are technically imposed for "at least" 6 months, a large percentage of DWI offenders are actually relicensed in less than 6 months (and without a road test). Respondents thereafter assert that when a revoked license is restored, the original revoked license is not returned; rather, a new license is issued. 3 Assuming, arguendo, that this assertion is accurate, a motorist would neither be aware of nor understand the distinction -- as there is nothing about the new license that differs from the old license. Page 6 of Respondents' Briefs highlights one of the primary issues in dispute in this case. Specifically, Respondents claim that VTL § 1193(2) (b) (12) gives them discretion whether or not to waive a 5-year "permanent" license revocation after 5 years even if all statutory prerequisites for a waiver are satisfied.' VTL § 1193(2) (b) (12) (b) provides, in pertinent part: (b) The permanent driver's license revocation required by clause (a) of this subparagraph shall be waived by the commissioner after a period of [5] years has expired since the imposition of such permanent revocation * * * Provided, however, that the commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored pursuant to this item, in the interest of the public safety and welfare. (Emphases added) . 3 See RBA, at 5; RBC, at 5; REM, at 5. See also RBA, at 34-40; RBC, at 29-34; RBM, at 30-35. 3 Respondents' claims that (a) the ''shall be waived" language in the statute does not create a general rule favoring waiver after 5 years, and (b) the "on a case by case basis" language in the statute authorizes them to never grant a waiver after 5 years under any circumstances, 5 are without merit. 6 As the Appellate Division dissenters in Acevedo correctly stated: It is telling that, under the challenged regulation, petitioner's license has been effectively revoked for a [6]-year period (the initial [1]-year statutory revocation, plus the [5]-year regulatory stay). By comparison, had petitioner incurred the [3] alcohol-related offenses within a shorter, [4]-year period, statutorily his license would have been permanently revoked, subject to a mandatory waiver after [5] years (see Vehicle and Traffic Law§ 1193[2] [b] [12]). (AR 385) (emphasis added) . Notably, prior to the promulgation of the new Regulations, Respondents had interpreted the 5-year waiver provisions of VTL § 1193 (2) (b) (12) (b) exactly as the Appellate Division dissenters interpret them (i.e., as creating a general rule mandating waiver after 5 years). Pages 9-11 of Respondents' Briefs attempt to create the perception that DMV has routinely revised and updated 15 NYCRR Part 136 (which presumably implies that changes to the rules governing relicensure should not come as a surprise). Such a claim does not survive scrutiny. 5 See 15 NYCRR § 136.10(b). See also (AR 265) and (MR 381). 6 See, e.g., Matter of Swa1bach v. State Liquor Auth., 7 N.Y.2d 518, 526 (1960) (an agency "must deal with the situation case by case, appraising the facts as each application is submitted. The agency may not avoid the duty imposed upon it, of exercising a sound discretion in each case"). 4 Part 136 was promulgated in 1980. 7 In 1982, § 136.6(a) (9) was amended to slightly increase the number of "negative units" assigned to driving during a period of alcohol-related license suspension/revocation. 8 In 2006 (i.e., 24 years later), Respondents made ministerial amendments that merely incorporated the newly created crimes of Aggravated DWI, see VTL § 1192(2-a), and DWAI Combined Influence, see VTL § 1192(4-a), into Part 136. 9 In 2011, Respondents amended the definition of the term "problem driver" in§ 136.1(b) (1) "out of concern that the regulations as written constrained staff to approve applications from otherwise dangerous drivers.'' 10 Simply stated, Part 136 had remained virtually unchanged since its promulgation in 1980; and none of the minor amendments thereto in any way hinted that the relicensure rules could be radically changed without notice. In fact, by Respondents' own admission Part 136 "constrained staff to approve applications from otherwise dangerous drivers." The bottom line is that DMV had in place a well-known and decades-long policy for restoring revoked driver's licenses-- and, with few exceptions, the policy resulted in full license restoration as soon as the minimum requirements for relicensure were satisfied. 7 See RBA, at 9; RBC, at 9; RBM, at 9. 8 See RBA, at 10; RBC, at 10; RBM, at 10. 9 See RBA, at 10; RBC, at 10; REM, at 10-11. 10 See RBA, at 11; RBC, at 11. See also RBM, at 11. 5 THE ILLUSORY WAIVER PROVISION Respondents appear to concede that if the Regulations are inflexible and non-waivable they would be illegal. 