In the Matter of Kevin B. Acevedo, Appellant,v.New York State Department of Motor Vehicles, et al., Respondents.BriefN.Y.March 23, 2017APL-2015-00248 To be argued by: JEFFREY W. LANG Time requested: 15 minutes Albany County Index No. 2393-13 State of New York Court of Appeals In the Matter of the Application of KEVIN B. ACEVEDO, Appellant, -against- NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES and BARBARA J. FIALA, as New York State Commissioner of Motor Vehicles, Respondents. BRIEF FOR RESPONDENTS BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General JEFFREY W. LANG JONATHAN D. HITSOUS Assistant Solicitors General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents The Capitol Albany, New York 12224-0341 (518) 776-2027 Dated: June 29, 2016 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ...................................................................... iv PRELIMINARY STATEMENT .................................................................. 1 QUESTIONS PRESENTED....................................................................... 2 STATEMENT OF THE CASE ................................................................... 4 A. DMV Exercises Statutory Authority over the Relicensing of Individuals Whose Licenses Were Revoked for Drunk Driving ...................................................................................... 4 1. License Revocations ........................................................ 4 2. License Reissuance ......................................................... 7 B. DMV Has Periodically Revisited its Regulatory Approach to the Problem of Recidivist Drunk Drivers .......... 9 1. Past Amendments to Part 136 ..................................... 10 2. Following the 2011 amendments, DMV Reviews Part 136 ......................................................................... 11 3. The 2012 Amendments ................................................. 13 C. Acevedo’s Recidivist Drunk Driving Results in a Third Revocation of his Driver’s License ......................................... 16 D. DMV Applies the Regulatory Waiting Period in Denying Acevedo’s Third Post-Revocation Relicensing Application .. 17 E. The Lower Courts Uphold the Validity of the Regulatory Waiting Period ........................................................................ 18 SUMMARY OF ARGUMENT .................................................................. 24 ii TABLE OF CONTENTS (cont'd) PAGE ARGUMENT POINT I THE COURT SHOULD DISMISS THIS APPEAL AS NON- JUSTICIABLE ............................................................................ 25 POINT II THE REGULATORY WAITING AND RESTRICTED-LICENSE PERIODS DO NOT CONFLICT WITH THE VEHICLE AND TRAFFIC LAW ........................................................................... 30 A. The regulatory waiting and restricted-license periods merely implement DMV’s discretionary authority to decide relicensing applications after the lapse of a mandatory period. .................................................................. 31 B. The regulatory waiting and restricted-license periods do not conflict with the permanent revocation scheme. ............ 34 C. The 25-year regulatory look-back period does not conflict with any statutory look-back period. .................................... 40 D. The restricted-license provision is likewise consistent with DMV’s authority under the Vehicle and Traffic Law. ........................................................................................ 41 POINT III DMV’S ADOPTION OF THE REGULATORY WAITING AND RESTRICTED-LICENSE PERIODS COMPLIES WITH THE SEPARATION-OF-POWERS DOCTRINE ........................................ 47 A. DMV stayed within its regulatory role. ................................ 49 1. The regulatory waiting and restricted-license periods further DMV’s legislative mission. ................. 50 2. DMV merely filled in the details of the Legislature’s policy regarding drunk driving. ............. 54 iii TABLE OF CONTENTS (cont'd) PAGE 3. The Legislature has not substantially debated the relicensing of recidivist drunk drivers. ........................ 57 4. The regulatory waiting and restricted-license periods reflect DMV’s expertise. .................................. 59 B. DMV did not abdicate its discretion in enacting regulations to guide its discretion. ........................................ 61 POINT IV DMV LAWFULLY CONSIDERED ACEVEDO’S DRUNK- DRIVING CONVICTIONS INCURRED BEFORE THE PROMULGATION OF THE RULES ............................................................................... 63 POINT V THE DEFINITION OF AN “ALCOHOL- OR DRUG-RELATED DRIVING CONVICTION OR INCIDENT” HAS A RATIONAL BASIS .. 68 CONCLUSION ......................................................................................... 70 iv TABLE OF AUTHORITIES CASES PAGE Allen v. N.Y.S. Dep’t of Motor Vehicles, 45 Misc. 3d 475 (Sup. Ct., Albany Co. 2014), aff’d on other grounds, 133 A.D.3d 1167 (2015) ............................. 46 Ass’n for a Better Long Island, Matter of v. Dep’t of Envtl. Conservation, 23 N.Y.3d 1 (2014) ................................................................. 26,27,28 Barnes, Matter of v. Tofany, 27 N.Y.2d 74 (1970) ......................................................................... 67 Bd. of Educ. of City Sch. Dist. of City of Lockport v. Licata, 42 N.Y.2d 815 (1977) ....................................................................... 31 Bell v. Burson, 402 U.S. 535 (1971) ......................................................................... 66 Birchfield v. North Dakota, 579 U.S.__ (June 23, 2016) ................................................................ 