In the Matter of Michael W. Carney, Appellant,v.New York State Department of Motor Vehicles, et al., Respondents.BriefN.Y.March 23, 2017 To Be Argued By: Eric H. Sills, Esq. Time Requested: 20 Minutes STATE OF NEW YORK COURT OF APPEALS * * * * * * * * * * * * * * * * * * * In the Matter of MICHAEL W. CARNEY, Petitioner-Appellant, APL-2016-00021 v. Index No. 4866-13 NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, et al., Respondents-Respondents. * * * * * * * * * * * * * * * * * * * PETITIONER-APPELLANT'S BRIEF ORIGINAL BRIEF Respectfully submitted, GERSTENZANG, O'HERN, SILLS & GERSTENZANG Attorneys for Petitioner-Appellant (Eric H. Sills, Esq., of Counsel) 210 Great Oaks Boulevard Albany, New York 12203 Tel: (518)456-6456 Fax: (518)456-6056 Date completed: February 18, 2016 STATEMENT PURSUANT TO 22 NYCRR § 500.13(a) Pursuant to 22 NYCRR § 500.13(a), "[e]ach brief shall indicate the status of any related litigation as of the date the brief is completed. Such statement shall be included before the table of contents in each party's brief." The instant case is related to Matter of Acevedo v. New York State Dep't of Motor Vehicles, Index No. 2393-13 (APL-2015- 00248); see also Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112 (3d Dep't 2015), and Matter of Matsen v. New York State Dep't of Motor Vehicles, 134 A.D.3d 1283 (3d Dep't 2015). Petitioner's and Respondents' counsel in the instant case also represent the Petitioners and Respondents in Acevedo and Matsen. The brief and record in Acevedo were filed on February 18, 2016. A motion for reargument or, in the alternative, for leave to appeal to this Court is currently pending before the Appellate Division in Matsen. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . iv QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . xii FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I RESPONDENTS' NEW RECIDIVIST DWI OFFENDER REGULATIONS CONSTITUTE ILLEGAL POLICYMAKING AS OPPOSED TO LAWFUL RULEMAKING.. . . . . . . . . . 5 1. Respondents' reliance on decades-old general delegations of authority as authorization for the Regulations is without merit. . . . . . . . . . . . . . . . . 8 2. The Regulations violate Boreali v. Axelrod. . . . . . . . . . . . . . . . . . . . 12 3. The Regulations ignore and supersede the Legislature's comprehensive recidivist DWI offender policy.. . . . . . . . 16 4. 15 NYCRR § 136.5 renders every single provision of VTL § 1193(2)(b)(12) ineffective. . . . . . . . . . . . . . . . . . 24 5. Respondents and the Appellate Division majority misinterpret the "public safety and welfare" exception in VTL §§ 1193(2)(b)(12)(b) and (e). . . . . . . . . . . 26 6. The Regulations violate the rule that a prior general statute yields to a more recent specific statute covering the same subject matter. . . . . . . . . . . . . . 29 7. The Regulations violate the doctrine of legislative acquiescence.. . . . . . . . . . . 31 8. The decision of the Appellate Division majority cannot be reconciled with a series of DWI-related decisions issued by this Court. . . . . . . . . . . . . . . . . 33 ii TABLE OF CONTENTS (Con't) Page 9. Respondents ignore a legislative intent favoring rehabilitation and conditional driving privileges as opposed to lengthy/permanent license revocations. . . . . 37 10. The new lifetime look-back period constitutes illegal policymaking, conflicts with existing statutes and is otherwise ultra vires.. . . . . . . . . 39 11. The Regulations are in various respects arbitrary and capricious.. . . . . . . . . . . 41 12. No special expertise or technical competence was involved in the development of the Regulations.. . . . . . . . 46 13. The Appellate Division dissent is clearly correct. . . . . . . . . . . . . . . . 47 POINT II RESPONDENTS ACTED ILLEGALLY IN APPLYING THE NEW REGULATIONS RETROACTIVELY TO PETITIONER.. . . . 49 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 51 iii TABLE OF AUTHORITIES Page NEW YORK STATE CONSTITUTION Article III, § 1. . . . . . . . . . . . . . . . . . . . . . . 5 CASES UNITED STATES SUPREME COURT Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988). . . . . 49 Langnes v. Green, 282 U.S. 531 (1931).. . . . . . . . . . . . 27 NEW YORK STATE COURT OF APPEALS Boreali v. Axelrod, 71 N.Y.2d 1 (1987). . . . . . ii, 12-14, 16, 17, 36, 46, 48 Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600 (2015).. . . . . . . 17, 31 Matter of Acevedo v. New York State Dep't of Motor Vehicles, Index No. 2393-13 (APL-2015-00248).. . . i, 3, 31 Matter of Brusco v. Braun, 84 N.Y.2d 674 (1994).. . . . . . . 30 Matter of Dutchess County Dep't of Social Servs. v. Day, 96 N.Y.2d 149 (2001).. . . . . . . . . . . . . . 29 Matter of Francois v. Dolan, 95 N.Y.2d 33 (2000). . . . . . . 29 Matter of N.Y. Pub. Interest Research Group v. New York State Dep't of Ins., 66 N.Y.2d 444 (1985).. . . . . 31 Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979).. . . . . . . 16 Matter of Soares v. Carter, 25 N.Y.3d 1011 (2015).. . . . . . 5 Matter of Wignall v. Fletcher, 303 N.Y. 435 (1952). . . . . . 51 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).. . . . . . 13-14, 46, 48 Packer Collegiate Inst. v. University of State of N.Y., 298 N.Y. 184 (1948).. . . . . . . . . . . . 16-17 iv TABLE OF AUTHORITIES (Con't) Page People v. Ballman, 15 N.Y.3d 68 (2010). . . . . . . . . . 33, 35 People v. Cooper, 78 N.Y.2d 476 (1991). . . . . . . . . . . . 1 People v. Letterlough, 86 N.Y.2d 259 (1995).. . . . . . . 33, 35 People v. Litto, 8 N.Y.3d 692 (2007). . . . . . . . . 31, 33, 35 People v. Moselle, 57 N.Y.2d 97 (1982). . . . . . . . . . . . 34 People v. Prescott, 95 N.Y.2d 655 (2001). . . . . . . 10, 33-35 People v. Rivera, 16 N.Y.3d 654 (2011). . . . . . . . . . 33, 35 People v. Zephrin, 14 N.Y.3d 296 (2010).. . . . . . . . . . . 29 APPELLATE DIVISION, FIRST DEPARTMENT New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep't of Health and Mental Hygiene, 110 A.D.3d 1 (1st Dep't 2013), aff'd, 23 N.Y.3d 681 (2014).. . . . . . . . . 14-15 APPELLATE DIVISION, SECOND DEPARTMENT People v. Litto, 33 A.D.3d 625 (2d Dep't 2006), aff'd, 8 N.Y.3d 692 (2007).. . . . . . . . . . . . . . . 25 APPELLATE DIVISION, THIRD DEPARTMENT Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112 (3d Dep't 2015).. . . . . i, 5, 7, 43, 47 Matter of Linsley v. Gallman, 38 A.D.2d 367 (3d Dep't 1972), aff'd on opinion below, 33 N.Y.2d 863 (1973).. . . . . . . . . . . . . . . . . . 49 Matter of Matsen v. New York State Dep't of Motor Vehicles, 134 A.D.3d 1283 (3d Dep't 2015). . . . . . i, 45 Matter of Redfield v. Melton, 57 A.D.2d 491 (3d Dep't 1977). . . . . . . . . . . . . . . . . . . . . 17 v TABLE OF AUTHORITIES (Con't) Page Matter of Retired Public Employees Ass'n v. Cuomo, 123 A.D.3d 92 (3d Dep't 2014). . . . . . . . . . . . . . 17 OTHER CASES People v. Greer, 189 Misc. 2d 310 (App. Term, 2d Dep't 2001). . . . . . . . . . . . . . . . . . . . . . . 1 People v. Harris, 23 Misc. 3d 250 (Monroe County Ct. 2008). . . . . . . . . . . . . . . . . . . . . . . . 1 STATUTES CORRECTION LAW Correction Law Article 23.. . . . . . . . . . . . . . . . 19, 21 CRIMINAL PROCEDURE LAW ("CPL") CPL § 200.60. . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL § 720.35(2).. . . . . . . . . . . . . . . . . . . . . 43-44 PENAL LAW ("PL") PL § 65.10. . . . . . . . . . . . . . . . . . . . . . . . . . 33 PL § 120.04(3). . . . . . . . . . . . . . . . . . . . . . . . 39 PL § 120.04-a(3). . . . . . . . . . . . . . . . . . . . . . . 39 PL § 125.13(3). . . . . . . . . . . . . . . . . . . . . . . . 39 PL § 125.14(3). . . . . . . . . . . . . . . . . . . . . . . . 39 VEHICLE AND TRAFFIC LAW ("VTL") VTL Article 31. . . . . . . . . . . . . . . . . . . . . . 34-35 VTL § 214.. . . . . . . . . . . . . . . . . . . . . . . . . . 8 vi TABLE OF AUTHORITIES (Con't) Page VTL § 215.. . . . . . . . . . . . . . . . . . . . . . . . . . 8 VTL § 215(a). . . . . . . . . . . . . . . . . . . . . . . 8, 11 VTL § 215(c). . . . . . . . . . . . . . . . . . . . . . . . . 8 VTL § 501.. . . . . . . . . . . . . . . . . . . . . . . . . . 8 VTL § 501(2)(c).. . . . . . . . . . . . . . . . . . . . . 8, 11 VTL § 510.. . . . . . . . . . . . . . . . . . . . . . . . . . 9 VTL § 510(3)(a).. . . . . . . . . . . . . . . . . . . . . . . 9 VTL § 510(5). . . . . . . . . . . . . . . . . . . . . . . . . 9 VTL § 510(6). . . . . . . . . . . . . . . . . . . . . . 8-9, 11 VTL § 510(6)(a).. . . . . . . . . . . . . . . . . . . . . . . 9 VTL § 510(6)(d).. . . . . . . . . . . . . . . . . . . . . . . 9 VTL § 510(6)(h).. . . . . . . . . . . . . . . . . . . . . . . 9 VTL § 511.. . . . . . . . . . . . . . . . . . . . . . . . 19-20 VTL § 511(3) (a.k.a. AUO 1st).. . . . . . . . . . 33, 42-43, 45 VTL § 513.. . . . . . . . . . . . . . . . . . . . . . . . . . 44 VTL § 513(b). . . . . . . . . . . . . . . . . . . . . . . . . 44 VTL § 520.. . . . . . . . . . . . . . . . . . . . . . 18, 37-38 VTL § 530.. . . . . . . . . . . . . . . . . . . . . . . . . . 37 VTL § 600(2)(c).. . . . . . . . . . . . . . . . . . . . . . . 45 VTL § 1192. . . . . . . . . . . . . . . . . . . . . 9, 18-20, 25, 34-35, 44 VTL § 1192(1) (a.k.a. DWAI).. . . . . . . . . . . . 1-3, 23, 40 VTL § 1192(3) (a.k.a. DWI). . . . . . . . . . . . . . . . . . 33 VTL § 1192(8).. . . . . . . . . . . . . . . . . . . . . . . . 33 vii TABLE OF AUTHORITIES (Con't) Page VTL §§ 1192-99. . . . . . . . . . . . . . . . . . . . . . . . 34 VTL § 1192-a (a.k.a. Zero Tolerance law). . . . . . . . . 3, 44 VTL § 1193. . . . . . . . . . . . . . . . . . . . . . . 9-10, 35 VTL § 1193(1)(a). . . . . . . . . . . . . . . . . . . 1-2, 39-40 VTL § 1193(1)(b)(ii). . . . . . . . . . . . . . . . . . . . . 44 VTL § 1193(1)(c). . . . . . . . . . . . . . . . . . . . . . . 2 VTL § 1193(1)(c)(i).. . . . . . . . . . . . . . . . . . . . . 39 VTL § 1193(1)(c)(ii). . . . . . . . . . . . . . . . . . . . . 39 VTL § 1193(1)(c)(ii-a) (a.k.a. Vince's law).. . . . . . . . . 40 VTL § 1193(1)(c)(iii).. . . . . . . . . . . . . . . . . . . . 44 VTL § 1193(2)(a)(1).. . . . . . . . . . . . . . . . . . . . . 2 VTL § 1193(2)(b)(1).. . . . . . . . . . . . . . . . . . . 2, 39 VTL § 1193(2)(b)(1-a).. . . . . . . . . . . . . . . . . 2, 39-40 VTL § 1193(2)(b)(2).. . . . . . . . . . . . . . . . . . . . . 2 VTL § 1193(2)(b)(3).. . . . . . . . . . . . . . . . 2, 23, 39-40 VTL § 1193(2)(b)(6).. . . . . . . . . . . . . . . . . . . . . 44 VTL § 1193(2)(b)(7).. . . . . . . . . . . . . . . . . . . . . 44 VTL § 1193(2)(b)(8).. . . . . . . . . . . . . . . . . . . . . 44 VTL § 1193(2)(b)(12). . . . . . . . . . ii, 2, 5-6, 8, 10-11, 18, 21-27, 29-32, 37, 46 VTL § 1193(2)(b)(12)(a).. . . . . . . . . . . . . 18, 24, 26, 39 VTL § 1193(2)(b)(12)(a)(i). . . . . . . . . . . . . . . . 23-24 VTL § 1193(2)(b)(12)(a)(ii).. . . . . . . . . . . . . . . 23-24 VTL § 1193(2)(b)(12)(b).. . . . . . . . . . . ii, 19, 24, 26-27 viii TABLE OF AUTHORITIES (Con't) Page VTL § 1193(2)(b)(12)(c).. . . . . . . . . . . . . . . 19, 25, 37 VTL § 1193(2)(b)(12)(d).. . . . . . . . . . . 20, 22, 25-26, 39 VTL § 1193(2)(b)(12)(e).. . . . . . . . . . . ii, 20, 22, 25-27 VTL § 1193(2)(b)(12)(f).. . . . . . . . . . . . . . . . . . . 21 VTL § 1193(2)(c)(1).. . . . . . . . . . 