11 In this regard, Respondents assert that the Regulations merely create presumptive general rules that will be waived, pursuant to 15 NYCRR § 136.5(d), upon a showing of "unusual, extenuating and compelling circumstances. " 12 This assertion is not accurate. At the outset, a "waiver'' under 15 NYCRR § 136.5(d) is not a waiver within the commonly understood meaning of the term. Rather, it is merely a waiver of the remaining portion of the extra 5-year waiting period created by new regulation 15 NYCRR § 136.5(b)(3). In other words, a person who is granted a "waiver" is simply subjected to the illegal A2 restricted license and illegal and costly 5-year IID requirements sooner. Annexed to this Brief are copies of two documents pertaining to "compelling circumstances" waivers. 13 The first document is the form letter that Respondents apparently issue to a person who is granted a waiver. This letter confirms that even where a person is granted a "waiver'' the person is still subjected to the A2 restricted license and IID requirements for 5 years. Thus, there is no such thing as an actual waiver. 11 See RBA, at 62 ("Certainly, an agency that uses inflexible rules risks impermissibly acting on its 'own ideas of sound public policy'") (quoting Matter of Swalbach v. State Liquor Auth., 7 N.Y.2d 518, 524 (1960)). See also RBC, at 51 (same) . 12 See RBA, at 15-16, 33, 62; RBC, at 15, 28-29, 51-52; RBM, at 16, 29. 13 These documents were provided to Petitioners' counsel by another attorney who is challenging the Regulations in an Article 78 proceeding. 6 The second document is an undated affirmation submitted by DMV First Assistant Counsel Ida L. Traschen. This affirmation confirms what Petitioners have asserted throughout this case: that waivers of the new Regulations are almost never granted. Specifically, Ms. Traschen's affirmation discloses that, as of the date thereof, a mere 4 waivers had been granted out of 1,031 applications. See Traschen Affirmation, at ~ 12. In other words, fewer than 1 out of every 250 applications is granted. That is a denial rate of over 99. 6%. 14 To make matters worse, Ms. Traschen asserts that: [M]ost applicants contend that they have been through alcohol rehabilitation and suffer hardship without a license. This is true of almost any person who has been convicted of multiple alcohol-related offenses -- there is nothing unusual, extenuating and compelling about such a situation. Id. at ~ 9. This is a stunning, yet candid, acknowledgment that Respondents consider hardship and rehabilitation to be irrelevant factors when reviewing waiver applications. 15 Simply stated, Respondents' claim that a genuine waiver provision exists is both (a) misleading (because a "waiver'' is not really a waiver), and (b) false (because so few of these non-waiver "waivers" are granted). 14 Notably, Respondents have failed to disclose the circumstances surrounding the 4 purported waivers. It is conceivable that Respondents actually denied 100% of the waiver applications and the 4 waivers resulted from lawsuits challenging the denials. In this regard, it was erroneous for the Courts below to hold that this case could be decided without a hearing. 15 Aside from being irrational, Respondents' position on this issue conflicts with the Legislature's longstanding policy favoring rehabilitation and conditional driving privileges. See, e.g., VTL §§ 520, 530, 1196, 1198 (3), 1193 (2) (b) (12) (c) & 1193 (2) (c) (2). 7 In addition, as the Appellate Division dissenters in Acevedo correctly stated: As set forth above, the statute grants the Commissioner discretion to reissue a license after a revocation period expires and even to terminate a [1]-year revocation once the driver meets certain conditions (see Vehicle and Traffic Law§ 1196[5]). In contrast, the Commissioner has enacted a "general policy" to refuse to reissue a license for an extended [5-]year period in all cases absent a showing "of unusual, extenuating and compelling circumstances" (15 NYCRR 136.5[d]). This last qualifying phrase, in which the Commissioner has reserved the option of waiving the stay, does not resolve the problem because, by definition, a [5]-year stay is the standard and not, of itself, a hardship. The waiver language speaks to an extreme scenario that frankly is difficult to define, but leaves intact a general stay policy. The net effect is predictable enforcement, without regard to the underlying circumstances. By imposing this regulatory limitation, it is our view that the agency "was 'acting solely on its own ideas of sound public policy.''' (AR 384-85) (citations omitted). See also (CR 304-05). See generally Swalbach, 7 N.Y.2d at 526 ("Here . the Authority, in promulgating and relying upon its announced general policy, exceeded its powers and acted outside the law''). 