1 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ................................................................... passim Bourquin v. Cuomo, 85 N.Y.2d 781 (1995) ....................................................................... 48 Carney, Matter of v. Dep’t of Motor Vehicles, (APL-2016-0021) ......................................................................... 2n,4n Charles A. Field Delivery Serv., Inc., Matter of, 66 N.Y.2d 516 (1985) .................................................................. 61-62 Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398 (1991) ....................................................................... 55 v TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Consol. Edison Co. of N.Y., Inc. v. Dep’t of Envtl. Conservation, 71 N.Y.2d 186 (1988) ............................................................. 38,51,59 Dahlgren, Matter of . N.Y.S. Dep’t of Motor Vehicles, 124 A.D.3d 1400 (4th Dep’t), lv. denied, 25 N.Y.3d 909 (2015) .................................................... 19n,25n,28,43 Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) ........................................................... 67 Forti, Matter of v. State Ethics Comm’n, 75 N.Y.2d 596 (1990) ....................................................................... 64 Friedman v. Conn. Gen. Life Ins. Co., 9 N.Y.3d 105 (2007) ......................................................................... 37 General Electric Capital Corp. v. Division of Tax Appeals, 2 N.Y.3d 249 (2004) ......................................................................... 32 Greater N.Y. Taxi Ass’n v. New York City Taxi and Limousine Commission 25 N.Y.3d 600 (2015) ............................................................. 51,52,53 Greenholtz v. Inmates of Ne. Penal and Corr. Complex, 422 U.S. 1 (1979) ............................................................................. 66 Hearst v. Clyne, 50 N.Y.2d 707 (1980) ....................................................................... 29 Hussain v. State of New York, 81 A.D.3d 132 (3d Dep’t 2011), aff’d, 19 N.Y.3d 899 (2012) ....................................................................... 27 I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ......................................................................... 65 vi TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Kellogg, Matter of v. Travis, 100 N.Y.2d 407 (2003) ..................................................................... 67 Matsen, Matter of v. Dep’t of Motor Vehicles, (APL-2016-0054) .............................................................................. 2n McKevitt, Matter of v. Fiala, 129 A.D.3d 730 (2d Dep’t 2015) .................................................... 25n Med. Soc’y of N.Y., Matter of v. Serio, 100 N.Y.2d 854 (2003) ...................................................... 30,52,55,59 Miller v. Alabama, 132 S. Ct. 2455 (2012) ..................................................................... 70 Miller, Matter of v. DeBuono, 90 N.Y.2d 783 (1997) ....................................................................... 65 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) .................................................................. 52,53 NYC C.L.A.S.H. v. Office of Parks, Recreation & Historic Preservation, 27 N.Y.3d 174 (2016) ............................................................... passim N.Y.S. Ass’n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207 (2004) ......................................................................... 26 Oswald N., Matter of, 87 N.Y.2d 98 n.1 (1995) ................................................................... 58 People v. Drayton, 39 N.Y.2d 580 (1976) ....................................................................... 69 vii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE People v. Letterlough, 87 N.Y.2d 259 (1995) ....................................................................... 44 People v. Prescott, 95 N.Y.2d 655 (2001) ....................................................................... 46 Pringle v. Wolfe, 88 N.Y.2d 426 (1996) .................................................................. 55,65 Rent Stabilization Ass’n. of New York City v. Higgins, 83 N.Y.2d 156 (1993) ............................................................. 56,58,61 Riegert Apts. Corp. v. Planning Bd. of Town of Clarkson, 57 N.Y.2d 206 (1982) ....................................................................... 30 Scism, Matter of v. Fiala, 122 A.D.3d 1197 (3d Dep’t 2014) .................................................. 19n Shearer, Matter of v. Fiala, 124 A.D.3d 1291 (4th Dep’t), lv. denied, 25 N.Y.3d 909 (2015) ................................................................ 25n,41 Soc’y of Plastics Indus. v. Cty. of Suffolk, 77 N.Y.2d 761 (1991) ....................................................................... 26 Spence, Matter of v. Shah, 136 A.D.3d 1242 (3d Dep’t), lv. denied, 2016 WL 3199401 (June 9, 2016) ................................................... 29 St. Clair Nation, Matter of v. City of N.Y., 14 N.Y.3d 452 (2010) ....................................................................... 64 Swalbach, Matter of v. State Liquor Auth., 7 N.Y.2d 518 (1960) ......................................................................... 62 viii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Weiss v. City of N.Y., 95 N.Y.2d 1 (2000) ........................................................................... 