8, 10-11, 29-30, 32, 37 VTL § 1193(2)(c)(2).. . . . . . . . . . . . . . . . . . . 37, 44 VTL § 1193(2)(c)(3).. . . . . . . . . . . . . . . . . . 2, 7, 25 VTL § 1193(2)(e)(4).. . . . . . . . . . . . . . . . . . . . . 44 VTL § 1194. . . . . . . . . . . . . . . . . . . 9, 18-20, 34-35 VTL § 1194(2)(d)(1).. . . . . . . . . . . . . . . . . 8, 10, 39 VTL § 1195. . . . . . . . . . . . . . . . . . . . . . . . . . 35 VTL § 1196. . . . . . . . . . . . . . . . . . . . . . 35, 37-38 VTL § 1196(4).. . . . . . . . . . . . . . . . . . . . . . . . 44 VTL § 1196(7)(f). . . . . . . . . . . . . . . . . . . . . . . 33 VTL § 1197. . . . . . . . . . . . . . . . . . . . . . . . . . 35 VTL § 1198. . . . . . . . . . . . . . . . . . . . . . . . 35, 46 VTL § 1198(3).. . . . . . . . . . . . . . . . . . . . . . . . 37 VTL § 1198(3)(a). . . . . . . . . . . . . . . . . . . . . . . 25 VTL § 1198-a. . . . . . . . . . . . . . . . . . . . . . . . . 35 VTL § 1199. . . . . . . . . . . . . . . . . . . . . . . . . . 35 VTL § 1809(10). . . . . . . . . . . . . . . . . . . . . . . . 44 VTL § 1809-c(4).. . . . . . . . . . . . . . . . . . . . . . . 44 ix TABLE OF AUTHORITIES (Con't) Page REGULATIONS 15 NYCRR § 131.3. . . . . . . . . . . . . . . . . . . . . . . 41 15 NYCRR § 131.3(b)(3)(i).. . . . . . . . . . . . . . . . . . 41 15 NYCRR § 131.3(b)(4)(iii).. . . . . . . . . . . . . . . 6, 41 15 NYCRR Part 132.. . . . . . . . . . . . . . . . . . . . 6, 38 15 NYCRR § 132.1(c).. . . . . . . . . . . . . . . . . . . . . 6 15 NYCRR § 132.1(d).. . . . . . . . . . . . . . . . . . . . . 6 15 NYCRR § 132.1(e).. . . . . . . . . . . . . . . . . . . . . 6 15 NYCRR § 134.7(a)(11)(i). . . . . . . . . . . . . . . . . . 25 15 NYCRR § 136.5. . . . . . . . . . . . . . . . . . . ii, 24, 38 15 NYCRR § 136.5(a)(1). . . . . . . . . . . . . . . . . . 3, 42 15 NYCRR § 136.5(a)(2). . . . . . . . . . . . . . . . . 6, 41-42 15 NYCRR § 136.5(a)(2)(ii). . . . . . . . . . . . . . . . . . 45 15 NYCRR § 136.5(a)(3). . . . . . . . . . . . . . . . . . . . 6 15 NYCRR § 136.5(b)(1). . . . . . . . . . . . . . 3-4, 6, 25, 37, 39, 41, 47, 49 15 NYCRR § 136.5(b)(2). . . . . . . . . . . . . 6, 24, 41-42, 45 15 NYCRR § 136.5(b)(3). . . . . . . . . . . . . . . . . . 24, 42 15 NYCRR § 136.10(b). . . . . . . . . . . . . . . . . . . . . 6 22 NYCRR § 500.13(a). . . . . . . . . . . . . . . . . . . . . i 22 NYCRR § 500.14.. . . . . . . . . . . . . . . . . . . . . . 1 OTHER L.1988, c. 47, § 9. . . . . . . . . . . . . . . . . . . . . . 9 x TABLE OF AUTHORITIES (Con't) Page L.1994, c. 75, §§ 1, 2. . . . . . . . . . . . . . . . . . . . 1 L.2006, c. 732, § 26. . . . . . . . . . . . . . . . . . . . . 18 2011 New York Assembly Bill No. 8934-B. . . . . . . . . . . . 36 2013 New York Assembly Bill No. 586, § 5. . . . . . . . . . . 36 2013 New York Assembly Bill No. 1933, § 2.. . . . . . . . . . 36 2013 New York Assembly Bill No. 1997. . . . . . . . . . . . . 36 2013 New York Assembly Bill No. 2279, § 1.. . . . . . . . . . 36 2013 New York Assembly Bill No. 3347, § 3.. . . . . . . . . . 36 2013 New York Assembly Bill No. 4346, § 4.. . . . . . . . . . 36 2013 New York Assembly Bill No. 5774, § 2.. . . . . . . . . . 36 2013 New York Assembly Bill No. 5775, §§ 2 & 3. . . . . . . . 36 2011 New York Senate Bill No. 6496. . . . . . . . . . . . . . 36 2013 New York Senate Bill No. 739, §§ 1 & 2.. . . . . . . . . 36 2013 New York Senate Bill No. 4267. . . . . . . . . . . . . . 40 2013 New York Senate Bill No. 6287, § 2.. . . . . . . . . . . 36 2013 New York Senate Bill No. 6355, § 2.. . . . . . . . . . . 36 2013 New York Senate Bill No. 6355, § 3.. . . . . . . . . . . 36 2013 New York Senate Bill No. 7175, § 1.. . . . . . . . . . . 36 McKinney's Cons. Laws of N.Y., Book 1, Statutes ("McKinney's Statutes") § 3(d). . . . . . . . . 17 McKinney's Statutes § 97. . . . . . . . . . . . . . . . . 30, 35 McKinney's Statutes § 98. . . . . . . . . . . . . . . . . 25, 30 McKinney's Statutes § 144.. . . . . . . . . . . . . . . . 25, 30 McKinney's Statutes § 397.. . . . . . . . . . . . . . . . 29-30 xi QUESTIONS PRESENTED 1. Do Respondents' new recidivist DWI offender regulations constitute illegal policymaking as opposed to lawful rulemaking? 2. Did Respondents act illegally in applying the new regulations retroactively to Petitioner? xii FACTS On May 4, 2011, Petitioner, Michael W. Carney, was convicted of Driving While Intoxicated ("DWI"). This was Petitioner's 6th DWI-related conviction since 1984. Petitioner's 6 DWI-related offenses were committed on the following dates: 1. August 5, 1984; 2. October 19, 1984; 3. June 23, 1992; 4. September 2, 1999; 5. October 10, 2000; and 6. November 24, 2010. (R. 34, 219-20).1 Notably, Petitioner's first 5 convictions were for the traffic infraction of Driving While Ability Impaired ("DWAI") in violation of VTL § 1192(1).2 Thus, Petitioner's 2011 DWI conviction represents the first and only time that Petitioner has either (a) been convicted of DWI, and/or (b) been convicted of a DWI-related crime. 1 Numbers in parentheses preceded by an "R." refer to the numbered pages of the Record on Appeal. Pages starting at (R. 293) were added to the Record pursuant to 22 NYCRR § 500.14. 2 VTL § 1193(1)(a) was amended in 1994 (L.1994, c. 75, §§ 1, 2) to provide that a 3rd DWAI within 10 years is a misdemeanor. Despite the statutory language, however, it is well settled that a 3rd DWAI within 10 years is only a misdemeanor if it is properly charged as such. See, e.g., People v. Greer, 189 Misc. 2d 310 (App. Term, 2d Dep't 2001); People v. Harris, 23 Misc. 3d 250 (Monroe County Ct. 2008). See generally People v. Cooper, 78 N.Y.2d 476, 478 (1991) ("When a defendant's prior conviction raises the grade of an offense, and thus becomes an element of the higher grade offense, the Criminal Procedure Law . . . specifies a procedure for alleging and proving the prior convictions (CPL 200.60)"). 1 On the date of each of Petitioner's convictions, all relevant DWI-related statutes contained a look-back period of 10 years or less (meaning that offenses committed prior to the look-back period do not count for purposes of enhancing the consequences of the current offense).3 Similarly, on the date of each of Petitioner's convictions the relevant regulations promulgated by Respondent New York State Department of Motor Vehicles ("DMV") contained a 10-year look-back period. Thus, as the Appellate Division majority noted, "[a]lthough it was his sixth conviction for an alcohol-related driving offense, [Petitioner] was treated as a first time offender under the Vehicle and Traffic Law because he had not been convicted of a similar offense in the 10 years preceding his 2011 conviction" (R. 298-99). As such, Petitioner's 2011 DWI conviction resulted in the minimum statutory license revocation of 6 months.4 The VTL contains numerous statutes that address the issue of recidivist DWI offenders.5 The only time that Petitioner has ever qualified for recidivist DWI offender treatment under any of these statutes is that, as a result of his 5th DWAI conviction, Petitioner's driver's license was revoked for at least 6 months rather than suspended for 90 days.6 3 See page 39, infra. 4 See VTL § 1193(2)(b)(2). 5 See, e.g., VTL § 1193(1)(a); VTL § 1193(1)(c); VTL § 1193(2)(b)(1); VTL § 1193(2)(b)(1-a); VTL § 1193(2)(b)(3); VTL § 1193(2)(b)(12); VTL § 1193(2)(c)(3). 6 Compare VTL § 1193(2)(a)(1) with VTL § 1193(2)(b)(1). 2 As a 1st offender within the eyes of every relevant law and regulation, Petitioner pled guilty to the 2011 DWI charge with the understanding that he would be treated as such. Petitioner applied for relicensure in or about June of 2012 (R. 9). However, in February of 2012 Respondents stopped processing the license applications of, and stopped issuing licenses to, individuals who had accumulated either (a) 3 or more DWI-related convictions/incidents within the past 25 years, or (b) 5 or more DWI-related convictions/incidents within their lifetimes.7 The purpose of the delay was to prevent these people from being relicensed while draconian new regulations were being drafted -- so that the (as yet non-existent) regulations could subsequently be retroactively applied to them (R. 11). The new regulations (hereinafter "the Regulations") were made public, and took effect, on September 25, 2012 (R. 53, 59).8 The Regulations that directly impact Petitioner are 15 NYCRR §§ 136.5(a)(1) and 136.5(b)(1). See Exhibit A, at 128-29. On January 9, 2013, Petitioner's application for relicensure was denied pursuant to the Regulations (R. 10, 33-34). 7 For purposes of this brief, the term "DWI-related conviction" refers to both DWI-related convictions (e.g., DWAI or DWI), and DWI-related incidents (e.g., chemical test refusal findings and Zero Tolerance law adjudications). 8 The text of, and purported authorization for, the Regulations is set forth at pages 122-31 of the Record on Appeal in the related case of Matter of Acevedo v. New York State Dep't of Motor Vehicles, Index No. 2393-13 (APL- 2015-00248) (copies of which are attached hereto as Exhibit A). 3 Specifically, Petitioner's driver's license is being permanently revoked by Respondents pursuant to new regulation 15 NYCRR § 136.5(b)(1), which provides as follows: (b) Upon receipt of a person's application for relicensing, the Commissioner shall conduct a lifetime review of such person's driving record. If the record review shows that: (1) the person has [5] or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime, then the Commissioner shall deny the application. Thus, Respondents have retroactively transformed a license revocation that was reasonably anticipated to be for the minimum statutory time period into a revocation for the maximum possible time period (i.e., forever). In other words, Respondents have retroactively and permanently revoked the driver's license of a citizen who is a 1st offender in the eyes of every relevant law. Petitioner timely appealed the denial of his application for relicensure to Respondents' Appeals Board (R. 39-47). Petitioner's administrative appeal was denied (R. 49-54). Petitioner thereafter timely filed the instant action challenging both the lawfulness of the Regulations as well as the lawfulness of applying the Regulations retroactively to his application for relicensure (R. 17-84). In a Decision/Order dated March 17, 2014, Supreme Court denied Petitioner's Petition in its entirety (R. 8-16). Petitioner appealed to the Appellate Division, Third Department. In a 3-2 decision, the Appellate Division affirmed (R. 298-305). This appeal followed. 