8 ------------------------------------------------"-"-""- STANDING Carney, Matsen and Acevedo are currently being subjected to 15 NYCRR § 136.5 (b) (1), 15 NYCRR § 136.5 (b) (2) and 15 NYCRR § 136.5(b) (3), respectively. Together, Carney, Matsen and Acevedo have standing to challenge virtually every aspect of the new Regulations. The Appellate Division majority in Acevedo misapplied the standing doctrine, holding that Mr. Acevedo lacked standing to challenge the A2 restricted license and 5-year IID requirements of the new Regulations. In this regard, the majority found that it was speculative to assume that Mr. Acevedo was going to be subjected to these requirements. 16 In so holding, the majority asserted that Mr. Acevedo "could apply for and be granted an exemption from the restricted license and [IID] requirements (see 15 NYCRR 136.5 [d]) " 17 -- which is not accurate. See page 6, supra. Having taken advantage of the Appellate Division's lack of understanding of what a waiver under 15 NYCRR § 136.5(d) really means, Respondents now claim that the Acevedo case is moot (on the ground that Acevedo has been granted the very A2 restricted license with IID requirement -- that Respondents successfully claimed he lacked standing to challenge) . 18 16 17 18 See (AR 376). (AR 376). See RBA, at 25-30. 9 [A]n appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties. An exception to the mootness doctrine may apply, however, where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts. Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012) (citation omitted). At the outset, the Acevedo case is not moot, because "an adjudication of the merits will result in immediate and practical consequences to the parties." If this Court holds either (a) that 15 NYCRR § 136.5(b) (3) is illegal, and/or (b) that applying 15 NYCRR § 136.5(b) (3) retroactively to Mr. Acevedo was illegal, then Mr. Acevedo would immediately be released from the illegal A2 restriction and the illegal, costly IID requirement. As the Appellate Division dissenters once again correctly stated: "In our view, a challenge to the initial [5]-year stay necessarily implicates the Commissioner's continuing regulatory authority and, thus, the regulation either stands or falls as a package." (AR 383). Regardless, Acevedo falls squarely within the exception to the mootness doctrine. The issue of the legality of 15 NYCRR § 136.5 (b) (3) is likely to recur, is substantial and novel, and will typically evade review by this Court. With regard to the third prong of the test, the Acevedo case started in 2012 and will not end until at least 2017. As such, the same purported mootness issue would likely recur. See, e.g., Roe v. Wade, 410 u.s. 113, 125 (1973). 10 RETROACTIVITY Petitioners pled guilty under an established set of rules only to have their plea bargains radically altered by a new set of rules that did not exist on the dates of their pleas and, in fact, did not even exist on the dates that they applied for relicensure. If the Legislature changed the criminal penalties associated with DWI and attempted to apply the changes to people who had pled guilty and been sentenced under the old rules, such laws would indisputably violate the Ex Post Facto Clause. Respondents, citing Forti v. New York State Ethics Comm'n, 75 N.Y.2d 596 (1990), Matter of St. Clair Nation v. Citv of N.Y., 14 N.Y.3d 452 (2010), and Matter of Miller v. DeBuono, 90 N.Y.2d 783 (1997), claim that the new Regulations were not applied retroactively to Petitioners. These cases point out that "'[a] statute is not retroactive * * * when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.'" Forti, 75 N.Y.2d at 609 (emphasis added) (quoting McKinney's Statutes§ 51). See also St. Clair Nation, 14 N.Y.3d at 457 (citing Forti); Miller, 90 N.Y.2d at 790 (citing both Forti and McKinney's Statutes§ 51). The new Regulations were not applied retroactively to Petitioners ''merely because" they take prior convictions into account. Rather, they were applied retroactively to Petitioners because they were applied in a manner that, among other things, radically altered Petitioners' plea bargains after-the-fact and in a manner that was neither foreseeable nor fair. 11 --------------------------------·-···-~-·--··--·---- Notably, the above quote from McKinney's Statutes§ 51 is in actuality an exception to the general rule which provides: As a general rule, statutes are to be construed as prospective in operation only, and the¥-~~are not to receive a retroactive construction. This has been said to be a primary rule of statutory construction. Stated differently, a construction of a statute which will give it a retroactive operation is not favored by the courts, but