30 Weeks Woodlands Assoc. v. Dormitory Auth. of State of N.Y., 95 A.D.3d 747 (1st Dep’t), aff’d, 20 N.Y.3d 919 (2012) ....................................................................... 30 STATE CONSTITUTION Article II § 1 ................................................................................................. 48 STATE STATUTES C.P.L.R. article 78 ....................................................................................... 1,18 § 5601(a) ........................................................................................... 24 Penal Law § 65.10 .............................................................................................. 45 § 65.10(1) .......................................................................................... 44 § 65.10(2)(k-1) .................................................................................. 45 Vehicle and Traffic Law article 31 .......................................................................................... 55 § 210 .............................................................................................. 4,45 § 215(a) .......................................................................................... 4,42 § 216-a .............................................................................................. 60 § 501(1) ............................................................................................... 4 § 501(2)(c) ................................................................................. passim § 508 .............................................................................................. 4,50 § 510(6) ............................................................................................... 4 § 520 ................................................................................................. 57 § 530 ................................................................................................. 47 § 1192 ..................................................................................... 4n,13,55 ix TABLE OF AUTHORITIES (cont’d) PAGE STATE STATUTES (cont’d) Vehicle and Traffic Law (cont’d) § 1192(3) ........................................................................................... 46 § 1193(1) ............................................................................................. 4 § 1193(2)(a) ........................................................................................ 5 § 1193(2)(b) .............................................................................. passim § 1193(2)(b)(1)-(8) .............................................................................. 6 § 1193(2)(b)(3) .................................................................................. 16 § 1193(2)(b)(12) ........................................................................ passim § 1193(2)(b)(12)(a) ................................................................... passim § 1193(2)(b)(12)(b) ................................................................... passim § 1193(2)(b)(12)(d) ........................................................................ 7,36 § 1193(2)(b)(12)(e) .................................................................... 7,8n,36 § 1193(2)(c) ......................................................................................... 8 § 1193(2)(c)(1) .......................................................................... passim § 1193(2)(c)(2) .................................................................................... 8 § 1193(2)(c)(3) ........................................................................ 8,16n,34 § 1194(b)-(d) ..................................................................................... 5n § 1198 ............................................................................................... 45 § 1198(3)(d) ...................................................................................... 45 L. 1988, ch. 47 § 18 ..................................................................................... 8 STATE RULES AND REGUALTIONS 15 N.Y.C.R.R. § 3 ............................................................................................... 52n § 3.2(c)(3) .......................................................................................... 46 § 3.2(c)(4) ................................................................................... 15n,42 § 8.2 ................................................................................................... 5 § 131 ............................................................................................... 52n § 135.9(b) ................................................................................... 15n,42 § 136 ......................................................................................... passim § 136.1(b)(1) .................................................................................. 9,11 § 136.1(b)(3) ....................................................................................... 9 x TABLE OF AUTHORITIES (cont’d) PAGE STATE RULES AND REGULATIONS (cont’d) 15 N.Y.C.R.R. (cont’d) § 136.1(b)(6) ................................................................................... 10n § 136.4 .............................................................................................. 52 § 136.4(a)(2) ....................................................................................... 9 § 136.4(a)(3) ..................................................................................... 10 § 136.4(b) .............................................................................. 11,15n,42 § 136.5(a)(1) ..................................................................................... 