4 POINT I RESPONDENTS' NEW RECIDIVIST DWI OFFENDER REGULATIONS CONSTITUTE ILLEGAL POLICYMAKING AS OPPOSED TO LAWFUL RULEMAKING Article III, § 1 of the New York State Constitution provides that "[t]he legislative power of this state shall be vested in the senate and assembly." "'The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions.'" Matter of Soares v. Carter, 25 N.Y.3d 1011, 1013 (2015) (citation omitted). The Regulations target recidivist DWI offenders who have accumulated 3 or more DWI-related convictions. Critically, however, the Legislature has enacted a detailed and comprehensive recidivist DWI offender statute that targets the exact same group of people. See VTL § 1193(2)(b)(12). A fatal problem with the Regulations is that thousands of motorists, like Petitioner, who do not qualify for recidivist DWI offender treatment under VTL § 1193(2)(b)(12) nonetheless fall within the ambit of the Regulations and are being permanently revoked. As the dissenting Justices stated in the related case of Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112, 125 (3d Dep't 2015): "This consequence shows that the Commissioner has simply gone too far." Simply stated, in 2012 Respondents decided that the Legislature's recidivist DWI offender statute was not tough enough -- so they decided to ignore the statute and supersede it. 5 The Regulations create multiple new permanent, lifetime license revocations without one single change to any relevant statute. For example: Pursuant to 15 NYCRR § 136.5(b)(1), motorists who have 5 or more DWI-related convictions within their entire lifetimes whose licenses are revoked for any reason will never be relicensed. Pursuant to 15 NYCRR § 136.5(b)(2), motorists who have 3 or 4 DWI-related convictions and a "serious driving offense"9 within the new "25 year look back period"10 whose licenses are revoked for any reason will never be relicensed. Pursuant to 15 NYCRR Part 132, motorists who are convicted of a "high-point driving violation"11 (such as a cell phone or a texting infraction12) who have 5 or more DWI-related convictions within their entire lifetimes, or 3 or 4 DWI-related convictions and a "serious driving offense"13 within the "25 year look back period,"14 will be permanently revoked. Pursuant to 15 NYCRR § 136.10(b), motorists who are subject to 5- and 8-year waivable "permanent" license revocations pursuant to VTL § 1193(2)(b)(12) will only be relicensed under limited circumstances. 9 See 15 NYCRR § 136.5(a)(2). 10 See 15 NYCRR § 136.5(a)(3). 11 See 15 NYCRR § 132.1(c). 12 See 15 NYCRR § 131.3(b)(4)(iii). 13 See 15 NYCRR § 132.1(d). 14 See 15 NYCRR § 132.1(e). 6 The Regulations are so obviously unauthorized by existing law that the press release accompanying their rollout expressly states both: (a) "Under current law, drivers who are convicted of multiple alcohol or drug related driving offenses cannot permanently lose their licenses"; and (b) "The only time a driver really faces losing a license permanently is when he or she has two alcohol or drug related convictions arising from separate crashes involving a physical injury."15 (R. 59). The dissenters in Acevedo also dissented in the instant case, stating: "We respectfully dissent, essentially for the same reasons articulated in the dissent in [Acevedo]. The circumstances here are even more compelling" (R. 303) (citation and footnote omitted). As will be demonstrated below, the Regulations, inter alia, (a) violate the separation of powers doctrine, (b) are ultra vires, (c) irreconcilably conflict with multiple statutes, (d) violate numerous doctrines of statutory construction, and (e) ignore adverse authority. 15 See VTL § 1193(2)(c)(3). 7 1. Respondents' reliance on decades-old general delegations of authority as authorization for the Regulations is without merit. As a threshold matter, the question arises: Where does Respondents' purported authority to replace decades of stability and predictability in the enforcement of the DWI laws with a radical new recidivist DWI offender policy come from? The authority for the Regulations relevant to this case purportedly derives from VTL §§ 215(a), 501(2)(c), 510(6), 1193(2)(b)(12), 1193(2)(c)(1) and 1194(2)(d)(1). See Exhibit A, at 122, 127-30. These statutes will be addressed seriatim. VTL § 215(a) VTL § 215 (formerly VTL § 214) was enacted in 1960. There was an amendment to the statute in 1972 that is not readily accessible on Westlaw. A 2002 amendment added VTL § 215(c), and is thus irrelevant. VTL § 215(a) provides as follows: (a) General. Subject to and in conformity with the provisions of the vehicle and traffic law and the constitution and laws of the state, the commissioner may enact, amend and repeal rules and regulations which shall regulate and control the exercise of the powers of the department and the performance of the duties of officers, agents and other employees thereof. VTL § 501(2)(c) VTL § 501 was enacted in 1972. Amendments prior to 1986 are not readily accessible on Westlaw. There are no relevant amendments to VTL § 501(2)(c) between at least 1986 and today's date. VTL § 501(2)(c) provides, in pertinent part: 8 (c) Restrictions. Notwithstanding the foregoing provisions of this subdivision, the operation of vehicles may be limited by a restriction or restrictions placed on a license. . . . In addition, the commissioner may by regulation provide for additional restrictions based upon . . . other factors deemed appropriate by the commissioner. VTL § 510(6) The language in VTL § 510(6) that Respondents rely upon as authorizing the Regulations is found in VTL § 510(6)(a). This section, which was enacted in its present form in 1988, provides as follows: Where revocation is mandatory hereunder, no new license shall be issued for at least [6] months or, in certain cases a longer period as specified in this chapter, nor thereafter, except in the discretion of the commissioner of motor vehicles. Critically, however, on the same day and in the same section that VTL § 510(6)(a) was enacted (i.e., L.1988, c. 47, § 9), the Legislature enacted VTL § 510(6)(d) (currently VTL § 510(6)(h)), which provides that "[t]he provisions of this subdivision shall not apply to revocations issued pursuant to sections [1193] and [1194] of this chapter." DWI-related license revocations come from VTL §§ 1193 and 1194. In addition, VTL § 510(3)(a) expressly provides that Respondents' discretionary authority to suspend or revoke a driver's license (or to deny a license to an unlicensed person) pursuant to VTL § 510 does not apply to violations of VTL § 1192 (i.e., to DWI-related offenses). Thus, Respondents' reliance on VTL § 510(6) (or VTL § 510(5)) is patently without merit. 9 VTL § 1193(2)(b)(12) Respondents' claim that VTL § 1193(2)(b)(12) authorizes the Regulations is also patently without merit. In fact, VTL § 1193(2)(b)(12) both (a) limits Respondents' discretion to enact their own recidivist DWI offender policy, and (b) demonstrates that the Regulations are illegal. See infra. VTL § 1193(2)(c)(1) The relevant language of VTL § 1193(2)(c)(1) was enacted in 1988. A 1993 amendment changed the statute to its present form, but did not change the substance. VTL § 1193(2)(c)(1) provides as follows: (c) Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner. VTL § 1193(2)(c)(1) in reality is the primary statute relied upon by Respondents. See People v. Prescott, 95 N.Y.2d 655, 661 (2001) ("the Legislature has made it clear that the courts must look to section 1193 for the appropriate penalties . . . for drunk driving offenses"). VTL § 1194(2)(d)(1) VTL § 1194(2)(d)(1), which was enacted in 1988, is similar to VTL § 1193(2)(c)(1), only it applies to the less common situation where the license revocation was for refusal to submit to a chemical test rather than for a DWI-related conviction. 10 With the exception of VTL § 1193(2)(b)(12), which is discussed at length below, every single statute relied upon by Respondents as authorization for the Regulations is decades old and extremely general. No relevant provision of any of these statutes has changed since at least 1988 (and, in the case of VTL §§ 215(a) and 501(2)(c), long before). Thus, Respondents' premise in enacting the Regulations is that decades-old, facially broad statutes such as VTL §§ 510(6) and 1193(2)(c)(1) grant them unlimited and plenary discretion in making decisions as to when, if ever, to reinstate driver's licenses that have been revoked.16 In addition, Respondents take the position that no one whose license is revoked for any reason has -- or has ever had -- a legitimate expectation of being relicensed, because statutes such as VTL §§ 510(6) and 1193(2)(c)(1) have always authorized them to change the rules at any time, and to apply the changes retroactively. A ruling in Respondents' favor would set an extremely dangerous precedent. It would mean that from now on DMV can change the rules at any time; which would mean that the rules in place at the time that a plea bargain is negotiated are meaningless. 16 The fact that the Regulations create multiple new lifetime license revocations without one single change to any relevant statute in well over two decades confirms that Respondents believe that their discretion has no bounds. 11 2. The Regulations violate Boreali v. Axelrod. This Court's seminal decision regarding the delegation of power to an administrative agency is Boreali v. Axelrod, 71 N.Y.2d 1 (1987). Boreali held that: [T]he Public Health Council overstepped the boundaries of its lawfully delegated authority when it promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public. While the Legislature has given the Council broad authority to promulgate regulations on matters concerning the public health, the scope of the Council's authority under its enabling statute must be deemed limited by its role as an administrative, rather than a legislative, body. In this instance, the Council usurped the latter role and thereby exceeded its legislative mandate, when, following the Legislature's inability to reach an acceptable balance, the Council weighed the concerns of nonsmokers, smokers, affected businesses and the general public and, without any legislative guidance, reached its own conclusions about the proper accommodation among those competing interests. In view of the political, social and economic, rather than technical, focus of the resulting regulatory scheme, we conclude that the Council's actions were ultra vires. Id. at 6. Boreali identified four "coalescing circumstances" or "factors" that should be considered in deciding whether "the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed." Id. at 11. The first Boreali factor is whether "the agency has built a regulatory scheme [based] on its . . . 'own ideas of sound public policy.'" Id. at 12. 12 The second Boreali factor is whether the agency "merely fill[ed] in the details of broad legislation describing the over- all policies to be implemented [or rather] wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance." Id. at 13. The third Boreali factor is whether "the agency acted in an area in which the Legislature had repeatedly tried -- and failed -- to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions." Id. at 13. The fourth Boreali factor is whether "special expertise or technical competence in the [relevant field] was involved in the development of the . . . regulations." Id. at 14. 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, 696-97 (2014), the Court recently stated: As the term "coalescing circumstances" suggests, we do not regard the four circumstances as discrete, necessary conditions that define improper policymaking by an agency, nor as criteria that should be rigidly applied in every case in which an agency is accused of crossing the line into legislative territory. Rather we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency has crossed that line. Consequently, respondents may not counter petitioners' argument merely by showing that one Boreali factor does not obtain. 