on the contrary, the laws [sic] favors a prospective interpretation wherever possible. * * * Accordingly, a statute should not be given a retroactive effect when it is capable of any other construction. Retroactive constructions are likewise to be avoided where such operation would cause a statute to work an injustice, and in determining whether a retroactive operation was intended it is legitimate to show that one construction would lead to hardships which another would avoid. * * * A retroactive statute should be construed conservatively as the general rule is against such construction. McKinney's Statutes§ Sl(b), at 87-89, 90-91, 93 (emphases added) (footnotes omitted). The statute at issue in Forti -- which did not take effect for almost 17 months after it was enacted19 (and thus was not applied retroactively by any definition) -- prohibited former state employees "from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge that they acquired during their tenure as public servants. " 20 19 75 N.Y.2d at 611. 20 Id. at 605. 12 The regulation at issue in St. Clair Nation led to the refusal of the New York City Department of Buildings to accept any documents submitted by an engineer for 2 years 21 due to his "repeated certification and submission of false materials. " 22 The regulation at issue in Miller which was ''issued to satisfy Medicaid and Medicare participation requirements " 23 -- "barr[ed] residential care facilities from employing any nurse aide who, previously, has been found guilty of patient abuse."'' No reasonable person would argue that these outcomes were unreasonable or unfair. Simply stated, Acevedo, Carney and Matsen are distinguishable from Forti, St. Clair Nation and Miller for many reasons, but perhaps the most important reason is that applying the new DMV Regulations retroactively creates hardship and injustice, and is otherwise fundamentally unfair. Who could look Carney in the eye and tell him, face-to-face, that it was fair for DMV to retroactively increase his license revocation from 6 months to forever despite the fact that the Legislature deems him to be a 1st offender? Who could look Matsen in the eye and tell her, face-to-face, that it was fair for DMV to retroactively increase her license revocation from 1 year to forever based upon a 2 MPH difference in a 12-year-old speeding ticket? 21 Followed by a 3-year probationary period. 22 l4 N. Y.3d at 458. 23 90 N. Y.2d at 789. 24 Id. at 790. 13 Who could look Acevedo in the eye and tell him, face-to- face, that it was fair for DMV to withdraw its approval of his relicensure application for the sole purpose of applying as yet non-existent regulations to him -- and to thereafter treat him far worse than he could have been treated if he had qualified for a 5-year "permanent" revocation under VTL § 1193 (2) (b) (12)? Respondents should not be permitted to bypass Constitutional requirements by legislating under the guise of regulation, and/or by imposing punishment under the guise of highway safety. 14 RESPONDENTS' MISLEADING STATISTICS The premise for the new Regulations (and the purported justification for promulgating them as an ''emergency" measure), are Respondents' claims that (a) in 2010, 28% of alcohol-related injurious crashes statewide involved individuals with 3 or more alcohol-related convictions, and (b) over the previous 25 years, approximately 17,500 drivers who have 3 or more alcohol-related convictions have been involved in at least 1 accident resulting in injury or death. 25 Critically, however, although "the carnage caused by drunk drivers" has been well documented for decades, see, e.g., South Dakota v. Neville, 459 U.S. 553, 558 (1983), it is equally well documented that accidents and injuries caused by drunk driving have steadily gone down. See, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2178 (2016). In fact, the Mothers Against Drunk Driving ("MADD") website proudly declares that "[i]n the United States, the number of drunk driving deaths has been cut in half since MADD was founded in 1980." See www.madd.org/statistics. In other words, things are getting better, not worse. There was no "emergency" justifying Respondents' behavior. Rather, Respondents merely cited some random DWI-related statistics -- which will always demonstrate that drunk driving is dangerous -- as an excuse to engage in administrative policymaking. 25 See (AR 198-99, 211-12); (MR 271-72). See also RBA, at 12, 59-60; RBC, at 12, 49; RBM, at 12, 49-50. 