13 § 136.5(a)(2) ..................................................................................... 14 § 136.5(a)(3) .............................................................................. 14n,40 § 136.5(b)(1) ................................................................................ 14,25 § 136.5(b)(2) ................................................................................ 14,25 § 136.5(b)(3) ............................................................................. passim § 136.5(b)(6) ................................................................................... 16n § 136.5(d) ..................................................................................... 16,33 § 136.6 .............................................................................................. 52 § 136.6(a)(7)(ii)(2006) ...................................................................... 10 § 136.6(a)(8) ..................................................................................... 10 § 136.6(a)(9)(a) (1982)...................................................................... 10 § 136.9 (2006) ................................................................................... 10 § 136.10(b) ........................................................................................ 25 41 N.Y. Reg. 41 (March 13, 2013) ....................................................... 12,13 51 N.Y. Reg. 32 (Dec. 22, 2010) ................................................................ 11 MISCELLANEOUS https://dmv.ny.gov/tickets/suspensions-and-revocations .......................... 5 PRELIMINARY STATEMENT As the United States Supreme Court has recently recognized, “Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.” Birchfield v. North Dakota, 2016 WL 3434398 at *5 (June 23, 2016). To combat this problem, in 2012, respondent New York State Department of Motor Vehicles (“DMV”) strengthened its regulations governing the relicensing of individuals whose licenses have been revoked as a result of convictions for drunk driving. This hybrid C.P.L.R. article 78 proceeding/declaratory judgment action is one of three appeals now pending before the Court challenging various aspects of these regulatory amendments. In this appeal, petitioner Kevin B. Acevedo contests regulatory provisions that, on account of the number of drunk-driving convictions on his record, (a) required him to wait an additional five years before obtaining a new license, and (b) upon his reapplication after that waiting period, granted him a restricted license for the next five years allowing him to drive for only certain purposes and requiring him to 2 install an ignition interlock device (a device that prevents a vehicle from starting unless the driver’s breath alcohol level is below a certain level).1 The regulations at issue in this appeal—like those at issue in the related appeals—are presumptive rather than mandatory in their effect. They inform the public as to how DMV generally intends to exercise its discretion to decide post-revocation relicensing applications, while expressly preserving DMV’s discretion to override the generally applicable rules in special circumstances. The individuals subject to these regulations have all been given second chances—often repeated second chances—only to commit drunk- driving offenses again. The Court should reject their challenges. QUESTIONS PRESENTED 1. Should Acevedo’s appeal be dismissed as non-justiciable, on the bases that (a) his challenge to the five-year restricted-license provision was not yet ripe for review when this matter was before 1 The other two appeals involve regulatory provisions that, for the most egregious cases, specify that DMV will decline ever to relicense applicants. See Matter of Carney v. Dep’t of Motor Vehicles (APL-2016-0021); Matter of Matsen v. Dep’t of Motor Vehicles (APL-2016-0054). 3 Supreme Court, and (b) his challenge to the five-year waiting period is moot because that period has now passed? 2. Assuming that Acevedo’s challenges to either one or both of those regulatory provisions are properly before the Court, are those provisions consistent with DMV’s authority under the Vehicle and Traffic Law to grant or deny relicensing applications in its discretion? 3. Are those regulatory provisions consistent with the separation-of-powers doctrine, because they enable DMV to perform its statutory duties to protect the public, to inform the public about how DMV generally intends to use its statutory discretion to decide relicensing applications, and to facilitate equal treatment of similarly situated applicants? 4. In rendering relicensing determinations, may DMV lawfully consider drunk-driving convictions that an applicant incurred before the promulgation of the relicensing regulations? 5. Does the regulatory definition of an “alcohol- or drug-related driving conviction or incident” reasonably omit from its scope youthful- offender adjudications? 4 STATEMENT OF THE CASE2 A. DMV Exercises Statutory Authority over the Relicensing of Individuals Whose Licenses Were Revoked for Drunk Driving The Vehicle and Traffic Law (the “VTL”) entrusts DMV with safeguarding those who travel on New York’s roads, and tasks the agency with developing safety programming. VTL § 210. To this end, DMV may issue drivers’ licenses, see VTL § 501(1), suspend or revoke such licenses, and decide whether to issue new licenses to individuals whose licenses were previously revoked, see VTL § 510(6). DMV may also enact regulations as needed to exercise its statutory powers in a consistent and effective manner. VTL § 215(a). This authority includes the authority to issue licensing regulations. VTL § 508. 