13 Hispanic Chambers of Commerce made clear that: Any Boreali analysis should center on the theme that "it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends." The focus must be on whether the challenged regulation attempts to resolve difficult social problems in this manner. That task, policymaking, is reserved to the legislative branch. * * * An agency that adopts a regulation . . . that interferes with commonplace daily activities preferred by large numbers of people must necessarily wrestle with complex value judgments concerning personal autonomy and economics. That is policymaking, not rulemaking. Id. at 697, 699 (citation omitted). These five sentences are dispositive of this case. The issue of recidivist DWI offenders is an issue that (a) poses a difficult social problem, (b) requires the making of choices among competing ends, (c) interferes with commonplace daily activities preferred by large numbers of people (i.e., driving), and (d) wrestles with complex value judgments concerning personal autonomy and economics. Respondents' Regulations fall squarely within the ambit of Boreali as clarified by Hispanic Chambers of Commerce. See, e.g., Boreali, 71 N.Y.2d at 13 ("Manifestly, it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends"); Hispanic Chambers of Commerce, 23 N.Y.3d at 697 (same); New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep't of Health and Mental Hygiene, 110 A.D.3d 1, 7-8 (1st Dep't 2013) 14 ("Because the constitution vests legislative power in the legislature, administrative agencies may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary. In other words, '[as] an arm of the executive branch of government, an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations'") (citation omitted), aff'd, 23 N.Y.3d 681 (2014). 15 3. The Regulations ignore and supersede the Legislature's comprehensive recidivist DWI offender policy. The first Boreali factor is whether "the agency has built a regulatory scheme [based] on its . . . 'own ideas of sound public policy.'" Boreali v. Axelrod, 71 N.Y.2d 1, 12 (1987). The second is whether the agency "merely fill[ed] in the details of broad legislation describing the over-all policies to be implemented [or rather] wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance." Id. at 13. These two factors are related. Id. "The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation." Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). "The Legislature may, of course, leave 'execution and details' to the administrators, but the Legislature must at least furnish those administrators with 'rules and principles' for guidance." Packer Collegiate Inst. v. University of State of N.Y., 298 N.Y. 184, 190 (1948). The purported authorization for the Regulations derives solely from decades-old, extremely general statutes that contain no specificity whatsoever. The regulations that were held to be ultra vires in Boreali were purportedly authorized by a similar general delegation of authority: 16 However facially broad, a legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits. Even under the broadest and most open-ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives. Here, we cannot say that the broad enabling statute in issue is itself an unconstitutional delegation of legislative authority. However, we do conclude that the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be. Boreali, 71 N.Y.2d at 9 (emphasis added) (citations omitted). It is well settled that "[t]he Legislature in the enactment of delegative statutes must define the limits of administrative discretion conferred and fix rules or standards to govern its exercise." McKinney's Statutes § 3(d). See also Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600, 608 (2015) ("A legislature may enact a general statutory provision and delegate power to an agency to fill in the details, as long as reasonable safeguards and guidelines are provided to the agency") (emphasis added); Boreali, 71 N.Y.2d at 10 ("'there is no constitutional prohibition against the delegation of power, with reasonable safeguards and standards, to an agency . . . to administer the law as enacted by the Legislature'") (emphasis added) (citation omitted); Packer, supra.17 17 The Appellate Division majority ignored this constitutionally mandated rule despite being well aware of it. See, e.g., Matter of Retired Public Employees Ass'n v. Cuomo, 123 A.D.3d 92, 97 (3d Dep't 2014); Matter of Redfield v. Melton, 57 A.D.2d 491, 495 (3d Dep't 1977). 17 To this day, Respondents have conspicuously failed to articulate one single rule, principle, guideline, safeguard, standard, limit or outer bound to their discretion. Not one. Respondents potentially would have had a plausible argument in this case if the Legislature had passed a statute delegating authority to DMV to draft a recidivist DWI offender policy. However, there is no such statute.18 To the contrary, the Legislature addressed the issue itself, enacting a detailed and comprehensive recidivist DWI offender statute long after the general statutes relied upon by Respondents were enacted. See VTL § 1193(2)(b)(12) (a.k.a. L.2006, c. 732, § 26). VTL § 1193(2)(b)(12) provides, in full, as follows: (12) Permanent revocation. (a) Notwith- standing any other provision of this chapter to the contrary, whenever a revocation is imposed upon a person for the refusal to submit to a chemical test pursuant to the provisions of [VTL § 1194] or conviction for any violation of [VTL § 1192] for which a sentence of imprisonment may be imposed, and such person has: (i) within the previous [4] years been twice convicted of any provisions of [VTL § 1192] or a violation of the penal law for which a violation of [VTL § 1192] is an essential element and at least [1] such conviction was for a crime, or has twice been found to have refused to submit to a chemical test pursuant to [VTL § 1194], or has any combination of [2] such convictions and findings of refusal not arising out of the same incident; or 18 Cf. VTL § 520 (which expressly delegates authority to DMV to create a rehabilitation program). 18 (ii) within the previous [8] years been convicted [3] times of any provision of [VTL § 1192] for which a sentence of imprisonment may be imposed or a violation of the penal law for which a violation of [VTL § 1192] is an essential element and at least [2] such convictions were for crimes, or has been found, on [3] separate occasions, to have refused to submit to a chemical test pursuant to [VTL § 1194], or has any combination of such convictions and findings of refusal not arising out of the same incident, such revocation shall be permanent. (b) The permanent driver's license revocation required by clause (a) of this subparagraph shall be waived by the commissioner after a period of [5] years has expired since the imposition of such permanent revocation, provided that during such [5]-year period such person has not been found to have refused a chemical test pursuant [VTL § 1194] while operating a motor vehicle and has not been convicted of a violation of any subdivision of [VTL § 1192] or [VTL § 511] or a violation of the penal law for which a violation of any subdivision of [VTL § 1192] is an essential element and either: (i) that such person provides acceptable documentation to the commissioner that such person has voluntarily enrolled in and successfully completed an appropriate rehabilitation program; or (ii) that such person is granted a certificate of relief from disabilities or a certificate of good conduct pursuant to [Correction Law Article 23]. Provided, however, that the commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored pursuant to this item, in the interest of the public safety and welfare. (c) For revocations imposed pursuant to clause (a) of this subparagraph, the commissioner may adopt rules to permit conditional or restricted operation of a motor vehicle by any such person after a mandatory revocation period of not less than [3] years subject to such criteria, terms and conditions as established by the commissioner. 19 (d) Upon (i) a finding of refusal after having been convicted [3] times within [4] years of a violation of any subdivision of [VTL § 1192] or of the penal law for which a violation of any subdivision of [VTL § 1192] is an essential element or any combination of [3] such convictions not arising out of the same incident within [4] years[;] or (ii) a fourth conviction of any subdivision of [VTL § 1192] after having been convicted of any such subdivision of [VTL § 1192] or of the penal law for which a violation of any of such subdivisions of [VTL § 1192] is an essential element or any combination of [3] such convictions not arising out of the same incident within [4] years[;] or (iii) a finding of refusal after having been convicted [4] times within [8] years of a violation of any subdivision of [VTL § 1192] or of the penal law for which a violation of any of such subdivisions of [VTL § 1192] is an essential element or any combination of [4] such convictions not arising out of the same incident within [8] years[;] or (iv) a fifth conviction of any subdivision of [VTL § 1192] after having been convicted of such subdivision or of the penal law for which a violation of any of such subdivisions of [VTL § 1192] is an essential element or any combination of [4] such convictions not arising out of the same incident within [8] years, such revocation shall be permanent. (e) The permanent driver's license revocation required by clause (d) of this subparagraph may be waived by the commissioner after a period of [8] years has expired since the imposition of such permanent revocation provided: (i) that during such [8]-year period such person has not been found to have refused a chemical test pursuant to [VTL § 1194] while operating a motor vehicle and has not been convicted of a violation of any subdivision of [VTL § 1192] or [VTL § 511] or a violation of the penal law for which a violation of any such subdivisions of [VTL § 1192] is an essential element; and 20 (ii) that such person provides acceptable documentation to the commissioner that such person has voluntarily enrolled in and successfully completed an appropriate rehabilitation program; and (iii) after such documentation is accepted, that such person is granted a certificate of relief from disabilities or a certificate of good conduct pursuant to [Correction Law Article 23]. Notwithstanding the provisions of this clause, nothing contained in this clause shall be deemed to require the commissioner to restore a license to an applicant who otherwise has complied with the requirements of this item, in the interest of the public safety and welfare. (f) Nothing contained in this subparagraph shall be deemed to reduce a license revocation period imposed pursuant to any other provision of law. (Emphasis added). VTL § 1193(2)(b)(12) takes up multiple pages in the VTL. It clearly sets forth what is required to qualify for "permanent" revocation. Dispositively, VTL § 1193(2)(b)(12) demonstrates a legislative intent that even when the Legislature uses the term "permanent revocation" it does not mean permanent revocation. VTL § 1193(2)(b)(12) is not a statute that can validly be interpreted as granting Respondents unlimited discretion to do whatever they want to recidivist DWI offenders. To the contrary, it places a very clear ceiling on Respondents' discretion. If a recidivist DWI offender, like Petitioner, does not qualify for a 5-year revocation (let alone an 8-year revocation) thereunder, then Respondents' discretion, however broad, is limited to revoking the person's license for less than 5 years. 