15 The statistic that 28% of alcohol-related injurious crashes statewide involved individuals with 3 or more alcohol-related convictions fails to support Respondents' position for another reason: this statistic demonstrates that 72% of alcohol-related injurious crashes in New York do not involve individuals with 3 or more DWI-related convictions. Thus, Respondents' statistic demonstrates that drunk drivers with 3 or more alcohol-related convictions are far less likely to cause injury than drunk drivers with 0-2 alcohol-related convictions. In other words, the motorists who Respondents claim are such a menace to society that ''emergency'' regulations had to be enacted revoking their driver's licenses retroactively-- and in many cases permanently -- are only responsible for approximately 1/4 of all DWI-related accidents causing injury, which represent only a fraction of all accidents causing injury. 26 Respondents' Briefs assert that drunk drivers cause more than 300 deaths and 6,000 injuries in New York every year. 27 Since drunk drivers with 3 or more alcohol-related convictions purportedly cause 28% of these injuries, they cause approximately 1,680 injuries per year. Notably, Respondents' Brief in Matsen additionally asserts that in 2014 speeding was a factor in 280 fatal crashes and 12,323 non-fatal crashes causing injury. 28 26 To the extent that certain individuals are involved in more than one DWI-related accident causing injury, there has long been a statute in place that permanently revokes their driver's licenses. See VTL § 1193(2) (c) (3). This statute demonstrates that the Legislature had not overlooked this issue. 27 See RBA, at 12; RBC, at 12; RBM, at 12. 28 See RBM, at 59 (and Addendum) . 16 Since speeders cause approximately 12,323 injuries per year, whereas drunk drivers with 3 or more alcohol-related convictions cause approximately 1,680 injuries per year, speeders cause more than 7 times (i.e., more than 700%) as many injuries as drunk drivers with 3 or more alcohol-related convictions. Respondents' veritable declaration of war on recidivist DWI offenders while doing nothing about speeders is further proof that the new Regulations were enacted for political purposes and constitute illegal administrative policymaking. 17 LIMITS ON RESPONDENTS' DISCRETION Like their Briefs in the Court below, Respondents' Briefs in Acevedo, Carnev and Matsen conspicuously fail to articulate one single rule, principle, guideline, safeguard, standard, limit or outer bound to their discretion. 29 To the contrary, Respondents continue to assert that decades-old, facially broad statutes such as VTL § 1193(2) (c) (1) grant them unlimited and plenary discretion in making decisions as to when, if ever, to reinstate driver's licenses that have been revoked. 30 In other words, Respondents ask this Court to read statutes like VTL § 1193 (2) (c) (1) 31 as follows: (c) Reissuance of licenses; restrictions. (1) Where a license is revoked pursuant to paragraph (b) of this subdivision (or for that matter, for any reason whatsoever), the current commissioner can literally do whatever he or she wants (regardless of decades of stability and past precedent). 29 Which should singlehandedly be dispositive of the instant case. Seer e. q., McKinney Is Statutes § 3 (d) ("The Legislature in the enactment of delegative statutes must define the limits of administrative discretion conferred and fix rules or standards to govern its exercise"). See also Greater N.Y. Taxi Ass'n v. NeW York City Taxi & Limousine Cornm'n, 25 N.Y.3d 600, 608 (2015); Borea1i v. Axelrod, 71 N.Y.2d l, 10 (1987). 30 In their Briefs to this Court, Respondents add VTL §§ 210 and 508 to the growi-ng list of such statutes. See RBA, at 4, 50; RBC, at 4, 40; REM, at 4, 40. Respondents' citation to these additional 1970s-era general statutes is a tacit admission that there is no legitimate authorization for the new Regulations. 31 Which provides: (c) Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner. 18 I ' I I I I For example, the commissioner is free to never restore such license. In the event that the commissioner decides, in his or her absolute and unfettered discretion, to restore such license, the commissioner is free to concoct as many new categories of drivers, 32 driving offenses, 33 driver's licenses'' and driver's license restrictions 35 as he or she desires, regardless of the cost to the motorist (and regardless of whether the motorist can afford it). In exercising his or her limitless and unbridled discretion, the commissioner is free to change the rules at any time and without notice, declare false emergencies, rely on misleading statistics, hold applications for relicensure in abeyance indefinitely while new rules are being drafted, withdraw previously granted license approvals, make arbitrary and capricious distinctions, 36 formulate his or her own personalized recidivist DWI offender policy, and otherwise apply any new rule as he or she sees fit (including retroactively). The commissioner is further authorized to do all of this regardless of the hardship and suffering that it creates, regardless of whether the motorist has provided genuine evidence of rehabilitation, and regardless of whether doing so conflicts with existing 32 For example, the new "dangerous repeat alcohol or drug offender." See 15 NYCRR § 132.1(b). 