1. License Revocations Most drunk-driving offenses carry criminal consequences. See VTL § 1193(1) (criminal sanctions).3 A conviction for any such offense 2 The descriptions of the Vehicle and Traffic Law and DMV’s relicensing regulations that follow are repeated in our brief to this Court in Matter of Carney v. New York State Dep’t of Motor Vehicles, which is being filed and served within days of this brief. 3 The VTL criminalizes driving while impaired or intoxicated by both alcohol and drugs. See VTL § 1192. 5 typically carries administrative consequences as well, in the form of license suspension, VTL § 1193(2)(a), or license revocation, VTL § 1193(2)(b).4 Whereas a suspension allows an individual’s driving privilege to be restored either automatically or upon satisfaction of certain conditions (the payment of a fee, for example), a revocation cancels the individual’s driving privilege altogether. An individual whose license has been revoked must apply for a new driver’s license, and will usually be required to re-take the road test. See N.Y. Comp. Codes R. & Regs. tit. 15 (“15 N.Y.C.R.R.”) § 8.2 (identifying discrete situations in which the road-test requirement may be waived). If DMV approves the application, it issues a new driver’s license; it does not reissue the original revoked one. See https://dmv.ny.gov/tickets/ suspensions-and-revocations. Most convictions for drunk-driving offenses result in the automatic revocation of a driver’s license, rather than a suspension. The most common kind of revocation is followed by a minimum waiting period during which the offender remains ineligible for a new license. 4 Similar administrative consequences may also be imposed as a result of a finding by DMV that a driver suspected of drunk driving has refused to submit to a chemical test. See VTL § 1194(b)–(d). 6 VTL § 1193(2)(b). The length of this statutory waiting period—generally between six and eighteen months—depends on several factors, including the offense of conviction and the number of prior offenses within various look-back periods. See VTL §§ 1193(2)(b)(1) to (2)(b)(8). In two limited circumstances, which do not apply in any of the cases before the Court but which are nonetheless relevant to the arguments that Acevedo raises here, the statute renders an individual ineligible for relicensing at any time after revocation. The statute refers to this type of revocation as a “permanent revocation.” VTL § 1193(2)(b)(12). But the statute gives DMV discretion to waive the permanent revocation upon satisfaction of specified conditions after a fixed period of time, either five or eight years. Specifically, VTL § 1193(2)(b)(12)(a) mandates permanent revocation for persons who among other things have three drunk- driving convictions within four years or four drunk-driving convictions within eight years. Nevertheless, if an individual’s license is revoked under this section, DMV “shall” waive the permanent revocation after five years if the specified conditions are met, “[p]rovided, however, that the commissioner may, on a case by case basis, refuse to restore a 7 license which otherwise would be restored pursuant to this item, in the interest of the public safety and welfare.” VTL § 1193(2)(b)(12)(b). And VTL § 1193(2)(b)(12)(d) mandates permanent revocation for drivers with still more serious driving records, namely four drunk- driving convictions within just four years or five drunk-driving convictions within eight years. For such individuals, DMV “may” waive the permanent revocation, but not before eight years have passed and the specified conditions are met; yet “nothing contained in this clause shall be deemed to require the commissioner to restore a license to an applicant who otherwise has complied with the requirements of this item, in the interest of public safety and welfare.” VTL § 1193(2)(b)(12)(e). 2. License Reissuance Once an individual’s license is revoked under any provision of VTL § 1193(2)(b) (and thus including a revocation under the permanent-revocation provisions in (2)(b)(12)), nothing in the statute entitles that individual to receive a new license ever again. Under a section captioned “Reissuance of licenses; restrictions,” the VTL provides that, unless otherwise specified, after the revocation of a 8 license under VTL § 1193(2)(b), “no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner.” VTL § 1193(2)(c)(1).5 Section 1193(2)(c) was added by the Legislature in 1988 as part of a larger effort to consolidate the definitions of drunk-driving offenses and accompanying penalties into a single article. See L. 1988, ch. 47 § 18. In 1993, the Legislature divided section 1193(2)(c) into three subparagraphs—(1), (2), and (3). As noted above, (c)(1) provides that, following a revocation for drunk driving, the granting of a new license lies within DMV’s discretion. This discretionary authority is then circumscribed by the two subparagraphs that follow, but only to the extent of barring DMV from issuing a new license under certain circumstances.6 5 And as noted above, if a permanent revocation is waived pursuant to VTL § 1193(2)(b)(12), DMV is expressly granted the discretion to refuse to relicense “in the interest of public safety and welfare.” VTL §§ 1193(2)(b)(12)(b) & (12)(e). 6 In particular, (c)(2) prohibits DMV from approving an application for an additional six months beyond the end of the otherwise applicable minimum waiting period where certain conditions apply. And (c)(3) prevents DMV from ever issuing a new license to an offender who has had two drunk-driving convictions resulting in physical injury to another person. No statutory provision compels DMV to issue a new license to a person whose license has been revoked. 