21 In other words, it is axiomatic that an individual who does not fall within the ambit of VTL § 1193(2)(b)(12) cannot be permanently revoked -- either "permanently" or permanently -- pursuant to a regulation that targets the exact same behavior. If there is one single limit on Respondents' discretion, then Respondents cannot do what they have done to Petitioner (i.e., permanently revoke the driver's license of a citizen who is a 1st offender in the eyes of every relevant law enacted by the Legislature). The outer boundaries of Respondents' discretion are clear: At the one extreme are the minimum statutory revocation periods. At the other extreme are the "permanent" revocation periods set forth in VTL § 1193(2)(b)(12). Respondents have chosen to ignore the law and to significantly exceed their discretion, hoping that the unpopularity of recidivist DWI offenders will entice the Courts to turn a blind eye. The Appellate Division majority made a comment that proves that its decision was based on its disdain for recidivist DWI offenders rather than on sound legal reasoning. Specifically, the majority refers to motorists like Petitioner as "egregiously recidivist intoxicated drivers" (R. 301). The determination as to who is to be labeled an "egregiously recidivist intoxicated driver" is neither Respondents' nor a Court's decision to make. The Legislature is well aware that there are citizens who have accumulated 5 or more DWI-related convictions -- and it has expressly addressed the issue. See VTL §§ 1193(2)(b)(12)(d)/(e). 22 The Legislature has given a very different name to a citizen with Petitioner's driving record: first offender. The majority concedes this point (R. 298-99) ("Although it was [Petitioner's] sixth conviction for an alcohol-related driving offense, he was treated as a first time offender under the Vehicle and Traffic Law because he had not been convicted of a similar offense in the 10 years preceding his 2011 conviction"). * * * * * * * * * * Notably, although Petitioner has accrued 6 DWI-related convictions over his lifetime, he has never been eligible for recidivist DWI offender treatment under VTL § 1193(2)(b)(12) (even if the statute had existed prior to 2006). In order to fall within the ambit of VTL § 1193(2)(b)(12), a person must accumulate either (a) at least 3 DWI-related convictions within 4 years (at least 1 of which must be for a crime), see VTL § 1193(2)(b)(12)(a)(i), or (b) at least 4 DWI-related convictions within 8 years (at least 2 of which must be for crimes). See VTL § 1193(2)(b)(12)(a)(ii). Petitioner has never even come close to meeting any of these requirements. In fact, since Petitioner's first 5 DWI- related convictions were for the traffic infraction of DWAI in violation of VTL § 1192(1), Petitioner has never even qualified for "prior offense" treatment pursuant to VTL § 1193(2)(b)(3). Thus, it is arguable that Respondents' discretion is limited to revoking Petitioner's driver's license for no more than 1 year. 23 4. 15 NYCRR § 136.5 renders every single provision of VTL § 1193(2)(b)(12) ineffective. A comparison of the provisions of new regulation 15 NYCRR § 136.5 with the provisions of VTL § 1193(2)(b)(12) demonstrates that there is not one single provision in VTL § 1193(2)(b)(12) that is not rendered superfluous or ineffective by the new regulation. 15 NYCRR § 136.5(b)(3), which revokes the driver's licenses of everyone who has accumulated 3 or 4 DWI-related convictions within a 25-year time period for a minimum of 5 years longer than the statutory revocation period, followed by 5 more years on an A2 restricted license with a 5-year IID requirement, renders VTL §§ 1193(2)(b)(12)(a) and (b) ineffective. 15 NYCRR § 136.5(b)(2), which permanently revokes the driver's licenses of everyone who has accumulated 3 or 4 DWI- related convictions plus a "serious driving offense" within a 25-year time period, further renders VTL §§ 1193(2)(b)(12)(a) and (b) ineffective. The fact that none of the person's DWI-related convictions is required to be for a crime for purposes of 15 NYCRR § 136.5 -- whereas at least one of the offenses required for "permanent" revocation pursuant to VTL § 1193(2)(b)(12)(a)(i) must be for a crime, and at least two of the offenses required for "permanent" revocation pursuant to VTL § 1193(2)(b)(12)(a)(ii) must be for crimes -- further renders VTL §§ 1193(2)(b)(12)(a) and (b) ineffective. 24 Since no one who has accumulated 3 or more DWI-related convictions within the previous 25 years will ever be granted a conditional license under the Regulations, see 15 NYCRR § 134.7(a)(11)(i); Exhibit A, at 125, VTL § 1193(2)(b)(12)(c) is rendered ineffective.19 Finally, 15 NYCRR § 136.5(b)(1), which permanently revokes the driver's licenses of everyone who has accumulated 5 DWI- related convictions within their entire lifetimes, renders VTL §§ 1193(2)(b)(12)(d) and (e) ineffective. Simply stated, the Regulations render VTL § 1193(2)(b)(12) -- the Legislature's detailed and comprehensive policy targeting the exact same group of people targeted by the Regulations -- "superfluous, a result to be avoided in statutory construction." People v. Litto, 33 A.D.3d 625, 626 (2d Dep't 2006), aff'd, 8 N.Y.3d 692 (2007). See also McKinney's Statutes § 144 ("Statutes will not be construed as to render them ineffective"); McKinney's Statutes § 98. If the Legislature wanted a general rule pursuant to which 5 DWI-related convictions within a person's entire lifetime would result in a permanent license revocation, then VTL § 1193(2)(b)(12) -- or VTL § 1193(2)(c)(3) -- would say just that. 19 VTL § 1198(3)(a), which provides that for purposes of issuing a post-revocation conditional license "the commissioner shall not deny such issuance based solely upon the number of convictions for violations of any subdivision of [VTL § 1192] committed by such person within the [10] years prior to application for such license," is also rendered ineffective by the Regulations. 25 5. Respondents and the Appellate Division majority misinterpret the "public safety and welfare" exception in VTL §§ 1193(2)(b)(12)(b) and (e). VTL § 1193(2)(b)(12)(b) indicates a legislative intent that Respondents should generally waive a "permanent" revocation imposed pursuant to VTL § 1193(2)(b)(12)(a) after 5 years if the requirements of the statute are met. VTL § 1193(2)(b)(12)(e) indicates a legislative intent that Respondents should generally waive a "permanent" revocation imposed pursuant to VTL § 1193(2)(b)(12)(d) after 8 years if the requirements of the statute are met. Like all general rules, there is an exception. The exception permits Respondents to deny a waiver "in the interest of the public safety and welfare." Notably, however, VTL § 1193(2)(b)(12)(b) expressly provides that -- with respect to waivers of "permanent" revocations imposed pursuant to VTL § 1193(2)(b)(12)(a) -- Respondents can only apply the "public safety and welfare" exception "on a case by case basis." Respondents -- and the Appellate Division majority (R. 300) -- read the exception as permitting Respondents to: (a) ignore the statute's general waiver rules; (b) ignore the "on a case by case basis" language in VTL § 1193(2)(b)(12)(b); and (c) adopt a hard-and-fast rule pursuant to which not only every motorist who is subject to VTL § 1193(2)(b)(12) -- but also every motorist who accumulates 5 or more DWI-related convictions in his or her entire lifetime -- will be permanently denied relicensure "in the interest of the public safety and welfare." 26 In other words, Respondents and the Appellate Division majority take the position that the "public safety and welfare" exception in VTL §§ 1193(2)(b)(12)(b) and (e) can be interpreted not only to render every other word in VTL § 1193(2)(b)(12) irrelevant, but also as evincing a general legislative intent that Respondents can do whatever they want -- even to motorists, like Petitioner, who are not subject to VTL § 1193(2)(b)(12) -- as long as they claim to be acting "in the interest of the public safety and welfare." Such reasoning is not legally sound. It is axiomatic that an exception cannot validly be expanded in a manner that would swallow the rule. The "public safety and welfare" exception in VTL §§ 1193(2)(b)(12)(b) and (e) cannot validly be interpreted to grant DMV unbridled discretion to never grant a waiver (on the ground that every waiver application will be denied "in the interest of the public safety and welfare"). Such an interpretation constitutes an illegal hard-and-fast rule. See Langnes v. Green, 282 U.S. 531, 541 (1931). While Respondents undoubtedly have a certain amount of discretion to decide, on a true case-by-case basis, whether a particular individual poses a unique and immediate threat to the motoring public and should be revoked for a longer-than-normal period of time, it is quite another thing for an administrative agency to unilaterally declare that entire groups -- consisting of tens of thousands of people (R. 60) -- can be generically characterized as "persistently dangerous drivers" and punished far more severely than had ever been thought possible. 27 This is particularly true where no recent legislation addressing the issue has been enacted, and all relevant proposed legislation has failed. See infra. 