33 ' 1 § For example, the new "serious driving offense.' See 5 NYCRR 132.1(d) & 15 NYCRR § 136.5(a) (2). 34 F-or example, the new A2 restricted license. 35 For example, the new 5-year IID requirement. 36 For example, (a) a Zero Tolerance law adjudication constitutes an "alcohol- or drug-related driving conviction or incident," but DWI-related youthful offender adjudications and DWI-related AUO 1st convictions do not, (b) two cell -phone tickets constitute a "serious driving offense," but the felonies of AUO 1st and fleeing the scene of an accident resulting in serious physical injury do not, (c) a second 6-point speeding conviction is treated the same as a 5th DWI conviction, (d) Petitioner Matsen would immediately be granted an A2 restricted license if one of her 6-point speeding convictions were instead a 4th DWI conviction, etc. 19 statutes, conflicts with the Legislature's longstanding policy favoring rehabilitation and conditional driving privileges, renders existing statutes (such as the Legislature's own detailed recidivist DWI offender statute) superfluous or ineffective, violates well settled doctrines of statutory construction, and/or otherwise constitutes administrative policymaking. In order to cloak any such new rules with a facade of constitutionality, the commissioner should be sure to use phrases such as "public safety and welfare" and "highway safety," and to include an illusory waiver provision. Although such a "statute" sounds preposterous, it not only accurately describes the new Regulations, but also accurately describes the lower courts' interpretation of statutes like VTL § 1193 (2) (c) (1). This has never been the law of this State. See, e.g., People v. Letterlough, 86 N.Y.2d 259, 269 (1995) (''While innovative ideas to address the serious problem of recidivist drunk driving are not to be discouraged, the courts must act within the limits of their authority and cannot overreach by using their probationary powers to accomplish what only the legislative branch can do") (emphasis added) . Letterlough makes clear that there is only one branch of government that is authorized to address the serious problem of recidivist drunk driving: the legislative branch. 37 37 See also Matter of Wignall v. Fletcher, 303 N.Y. 435, 441 (1952) {"However much we may recognize the need for the rightful exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways, it would be a dangerous step indeed if we permitted him to follow any loose practice formulated by him, reg-ardless of the law"). 20 RESPONDENTS' REMAINING CLAIMS The remaining claims in Respondents' Briefs can generally be summarized as follows: 1. The fact that the new Regulations render every single provision of the Legislature's recidivist DWI offender policy (i.e., VTL § 1193 (2) (b) (12)) superfluous or ineffective is irrelevant; 2. The newer, highly specific and pages-long provisions of VTL § 1193(2) (b) (12) have no effect whatsoever on the much older, general, one-sentence-long provisions of VTL § 1193(2) (c) (1) 38 ; 3. Petitioners' assertion that VTL § 1193(2) (b) (12) is a detailed and comprehensive recidivist DWI offender statute is inaccurate; rather, VTL § 1193 (2) (b) (12) only applies to a "narrow group of recidivists " 39 ; 38 See RBA, at 38; RBC, at 33; RBM, at 33-34. 39 See RBA, at 36; RBC, at 30-31; REM, at 31. Such a reading of VTL § 1193(2) (b) (12) is without merit. VTL § 1193(2) (b) (12) is .an extremely detailed statute enacted for the sole purpose of targeting recidivist DWI offenders with 3 or more OWl-related convictions (i.e., the exact same group of people targeted by the new Regulations). It sets forth -- with a high degree of precision -- the Legislature's intent as to exactly who can be subjected to a license revocation of 5 years or more, which offenses can be counted for purposes of "permanent" license revocation, what the proper look- back periods are, etc. If the Legislature wanted a general rule pursuant to which 3 or 4 OWl- related convictions within 25 years would result in a license revocation of 5~-years-to-life, and/or a general rule pursuant to which 3 or 4 DWI-related convictions plus a "serious driving offense" within 25 years (or 5 lifetime DWI-related convictions) would result in permanent license revocation, then VTL § 1193(2) (b) (12) --or VTL § 1193(2) (c) (3) --would say just that. Such a stat.ute, if desired, would take mere minutes to draft. Contrary to Respondents' position, VTL § 1193(2) (b) (12) places a very clear ceiling on Respondents' discretion (i.e., if a person does not qualify for a 5-year license revocation thereunder, Respondents' discretion, however broad, is limited to revoking the person's license for less than 5 years). 