9 B. DMV Has Periodically Revisited its Regulatory Approach to the Problem of Recidivist Drunk Drivers For nearly four decades, DMV has promulgated regulations codified at 15 N.Y.C.R.R. Part 136 to address the post-revocation relicensing process. Entitled “Licensing or Relicensing After Revocation Action,” Part 136 was first promulgated in 1980. It informs the public of how DMV intends to exercise its discretion to decide relicensing applications. These regulations introduced the definition of a “problem driver” as someone who would be a presumed danger to himself and others if issued a new license. 15 N.Y.C.R.R. former § 136.1(b)(1). The 1980 regulations addressed the problem of recidivist drunk drivers in two ways. First, they specified that DMV would decline to issue a new license to an applicant who had a “history of abuse of alcohol or drugs . . . with insufficient evidence of rehabilitation.” Id. former § 136.4(a)(2). A “history of abuse” was defined as two or more drunk-driving incidents over a ten-year period. Id. former § 136.1(b)(3). Second, the regulations provided that DMV would deny a new license to any applicant who had accumulated 25 or more negative safety points within the three years immediately preceding the application. 10 Id. former § 136.4(a)(3).7 At the time, drunk-driving convictions could result in anywhere from five to fourteen points, depending on the circumstances. Id. former § 136.6(a)(8). And it was DMV’s practice when denying a new license based on a history of abuse to impose an “extended waiting period” of six months for each drunk-driving conviction, to run consecutively with each other but concurrently with any statutory minimum waiting period. (Record on Appeal [“R.”] at 197.) 1. Past Amendments to Part 136 DMV has revised Part 136 many times. In 1982, for instance, DMV created a new category of negative safety points for incidents of “driving during a period of alcohol related license suspension or revocation.” 15 N.Y.C.R.R. former § 136.6(a)(9)(a) (1982). In 2006, DMV added two new drunk-driving offenses to those that were eligible for negative safety points—namely aggravated driving while intoxicated and driving while ability impaired by the combined influence of drugs and alcohol. 15 N.Y.C.R.R. former §§ 136.6(a)(7)(ii), 136.9 (2006). 7 DMV assigned negative safety points to correspond to findings of certain VTL violations. 15 N.Y.C.R.R. former § 136.1(b)(6). 11 In 2011, DMV redefined a “problem driver” to mean an applicant for a license who has a “series of convictions, incidents and/or accidents or has a medical or mental condition, which . . . upon review of the applicant’s entire driving history, establishes that the person would be an unusual and immediate risk upon the highways.” 15 N.Y.C.R.R. former § 136.1(b)(1) (2011). To determine whether an applicant was a problem driver under this provision, DMV would evaluate the applicant’s “entire driving history.” Id. If DMV found an applicant to be a problem driver, it would deny the application and decline to review a further application from the applicant for one year from the date of denial. 15 N.Y.C.R.R. former § 136.4(b). DMV promulgated the 2011 amendments out of concern that the regulations as written constrained staff to approve applications from otherwise dangerous drivers. It expected the amendments to result in more denials. 51 N.Y. Reg. 32 (Dec. 22, 2010). 2. Following the 2011 Amendments, DMV Reviews Part 136 Upon further review, DMV determined that the 2011 amendments remained inadequate to address the safety risks posed by recidivist drunk drivers. Statistics indicated that a small number of recidivist 12 drunk drivers whose applications were approved after the minimum waiting periods for relicensing were responsible for a disproportionate number of accidents. (R. 198.) Drunk drivers in general continued to cause more than 300 deaths—29% of fatal crashes—and 6,000 injuries in New York every year. See 41 N.Y. Reg. 41 (March 13, 2013). Further, 28% of drunk-driving crashes resulting in injury involved a driver with three or more drunk-driving convictions. Id. at 43. And approximately 17,500 drivers who had three or more drunk-driving convictions had been involved in at least one crash resulting in death or injury. Id.8 These statistics convinced DMV that the 2011 amendments were not adequate to deal with the problem. Although those amendments demanded lifetime review of a driver’s record, they did not “specif[y] in detail the scope of such review.” Id. DMV thus resolved to strengthen the regulations still further to keep recidivist drunk drivers off of New York’s roads “for an extended period of time and, in some cases, permanently.” (R. 198.) 8 We are advised that this statistic covers the 25-year period preceding the adoption of the 2012 amendments to Part 136. 13 Anticipating that its subsequent amendments would affect pending applications of individuals with three or more drunk-driving convictions, DMV held those applications in abeyance beginning in mid- February 2012. 