28 6. The Regulations violate the rule that a prior general statute yields to a more recent specific statute covering the same subject matter. At its core, this case boils down to the following question: Does the old, general, one-sentence-long delegation of authority contained in VTL § 1193(2)(c)(1) authorize Respondents to supersede the far more recent, highly specific, and pages-long provisions of VTL § 1193(2)(b)(12)? The question almost seems rhetorical. It is well settled that "[a] special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies." McKinney's Statutes § 397, at 574. "Any other conclusion would destroy the effect of all special acts on subjects covered by general legislation." Id. at 576. This Court has repeatedly followed this rule. See, e.g., People v. Zephrin, 14 N.Y.3d 296, 301 (2010) ("we have held on numerous occasions that a specific statutory provision governs over a more general provision"); Matter of Dutchess County Dep't of Social Servs. v. Day, 96 N.Y.2d 149, 153 (2001) ("Another well-established rule of statutory construction provides that a 'prior general statute yields to a later specific or special statute'") (citation omitted); Matter of Francois v. Dolan, 95 N.Y.2d 33, 38-39 (2000) ("giving precedence to the subsequently enacted, specific provision . . . over the earlier enacted, more general provisions . . . is consistent with the canon of statutory interpretation most directly applicable here: 29 'what is special or particular in the later of two statutes supersedes as an exception whatever in the earlier statute is unlimited or general'") (citation omitted). See also Matter of Brusco v. Braun, 84 N.Y.2d 674, 681 (1994). VTL § 1193(2)(b)(12), a highly detailed, comprehensive, multi-page statute tailored solely to the issue of when -- and for how long -- the driver's licenses of recidivist DWI offenders who have accumulated 3 or more DWI-related convictions should be revoked, was enacted long after the general provisions of the statutes relied upon by Respondents were enacted. As such, VTL § 1193(2)(b)(12) controls this case and places clear limits on Respondents' discretion that Respondents have ignored and exceeded.20 20 The location of VTL § 1193(2)(b)(12) within the VTL is itself significant. VTL § 1193(2)(b)(12) immediately precedes VTL § 1193(2)(c)(1). It is inconceivable that the same Legislature that enacted VTL § 1193(2)(b)(12) contemplated that DMV could utilize pre-existing VTL § 1193(2)(c)(1) to nullify its newly created recidivist DWI offender policy. See, e.g., McKinney's Statutes §§ 97, 98, 144, 397. 30 7. The Regulations violate the doctrine of legislative acquiescence. The Legislature's failure to interfere with Respondents' prior treatment of recidivist DWI offenders indicates that the Legislature was in agreement with the prior policy. See, e.g., Greater N.Y. Taxi Ass'n v. New York City Taxi & Limousine Comm'n, 25 N.Y.3d 600, 612 (2015) ("Where an agency has promulgated regulations in a particular area for an extended time without any interference from the legislative body, we can infer, to some degree, that the legislature approves of the agency's interpretation or action"); Matter of N.Y. Pub. Interest Research Group v. New York State Dep't of Ins., 66 N.Y.2d 444, 451 (1985) ("We have held legislative acquiescence by silence significant in prior cases"). The doctrine of legislative acquiescence is applicable to this case for at least three reasons. First, between at least 1986 and 2006 the Legislature acquiesced in Respondents' longstanding recidivist DWI offender policy.21 Second, the Legislature ultimately no longer fully acquiesced in the policy -- as it enacted VTL § 1193(2)(b)(12) in 2006.22 Third, numerous post-2006 attempts to pass laws that would impose harsher penalties on recidivist DWI offenders have failed. 21 This policy is set forth at pages 119-20 of the Record on Appeal in the related case of Matter of Acevedo v. New York State Dep't of Motor Vehicles, Index No. 2393-13 (APL-2015-00248). 22 This Court has made clear that "in construing a statute, the courts frequently 'follow the course of legislation on the subject, the lineage of the act being thought to illuminate the intent of the legislature.'" People v. Litto, 8 N.Y.3d 692, 697 (2007) (citation omitted). 31 The combination of (a) the Legislature's longstanding acquiescence in Respondents' implementation of laws like VTL § 1193(2)(c)(1), (b) the passing of VTL § 1193(2)(b)(12), and (c) the failure to pass a multitude of proposed laws that contained provisions similar to those contained in the Regulations, is as clear of a statement from the Legislature as there can possibly be that the existing treatment of recidivist DWI offenders was exactly what the Legislature wanted -- and thus that the Regulations constitute illegal administrative policymaking. 32 8. The decision of the Appellate Division majority cannot be reconciled with a series of DWI-related decisions issued by this Court. This Court has repeatedly -- and consistently -- held that attempts to expand the scope of DWI-related statutes by construing general or ambiguous statutory language in a creative manner are improper. See, e.g., People v. Rivera, 16 N.Y.3d 654 (2011) (defendant who commits a new DWI while on a conditional license from a prior DWI cannot be prosecuted for the felony of AUO 1st, in violation of VTL § 511(3), but rather can only be prosecuted for violating VTL § 1196(7)(f), a traffic infraction); People v. Ballman, 15 N.Y.3d 68 (2010) (VTL § 1192(8) does not allow an out-of-state DWI conviction occurring prior to November 1, 2006 to be used to elevate a new DWI charge from a misdemeanor to a felony); People v. Litto, 8 N.Y.3d 692 (2007) (the term "intoxicated" in VTL § 1192(3) only applies to intoxication caused by alcohol; not to intoxication caused by any substance); People v. Prescott, 95 N.Y.2d 655 (2001) (a person cannot be charged with attempted DWI); People v. Letterlough, 86 N.Y.2d 259 (1995) (court cannot use the general, catch-all provision of PL § 65.10 to order defendant to affix a fluorescent sign stating "CONVICTED DWI" to the license plates of any vehicle that he operated); id. at 269 ("While innovative ideas to address the serious problem of recidivist drunk driving are not to be discouraged, the courts must act within the limits of their authority and cannot overreach by using their probationary powers to accomplish what only the legislative branch can do"). 33 See generally People v. Moselle, 57 N.Y.2d 97, 109 (1982) ("It is not seriously challenged that section 1194 has preempted the administration of chemical tests for determining alcoholic blood content with respect to violations under section 1192 of the Vehicle and Traffic Law. The detail of the statutory prescriptions and the positioning of the section in the Vehicle and Traffic Law leave no room for doubt in this regard"). The DWI statutes comprise pages and pages of the VTL, and the DWI-related vehicular crimes statutes comprise pages and pages of the Penal Law. DWI-related issues are legislated down to minutiae -- from arrest to sentencing and everything in between (e.g., field testing, chemical testing, test refusals, effect of test result, suspension pending prosecution, plea bargain limitations, criminal sanctions, driver's license sanctions, civil penalties, driver responsibility assessments, Drinking Driver Program, STOP-DWI Program, Victim Impact Panel, alcohol assessment/treatment, conditional licenses, ignition interlock devices, out-of-state convictions, underage offenders, recidivist offenders, commercial drivers, "special vehicles," child in vehicle, etc.). See, e.g., VTL §§ 1192-99. In Prescott, this Court noted that: In the early 1980's, drunk driving became a dominant social issue. . . . In response, the Legislature enacted a series of reforms and in 1988 consolidated and recodified pertinent provisions into a single article. Article 31 emerged as a tightly and carefully integrated statute the sole purpose of which is to address drunk driving. 95 N.Y.2d at 659 (citations omitted). See also id. at 659 n.3: 34 Under article 31, the offenses and penalties are systematically interwoven with police procedures and rehabilitative programs. Section 1192 defines the offenses and section 1193 sets forth the sanctions (both criminal and administrative). Section 1194 details arrest and field test guidelines for section 1192 violations including the administration of chemical tests and penalties for driver refusals of testing. Section 1195 prescribes the circumstances when and how chemical test evidence is to be admitted. Section 1196 establishes an alcohol and drug rehabilitation program and sets forth eligibility criteria in the context of section 1192 violations. Section 1196 also creates a "conditional license" for program participants that affords limited and essential driving privileges to a holder. The section also authorizes, with some restrictions, termination of the license suspension or revocation after completion of the program. Finally, section 1197 authorizes counties to establish their own driving while intoxicated prevention programs. (Citations omitted). See also VTL § 1198 ("Installation and operation of [IIDs]"); VTL § 1198-a ("Special procedures and disposition involving alcohol and substance abuse assessment and treatment"); VTL § 1199 ("Driver responsibility assessment"). Unlike most other criminal statutes, the DWI laws are routinely revisited and amended. See, e.g., Litto, 8 N.Y.3d at 693 ("Over the last 97 years, the Legislature has crafted and repeatedly refined statutes with the goal of removing from the road those who drive while intoxicated"). Whether the issue is labeled "field preemption" or is simply a consistent application of McKinney's Statutes § 97,23 this Court has made clear that in the field of DWI law the Legislature's silence is deafening. 23 It is fair to say that the principles articulated in McKinney's Statutes § 97 were relevant to, if not dispositive of, this Court's decisions in Rivera, Ballman, Litto, Prescott and Letterlough. 35 In sum, the DWI laws have been amended and refined so often, and for so long, that they by definition always come as close as possible to expressing the present intent of the majority of the Legislature. In this regard, the third Boreali factor (i.e., whether "the agency acted in an area in which the Legislature had repeatedly tried -- and failed -- to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions"), Boreali, 71 N.Y.2d at 13, surely weighs in Petitioner's favor. Aside from the fact that the Legislature repeatedly revisits and refines the DWI laws, the Legislature also routinely fails to pass proposed "get-tougher-on-DWI" laws. See, e.g., 2011 New York Senate Bill No. 6496; 2011 New York Assembly Bill No. 8934- B; 2013 New York Senate Bill No. 7175, § 1; 2013 New York Senate Bill No. 6355, § 3; 2013 New York Assembly Bill No. 1933, § 2; 2013 New York Senate Bill No. 6287, § 2; 2013 New York Assembly Bill No. 3347, § 3; 2013 New York Senate Bill No. 739, §§ 1 & 2; 2013 New York Assembly Bill No. 2279, § 1; 2013 New York Senate Bill No. 6355, § 2; 2013 New York Assembly Bill No. 5774, § 2; 2013 New York Assembly Bill No. 5775, §§ 2 & 3; 2013 New York Assembly Bill No. 4346, § 4; 2013 New York Assembly Bill No. 586, § 5; 2013 New York Assembly Bill No. 1997. The Boreali Court's comment that "[w]hile we have often been reluctant to ascribe persuasive significance to legislative inaction, our usual hesitancy in this area has no place here," 71 N.Y.2d at 13 (citations omitted), is applicable to this case. 36 9. Respondents ignore a legislative intent favoring rehabilitation and conditional driving privileges as opposed to lengthy/permanent license revocations. Respondents take the position that the prolonged and/or permanent removal of recidivist DWI offenders from the road is the best course of action. Aside from being an illegal policy- making determination, Respondents' position conflicts with multiple statutes that evince a legislative intent favoring rehabilitation and conditional driving privileges. See VTL §§ 520, 530, 1193(2)(b)(12)(c), 1193(2)(c)(2), 1196 & 1198(3).24 The Legislature has chosen the carrot. Respondents cannot ignore the Legislature and choose the stick. The Appellate Division majority, citing VTL § 520, stated: We are . . . of the view that 15 NYCRR 136.5(b)(1) is commensurate with the Legislature's policies of promoting highway safety and reducing instances of impaired or intoxicated driving (see e.g. Vehicle and Traffic Law § 520. (R. 301). VTL § 520 provides as follows: § 520. Statement of findings and declaration of purpose. The ever-increasing number of accidents, personal injuries and deaths resulting from alcohol or drug-related traffic offenses is a matter of great concern to the legislature. The diminished perception of intoxicated and impaired operators of motor vehicles presents a 24 Notably, when the Legislature enacted VTL § 1193(2)(b)(12) it was so concerned about the hardship that would be caused by its newly enacted 5- year "permanent" license revocation that it expressly authorized DMV to enact regulations permitting conditional or restricted operation of a motor vehicle after 3 years. See VTL § 1193(2)(b)(12)(c). It is inconceivable that the same Legislature that enacted VTL § 1193(2)(b)(12)(c) contemplated that DMV could utilize the old and general provisions of VTL § 1193(2)(c)(1) to revoke the driver's licenses of individuals who do not even qualify for "permanent" revocation under VTL § 1193(2)(b)(12) for 5½-years-to-life without the availability of a conditional or restricted use license. 