21 4. The numerous decisions of this Court that limit the authority of prosecutors 40 to expand the scope of DWI-related statutes by creatively construing general or ambiguous statutory language have no bearing on whether Respondents can do the exact same thing41 ; 5. This Court's finding that the catch-all provision of PL § 65.10 could not be used to impose an IID requirement 42 has no bearing on whether Respondents can use the analogous catch-all provision of VTL § 501(2) (c) to impose an IID requirement"; 6. Although VTL § 1198 (5) (a) makes clear that the cost of an IID is a fine, when Respondents impose an IID the cost is not a fine"; .. 7. The Legislature's acquiescence in Respondents' prior longstanding relicensing policy provides "persuasive evidence" that it tacitly authorized Respondents to abandon that policy and replace it with a substantially harsher policy45 ; and 8. The fact that Respondents have promulgated a recidivist DWI offender policy has no bearing on whether they have engaged in administrative policymaking. 40 Who, like Respondents, are part of the executive branch. 41 . See RBA, at 32; RBC, at 27; RBM, at 27-28. 42 43 44 45 See People v. Letterlough, 86 N.Y.2d 259, 268 (1995). See RBA, at 44-45. See RBA, at 46. See RBA, at 52; RBC .• at 41; RBM, at 42. 22 CONCLUSION It is abundantly clear that Respondents have chosen to ignore the law and to significantly exceed their discretion, hoping that the unpopularity of recidivist DWI offenders will entice the Court to turn a blind eye. It would be unfortunate if this hard case were to make bad law. Dated: September 28, 2016 Respectfully submitted, GERSTENZANG, SILLS, DAVIS, COHN & GERSTENZANG By:--=-2~· f--;-;--(~~~-----,o-~,-- Eric H. Sills, Esq., of Counsel Attorneys for Appellants 210 Great Oaks Boulevard Albany, New York 12203 (518)456-6456 23 ADDENDUM 0--.·· t STAU: OF ;,r-. YORJ\ OEPARniE~ OF MOTQR VEHiCLES May 16,2014 Dear We have received and reviewed your letter dated : , including all the supporting documentation, , requesting approval of your application for re-Jicensure based upon unusual, extenuating and compelling circumstances. Based on this information, we approv~ your request for a New York State driver · license/privilege, which includes a "Problem Driver-A7" driving restriction. This restriction limits yom driving privileges and requires you to install an ignition interlock device in all motor vehicles you o~ or operate for five years. · The approval of your request involved an extensive re~ew of your entire driving history, including th~ · favorable results of your evaluation and/or completion [of treatment at an authorized treatment agency! and the unusual, extenuating and compelling circum.stlinces that you provided. · i Your driving history indicates a history of abuse of alcphol or drugs. Pursuant to the Commissioner'~ Rules tllld Regulations Part 136.1 (b), a history of abuse of alcohol or drugs consist of a record of two pr more incidents, within a 25 year period, of operating a !motor vehicle while under the influence of , alcoholic beverages and/or drugs or of refusing to subQrlt to a chemical test not arising out of the samcr incident, whether such incident was committed within or outside of this state. . The evidence of drinking and driving offenses that a~ on your driving record demonstrate a need for you to exercise extreme care to avoid operating a motor vehicle after consuming any amount of ' alcoholic beverages. It is anticipated that the knowledge you have gained while participating in an alcohol awarenllSS program will assist in avoiding such a situation. However, should you incur any future violations resulting in a revocation, this Departn\ent will apply the highest scrutiny to your relicensing efforts. · Relicensing instructions are provided in the attached approval packet. ' Attachments sikcerely, Examiner's name Dtjiver Improvement Examiner DI]iver Improvement Unit SUPREME COURT OF THE STATE OF NEW YORK ULSTER COUNTY In the Matter of NICOLAS A. BRUNETTI a/kfa NICHOLAS A. BRUNETTI, Petitioner, -against- BARBARA J. FIALA, COMMISSIONER OF MOTOR VEHICLES OF THE STATE OF NEW YORK, Respondent. Index No. 1313110 AFFIRMATION OF IDA L. TRASCHEN IDA L. TRASCHEN, affinns, pursuant to CPLR 2106, as follows: I. I am First Assistant Counsel with the New York State Department of Motor Vehicles (the DMV) and have been an attorney with the DMV for 22 years. 