41 N.Y. Reg. at 46. DMV imposed the moratorium to ensure uniform treatment of drivers with similar records. Id. The moratorium lasted until September 2012, when DMV promulgated the 2012 amendments at issue here. Id. 3. The 2012 Amendments In September 2012, DMV adopted the amendments to Part 136 that are at issue in these appeals. They were adopted as emergency regulations, and became effective immediately. The 2012 amendments take a proportionate approach by imposing on a presumptive basis longer waiting periods on applicants with more drunk-driving convictions, and by adopting a presumptive lifetime denial for the most egregious recidivists. In particular, the regulations define “alcohol- or drug-related driving conviction or incident” to include a conviction of driving while intoxicated or ability impaired under VTL § 1192, a conviction of an offense under the Penal Law for which a violation of 14 VTL § 1192 is an essential element, or a finding of a refusal to submit to a chemical test. 15 N.Y.C.R.R. § 136.5(a)(1). If an applicant has five or more such “drunk-driving convictions”9 over the course of a lifetime, DMV generally “shall deny the application.” Id. § 136.5(b)(1). Similarly, if the applicant has three or four such convictions and has committed a “serious driving offense,” as defined by 15 N.Y.C.R.R. § 136.5(a)(2), all within a 25-year look-back period,10 DMV will generally likewise deny the application. Id. § 136.5(b)(2). For applicants with three or four drunk-driving convictions within the 25-year look-back period but no “serious driving offense,” and who are currently revoked as the result of a drunk-driving conviction DMV imposes a presumptive five-year waiting period, in addition to the minimum statutory waiting period imposed by the VTL (consisting of six, twelve, or eighteen months, as described above). And after that 9 For simplicity, “alcohol- or drug-related driving convictions or incidents” are referred to here as “drunk-driving convictions.” 10 The 25-year look-back period encompasses the 25-year period preceding the date of the offense that led to the applicant’s current revocation, and ending on and including the date of the revocable offense. 15 N.Y.C.R.R. § 136.5(a)(3). 15 regulatory waiting period expires, DMV may in its discretion grant a new relicensing application, but it does not generally do so unconditionally. Instead, DMV generally imposes an additional five- year period in which the applicant may obtain a license with an A2 restriction11 conditioned on the installation of an ignition interlock device on any vehicle that the applicant owns or operates. Id. § 136.5(b)(3); see also R. 201-202. The 2012 amendments expressly reaffirm DMV’s long-standing position that Part 136 sets forth only general guidelines, and that applicants eligible for relicensing may request that DMV “deviate from the general policy” by establishing “unusual, extenuating and 11 An A2 restriction is a form of restricted license defined at 15 N.Y.C.R.R. § 3.2(c)(4), subject to the driving restrictions set forth at 15 N.Y.C.R.R. § 135.9(b). It limits the operation of any vehicle to commuting to or from the holder’s place of employment or education; any medical appointments; any driver rehabilitation programs; and the school or place that the holder’s children attend or where they receive care. The A2 restriction is further subject to any conditions that DMV may impose under 15 N.Y.C.R.R. § 136.4(b), one of which is the use of an ignition interlock device. 16 compelling circumstances” which warrant a departure from the general rules. Id. § 136.5(d).12 C. Acevedo’s Recidivist Drunk Driving Results in a Third Revocation of his Driver’s License Acevedo committed his first drunk-driving offense, driving while ability impaired, in 2002, leading to his April 2003 conviction. (R. 188.) As a result of his conviction, his license was revoked. (R. 187, 190.) DMV granted Acevedo’s subsequent relicensing application, but within just two years of obtaining a new license, he re-offended, and in 2006, he was convicted of driving while intoxicated. (R. 188.) As a result of his 2006 conviction, his license was again revoked, and as a result of the statutory minimum waiting period, he was ineligible to apply for a new license for a year. (R. 187, 191); see also VTL § 1193(2)(b)(3). After that waiting period, DMV granted his second relicensing application. Even though Acevedo had thus been given two second chances, he nonetheless drove while intoxicated again in 2007, leading to his third drunk-driving conviction in 2008. (R. 188.) Accordingly, once again, he 12 If, however, the applicant is subject to the statutory lifetime denial in VTL § 1193(2)(c)(3), he cannot avail himself of this regulatory exception for special circumstances. 15 N.Y.C.R.R. §§ 136.5(b)(6), (d). 17 remained ineligible for a new license for a mandatory one-year period. (R. 192.) Acevedo waited until October 2011 to apply for relicensing for a third time. (R. 55.) DMV initially told him that his application would proceed subject to his passing written and road tests. (R. 132.) Three days later, in February 2012, DMV withdrew its initial approval and notified Acevedo that his application was subject to additional review. (R. 193.) DMV had by then undertaken review of its criteria for relicensing recidivist drunk drivers and was holding all relicensing applications from applicants with three or more drunk-driving convictions in abeyance pending that review to ensure equal treatment of similarly situated applicants. (R. 198.) D. DMV Applies the Regulatory Waiting Period in Denying Acevedo’s Third Post-Revocation Relicensing Application In November 2012, DMV denied Acevedo’s third relicensing application under newly amended 15 N.Y.C.R.R. § 136.5(b)(3) based on his three drunk-driving convictions, as well as a property-damage accident in 2002. (R. 194; see also R. 188, 203). Acevedo was thus presumptively required to wait an additional five years from the 18 expiration of the one-year statutory waiting period before he could once again apply for relicensing, i.e., five years from April 10, 2009. (R. 134.) At that point, and