37 constant and intolerable threat to the lives and well-being of the citizens of the state. Efforts aimed at alleviating this threat have proven inadequate. The public interest in the cause of highway safety will be well served by the implementation of a permanent program of rehabilitation for those operators convicted of alcohol or drug-related traffic offenses and certain operators who have been adjudicated youthful offenders for alcohol or drug-related traffic offenses. The commissioner of motor vehicles should have the authority to offer to such operators an opportunity for rehabilitation, thereby reducing the threat aimed at themselves and the people of the state. Contrary to the majority's position, VTL § 520 (which was enacted in 1975 and was last amended in 1979) is a 40-year-old aspirational statute that has nothing whatsoever to do with revoking driver's licenses and everything to do with promoting rehabilitation. Although VTL § 520 mentions the Legislature's perpetual concern with drunk driving, its expressly declared purpose is "the implementation of a permanent program of rehabilitation" -- which led to the creation of the Drinking Driver Program and conditional licenses. See VTL § 1196.25 In stark contrast, the focus of the Regulations is on prohibiting people from driving -- even for work and medical purposes -- for prolonged periods of time, and in many cases permanently. See 15 NYCRR § 136.5 and 15 NYCRR Part 132. 25 Notably, Respondents did not cite VTL § 520 as authorization for the Regulations. See Exhibit A. 38 10. The new lifetime look-back period constitutes illegal policymaking, conflicts with existing statutes and is otherwise ultra vires. Another aspect of the Regulations that constitutes illegal policymaking, conflicts with existing statutes and is otherwise ultra vires is the new lifetime look-back period. See 15 NYCRR § 136.5(b)(1). At the time that the Regulations were enacted, the Legislature had never utilized a look-back period of more than 10 years (unless there was physical injury or the motorist is a commercial driver). See, e.g.: 1. VTL § 1193(1)(a) (5 and 10 years); 2. VTL § 1193(1)(c)(i) (10 years); 3. VTL § 1193(1)(c)(ii) (10 years); 4. VTL § 1193(2)(b)(1) (5 years); 5. VTL § 1193(2)(b)(1-a) (10 years); 6. VTL § 1193(2)(b)(3) (10 years); 7. VTL § 1193(2)(b)(12)(a) (4 and 8 years); 8. VTL § 1193(2)(b)(12)(d) (4 and 8 years); 9. VTL § 1194(2)(d)(1) (5 years); 10. PL § 120.04(3) (10 years); 11. PL § 120.04-a(3) (10 years); 12. PL § 125.13(3) (10 years); 13. PL § 125.14(3) (10 years). These laws establish a legislative determination that DWI- related convictions that are more than 10 years old are too remote in time to enhance the consequences of a current offense -- even where serious physical injury or death is involved. 39 Notably, with the exception of part of VTL § 1193(1)(a), all of the laws with a 10-year look-back period are penal in nature; and, with the exceptions of VTL § 1193(2)(b)(1-a) and VTL § 1193(2)(b)(3), all of the laws with a shorter look-back period deal with the issue of license revocations. Thus, Respondents' determination that the look-back period should be substantially longer when dealing with license revocations as opposed to penal sanctions directly contradicts the statutory framework. Although the recently enacted "Vince's law" utilizes a 15- year look-back period, see VTL § 1193(1)(c)(ii-a), Vince's law, as originally proposed, contained a 25-year look-back period. See 2013 New York Senate Bill No. 4267. Notably, Vince's law (a) is penal in nature, and (b) only applies to individuals who (i) are currently charged with DWI (as opposed to DWAI), and (ii) have accumulated 3 or more prior DWI-related convictions within the previous 15 years -- all of which must be for crimes. Thus, Vince's law deals with individuals who are currently charged with DWI and who have been previously convicted of DWI (as opposed to DWAI) at least 3 times. Nonetheless, although the originally proposed law would have been a class C felony, the enacted version is a class D felony. Vince's law demonstrates that, to this day, the Legislature is still both (a) unwilling to utilize a 25-year look-back period, and (b) vigorously debating the issue of how to best -- yet fairly -- address the issue of recidivist DWI offenders. 40 11. The Regulations are in various respects arbitrary and capricious. Pursuant to the Regulations, motorists who have accumulated either 5 DWI-related convictions within their entire lifetimes, or 3 or 4 DWI-related convictions and a "serious driving offense" within a 25-year time period, will be permanently revoked. See 15 NYCRR §§ 136.5(b)(1) & 136.5(b)(2). "Serious driving offense" is defined as: (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of [2] or more violations for which [5] or more points are assessed on a violator's driving record pursuant to Section 131.3 of this Title; or (iv) 20 or more points from any violations. 15 NYCRR § 136.5(a)(2). The most common "serious driving offenses" are accumulating 20 points -- or 2 traffic infractions that carry 5 or more points -- within 25 years. Common traffic infractions that carry 5 or more points are cell phone and texting infractions (5 points), see 15 NYCRR § 131.3(b)(4)(iii), and driving 21-30 MPH over the speed limit (6 points). See 15 NYCRR § 131.3(b)(3)(i). Since, under the Regulations, 5 DWI-related convictions is treated the same as 3 DWI-related convictions combined with a serious driving offense -- and since 2 cell phone or texting infractions within 25 years constitutes a serious driving offense -- the Regulations treat 2 cell phone or texting infractions the same as 4th and 5th DWI-related convictions. 41 Similarly, since 5 DWI-related convictions is treated the same as 3 DWI-related convictions combined with a serious driving offense -- and since 20 points within 25 years constitutes a serious driving offense -- the Regulations treat 20 points within 25 years (which is less than 1 point per year over a 25-year time period) the same as 4th and 5th DWI-related convictions. Regulations that treat 2 cell phone or texting infractions -- or 20 points over a 25-year time period -- the same as 4th and 5th DWI-related convictions are not rational. Regulations that treat 2 cell phone or texting infractions -- or 20 points over a 25-year time period -- the same as fatal accidents and driving- related Penal Law convictions are not rational. Under the Regulations, 3 DWI-related convictions combined with two 5-point traffic infractions results in a permanent license revocation, see 15 NYCRR § 136.5(b)(2), whereas 4 DWI- related convictions combined with one 5-point traffic infraction does not. See 15 NYCRR § 136.5(b)(3). Thus, under the Regulations a cell phone, texting or speeding infraction can be far worse than a 4th DWI conviction. That is not rational. Under the Regulations, the felony of Aggravated Unlicensed Operation of a Motor Vehicle in the 1st Degree ("AUO 1st"), see VTL § 511(3), is not an "alcohol- or drug-related driving conviction or incident." See 15 NYCRR § 136.5(a)(1). That is not rational. Equally irrational is the fact that AUO 1st does not constitute a "serious driving offense" under the Regulations. See 15 NYCRR § 136.5(a)(2). See also page 45, infra. 42 The Appellate Division majority's attempts to rationalize the arbitrary aspects of the Regulations are not legally sound, and are in various respects not even accurate. The majority, citing its prior decision in Matter of Acevedo v. New York State Dep't of Motor Vehicles, 132 A.D.3d 112 (3d Dep't 2015), stated: [W]e would agree with respondents that they had a rational basis for excluding aggravated unlicensed operation of a motor vehicle in the first degree and youthful offender adjudications of driving while intoxicated from the definition [of "alcohol- or drug- related driving conviction or incident"]. (R. 302). In Acevedo, the majority stated: Petitioner's remaining contentions do not require extended discussion. While a conviction for aggravated unlicensed operation of a motor vehicle in the first degree and a youthful offender adjudication of driving while intoxicated are excluded from the regulation's definition of alcohol- or drug- related driving conviction or incident, a rational basis exists to support these exclusions, as a person need not be under the influence of alcohol or drugs to be convicted of aggravated unlicensed operation of a motor vehicle in the first degree, and youthful offender adjudications "are confidential and may not be made available to any . . . public . . . agency" (CPL 720.35[2]). 132 A.D.3d at 122 (citations omitted). The fact that not all AUO 1st offenses are DWI-related does not excuse Respondents' failure to include DWI-related AUO 1st convictions within the definition of "alcohol- or drug-related driving conviction or incident." With regard to the issue of excluding DWI-related youthful offender adjudications from the definition, the Acevedo majority stated that a rational basis exists for doing so because "youthful offender adjudications 43 'are confidential and may not be made available to any . . . public . . . agency' (CPL 720.35(2))." 132 A.D.3d at 122. This statement is not accurate. DWI-related youthful offender adjudications are, of course, made available to DMV. See VTL § 513(b); VTL § 1193(2)(e)(4). In addition, except for their use under the Regulations, DWI- related youthful offender adjudications result in the same consequences as an actual DWI conviction. In this regard, VTL § 1193(2)(e)(4) provides as follows: (4) Youthful offenders. Where a youth is determined to be a youthful offender, following a conviction of a violation of [VTL § 1192] for which a license suspension or revocation is mandatory, the court shall impose such suspension or revocation as is otherwise required upon conviction and, further, shall notify the commissioner of said suspension or revocation and its finding that said violator is granted youthful offender status as is required pursuant to [VTL § 513]. There is no rational basis for omitting DWI-related youthful offender adjudications from the definition of "alcohol- or drug- related driving conviction or incident" while including Zero Tolerance law adjudications within the definition. In fact, the failure to include youthful offender adjudications within the definition of "alcohol- or drug-related driving conviction or incident" conflicts with every DWI-related statute addressing the issue. See, e.g., VTL §§ 1193(1)(b)(ii); 1193(1)(c)(iii); 1193(2)(b)(6); 1193(2)(b)(7); 1193(2)(b)(8); 1193(2)(c)(2); 1193(2)(e)(4); 1196(4); 1809(10); 1809-c(4). 