2. On or about October 24, 2012, the Driver Improvement Unit (DIU) denied petitioner's application for re-licensure based upon the fact that he had five alcohol-related incidents on his driving record. Under section 136.5( d) of the Commissioner's Regulations, if a person is denied under such section, such person may make application for re-licensure based upon unusual, extenuating and compelling circumstances . . 3. On or !!bout November 23,2012, petitioner's attorney, James W. Winslow, made an application for re-licensure based upon unusual, extenuating and compelling circumstances. The DIU denied such application on December 28, 2102. 4. Petitioner has requested a copy of the DS-322 form, "Request for Consideration of Relicensing:' A Driver Improvement Unit (DIU) examiner uses the general guidelines set forth on this form to evaluate whether an applicant may be approved for re-licensure based upon unusual, extenuating and compelling circumstances. These broad guidelines are not set in stone. A DIU examiner always has discretion to look at other factors that are not contemplated on the form. 5. The DS-322 form is an internal, intra-agency form that is used only by DIU staff. It has not been used by or shared with any other agency of the State of New York, or with any other person outside ofDMV. 6. The DMV believes it would undermine the process of evaluating applications for re- licensure based upon unusual, extenuating and compelling circumstances if the DS-322 form were disclosed to the public. If disclosed, each applicant would attempt to tailor his/her life experiences, challenges, and circumstances into a category set forth on the DS-322 and, if denied, argue that such denial was improper. 7. These are not one size fits all guidelines. They are general guidelines that help staff review the totality of the circumstances and the credibility of documentation submitted by the applicant. Thus,' simply making a statement about one's circumstances or presenting a document that might lend credence to such a statement so that the applicant "addresses" each category on the form may serve the illusion of meeting DMV's threshold, while falling short of making a substantive case that the applicJ!Ilt has unusual, extenuating and compelling circumstances. 8. Such an approach fails to account for the DIU examiner's expertise and experience. The examiners review hundreds of these applications and are in the best position to evaluate what circumstances are truly unusual, extenuating and compelling, and what documentation supports such a contention. 9. As an example, most applicants contend that they have been through alcohol rehabilitation and suffer hardship without a license. This is true of almost any person who has been convicted of multiple alcohol-related offenses-there is nothing unusual, extenuating and compelling about such a situation. ' 10. In the instant case, petitioner argues that he is the sole supporter of his household and that his daughter does not hold·a license and suffers from diabetes. In addition, he states that his grandson needs medical care for burns over much of his body. Petitioner has not submitted proof of these medical needs. In addition, the DMV's records indicate that his daughter obtained a driver's license on 11/16/13 and that she now shares the same address as her father. 11. Petitioner submitted proof that he completed treatment mandated by the Dutchess County Court, but not that he has continued in a treatment program. Similarly, completion of community service was a Court mandate, and does not indicate service to the community beyond this minimal requirement. His submission of a mortgage statement and a business insurance certificate do not translate to unusual, extenuating and compelling circumstances. All persons applying for a license have financial obligations. 12. Unquestionably, the DMV has set the bar high for consideration of an application for re-licensure based upon unusual, extenuating and compelling circumstances. Since the regulations were enacted, only four of 1,031 applicants have demonstrated such compelling circumstances. 13. However. these standards are necessary to prevent recidivist drunk drivers from posing a risk to the State's motorists. Petitioner has been through the criminal justice system several times and should understand the consequences of his actions. 14. Although not having a license is a hardship, this is outweighed by the DMV's need to keep recidivist alcohol offenders off of our highways. !5. In this case. petitioner's request for release ofDMV's internal guidelines is a "red herring·· designed to detract from the deficiencies in proof provided on his 0\1/TI application, and should be denied. Ida L. T raschen First Assistant Counsel