44 In the related case of Matter of Matsen v. New York State Dep't of Motor Vehicles, 134 A.D.3d 1283 (3d Dep't 2015), see page i, supra, the Appellate Division majority stated: We also reject petitioner's additional argument that the definition of "serious driving offense" is arbitrary because it does not expressly include convictions for aggravated unlicensed operation of a motor vehicle in the first degree and leaving the scene of an accident resulting in serious physical injury, both of which are felonies (see Vehicle and Traffic Law §§ 511[3]; 600[2][c]). While neither is expressly designated as a serious driving offense, both are covered by the definition thereof, as they are "driving-related Penal Law conviction[s]" (15 NYCRR 136.5[a][2][ii]). Id. at 1286 n.3 (emphasis added). The highlighted statement is not accurate. AUO 1st and leaving the scene of an accident resulting in serious physical injury are Vehicle and Traffic Law offenses -- not Penal Law offenses. 15 NYCRR § 136.5(a)(2)(ii) clearly and expressly only applies to driving-related Penal Law convictions.26 Although Petitioner is not directly impacted by 15 NYCRR § 136.5(b)(2), this Regulation is brought to the Court's attention to demonstrate (a) that the Regulations are in various respects arbitrary and capricious, (b) that no special expertise or technical competence was involved in their development, see page 46, infra, and (c) the depths to which the lower courts have been willing to sink to uphold them. 26 Notably in this regard, Respondents have never disputed the assertion that AUO 1st and leaving the scene of an accident resulting in serious physical injury do not count for purposes of the Regulations. 45 12. No special expertise or technical competence was involved in the development of the Regulations. The fourth Boreali factor is whether "special expertise or technical competence in the [relevant field] was involved in the development of the . . . regulations." Boreali, 71 N.Y.2d at 14. In this regard, the Boreali Court stated: Finally, although indoor smoking is unquestionably a health issue, no special expertise or technical competence in the field of health was involved in the development of the antismoking regulations challenged here. Faced with mounting evidence about the hazards to bystanders of indoor smoking, the PHC drafted a simple code describing the locales in which smoking would be prohibited and providing exemptions for various special interest groups. Id. at 13-14. The regulations at issue in this case are for all intents and purposes indistinguishable from the regulations in Boreali. The issue of recidivist drunk drivers is unquestionably serious; but Respondents merely drafted a simple code addressing the issue. Cf. VTL §§ 1193(2)(b)(12) & 1198. Regardless, the Regulations so obviously constitute policy- making that resort to the fourth Boreali factor is unnecessary. See Hispanic Chambers of Commerce, 23 N.Y.3d at 700-01 ("In light of Boreali's central theme that an administrative agency exceeds its authority when it makes difficult choices between public policy ends, rather than finds means to an end chosen by the Legislature, we need not, in this appeal, address the fourth Boreali factor"). 46 13. The Appellate Division dissent is clearly correct. The dissenting Justices at the Appellate Division stated: We respectfully dissent, essentially for the same reasons articulated in the dissent in [Acevedo]. The circumstances here are even more compelling. * * * [I]t is our view that the regulatory imposition of a permanent lifetime ban against a driver with [5] or more alcohol- related convictions or incidents during his or her lifetime exceeds the Commissioner's administrative authority. As indicated, even when a driver has [5] alcohol-related convictions within an [8]-year period, the Commissioner may waive the resulting permanent revocation after [8] years. In contrast to this statutory authority, the regulation creates a "general policy" mandating a permanent revocation for that very same driver and beyond for drivers, such as petitioner, whose infractions span a lifetime. . . . In effect, the Commissioner has abdicated her statutory mandate to exercise discretion in the first instance in favor of a general rule mandating a permanent revocation, waivable only under limited and difficult-to-define circumstances. This is not merely filling in an interstitial gap in the statutory structure, but a comprehensive policy determination that crosses the "difficult-to-define line between administrative rule-making and legislative policy-making." As such, we would grant the petition to the extent that [15] NYCRR 136.5(b)(1) should be declared null and void, and remit the matter to the Commissioner for further consideration of petitioner's relicensure application. (R. 303, 304-05) (citations and footnotes omitted).27 The dissenting opinion is well reasoned and legally sound. 27 See also id. at n.2 ("Particularly troubling here is that the Commissioner effectively ignored that aspect of petitioner's administrative appeal seeking a waiver, by reasoning that the permanent revocation was mandated and not an 'abuse of discretion,' without any express analysis as to whether petitioner had shown 'unusual extenuating or compelling circumstances'"). 47 By contrast, as is set forth above, the Appellate Division majority, among other things, (a) made assertions regarding both the law and the Regulations that are not accurate, (b) cited statutes in support of its position that are inapplicable to this case and/or do not stand for the proposition for which they are cited, (c) failed to apply numerous applicable and dispositive doctrines of statutory construction, (d) failed to address adverse authority, and (e) grossly misapplied Boreali. All four Boreali factors favor Petitioner's position. The Regulations clearly (a) constitute a regulatory scheme based on Respondents' own ideas of sound public policy, (b) constitute a comprehensive set of rules written on a clean slate without benefit of legislative guidance (or even one single standard, safeguard or guideline limiting Respondents' discretion), (c) deal with a topic that the Legislature repeatedly tries and fails to reach agreement upon in the face of substantial public debate, and (d) required no special expertise or technical competence to develop. See Boreali v. Axelrod, 71 N.Y.2d 1, 12-14 (1987). This case is virtually indistinguishable from Boreali. As such, a ruling in Respondents' favor would set a precedent that would be impossible to reconcile with Boreali (particularly in light of the Court's recent decision in Hispanic Chambers of Commerce). The decision of the Appellate Division majority is a classic example of a hard case making bad law. 48 POINT II RESPONDENTS ACTED ILLEGALLY IN APPLYING THE NEW REGULATIONS RETROACTIVELY TO PETITIONER In Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988), the Supreme Court held that: Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant. (Emphases added) (citations omitted). See also Matter of Linsley v. Gallman, 38 A.D.2d 367, 369 (3d Dep't 1972) ("There is a presumption that legislative rules are to be applied only prospectively"), aff'd on opinion below, 33 N.Y.2d 863 (1973). The Appellate Division majority summarily disposed of Petitioner's claim that the Regulations were illegally applied retroactively to his application for relicensure. See (R. 302) ("we reject petitioner's contention that the regulation impermissibly applies retroactively"). The majority stated that 15 NYCRR 136.5(b)(1) "clearly inform[s] motorists of the point at which the Commissioner, in her discretion, has determined that a person's persistent irresponsibility behind the wheel poses too great a danger to other motorists for that person to be relicensed" (R. 301). 49 This statement is only accurate if the Regulations are applied prospectively to offenses committed on or after September 25, 2012. It has no application where, as here, Petitioner's most recent offense was committed long before Respondents announced their new policy. Regardless, applying the Regulations to motorists, like Petitioner, who, among other things: (a) pled guilty to all of their DWI-related offenses under the old regulations; (b) served their full sentences under the old regulations; (c) enrolled in and successfully completed alcohol/drug treatment under the old regulations; (d) paid their fines, civil penalties and driver responsibility assessments under the old regulations; (e) planned their lives and futures based upon the old regulations; and (f) were deemed to be first offenders under the old regulations; is nothing short of unconscionable. It is fundamentally unfair. These people, despite their driving records, are citizens who have the same rights as everyone else. Moreover, there has been no change in circumstances that makes them more of a danger to the community than similarly situated individuals have always been. In other words, there was no legitimate "emergency" that justified applying the Regulations to situations where the motorist's most recent DWI-related offense was committed prior to their enactment. 50 CONCLUSION Over 60 years ago, this Court stated: We are here dealing with the exercise of power by the commissioner in the revocation of a driver's license, and our decision will apply not only to this petitioner, but may affect any other holder of a driver's license in the State of New York. A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process. If in the instant case it may be done loosely and informally and without regard to the statutes in such case made and provided, then it may be done in any case, and every automobile driver in the State will be at the mercy of the commissioner and his assistants. However much we may recognize the need for the rightful exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways, it would be a dangerous step indeed if we permitted him to follow any loose practice formulated by him, regardless of the law. Matter of Wignall v. Fletcher, 303 N.Y. 435, 441 (1952). The principles articulated in Wignall are equally applicable today. For the reasons stated above, the Decision below should be reversed and the Petition should be granted. Dated: February 18, 2016 Respectfully submitted, GERSTENZANG, O'HERN, SILLS & GERSTENZANG By:_____________________________________ Eric H. Sills, Esq., of Counsel Attorneys for Petitioner-Appellant 210 Great Oaks Boulevard Albany, New York 12203 (518)456-6456 51