assuming that he had not re-offended in the interim, he would become eligible to apply for an A2 restricted license conditioned on the use of an ignition interlock device. See id. § 136.5(b)(3). Acevedo appealed the decision, challenging the validity of the amended relicensing regulations (R. 135-164), but he never requested consideration based on any special circumstances. (R. 204.) DMV denied his administrative appeal. (R. 165-169.) E. The Lower Courts Uphold the Validity of the Regulatory Waiting Period Acevedo thereupon commenced this hybrid article 78 proceeding/ declaratory judgment action to challenge the denial of his application. (R. 51-169.) He sought to challenge not only the regulatory five-year waiting period that had been applied to him in denying his relicensing application, but also the five-year restricted-license provision that had not yet been applied to him and the presumptive lifetime-denial provisions that were not implicated by his case. As to all of these regulatory provisions, he argued that they (a) conflicted with the VTL; 19 (b) violated the separation-of-powers doctrine; and (c) represented a retroactive, ex post facto penalty by considering drunk-driving convictions that predated the regulations’ promulgation. (R. 57-58.)13 DMV answered and defended the regulations, both the provision that had been applied to deny Acevedo’s application and those that had not. (R. 178-235.) Supreme Court (Ceresia, J.) dismissed the proceeding/action, rejecting Acevedo’s challenges to DMV’s relicensing regulations as non- justiciable to the extent they challenged provisions that were not applied to him and otherwise lacking in merit. (R. 7-40.) Acevedo appealed, and a divided Appellate Division affirmed. The majority held that, as a threshold matter, Acevedo’s claims were non- justiciable in two respects. First, Acevedo lacked standing to challenge the presumptive lifetime-denial provisions because his application did not implicate those provisions. (R. 376.) Second, Acevedo’s challenge to 13 Acevedo also alleged in his complaint that DMV’s delay in processing his application pending adoption of the amended regulations was improper. He did not pursue that claim before the Appellate Division, nor does he in his brief to this Court. He thereby abandons it on appeal. In any event, both of the departments of the Appellate Division to have considered this claim have unanimously rejected it. See Matter of Scism v. Fiala, 122 A.D.3d 1197 (3d Dep’t 2014); Matter of Dahlgren v. N.Y.S. Dep’t of Motor Vehicles, 124 A.D.3d 1400, 1402 (4th Dep’t), lv. denied, 25 N.Y.3d 909 (2015). 20 the restricted-license provision was not yet ripe as of the time of Supreme Court’s decision. To the contrary, Acevedo would only become subject to that provision upon the expiration of the regulatory five-year waiting period and upon DMV’s approval on a restricted basis of a subsequent relicensing application, should he submit one. Accordingly, any harm from that provision was speculative, and he lacked a justiciable claim as to it. (R. 376.) The court’s conclusion was not altered by the fact that, while Acevedo’s appeal was pending in the Appellate Division, Acevedo applied for and DMV granted an A2 restricted license conditioned on the use of an ignition interlock device. The Appellate Division explained that justiciability was determined as of the time of Supreme Court’s decision. (R. 376, n. 2.) Addressing Acevedo’s justiciable claims, the court rejected his three main challenges to the regulations. First, the court ruled that DMV’s presumptive five-year waiting period does not conflict with the VTL. It noted that VTL § 1193(2)(b) imposes “minimum periods” during which DMV cannot issue a new license to a revoked applicant, but the VTL “vests the Commissioner with complete discretion to determine whether relicensing is appropriate once the minimum period expires.” 21 (R. 380.) The court also determined that the 25-year regulatory look- back period does not conflict with shorter statutory look-back periods used to fix minimum revocation periods. (R. 380.) Second, the court ruled that DMV did not exceed its regulatory authority under the separation-of-powers doctrine. Analyzing the “coalescing circumstances” this Court considers when assessing such claims, see Boreali v. Axelrod, 71 N.Y.2d 1, 15 (1987), the court concluded that, in adopting a five-year regulatory waiting period, DMV appropriately exercised its statutory discretion to promote highway safety and reduce the instances of impaired and intoxicated driving. (R. 379.) As to the first and second Boreali factors, the court observed that DMV has discretion to continue license revocations beyond the statutory minimum period and that recidivists pose a “heightened risk” to public safety; in light of those factors the court found that the five- year waiting period was “permissible, interstitial rulemaking.” (R. 379.) The court rejected the dissent’s view that a presumptive five-year waiting period improperly substituted for DMV’s statutory discretion to decide relicensing applications; instead the court saw the waiting-period 22 rule as a way to inform the public of how DMV intends to exercise its discretion with respect to three or four-time recidivists and ensure “that such discretion is uniformly applied to all similarly situated persons.” (R. 379.) The court recognized that the regulations specifically preserve DMV’s discretion to depart from its general position based on special circumstances. (R. 380.) As to the third factor, the court observed that the early demise of most proposed bills involving the imposition of stricter penalties on recidivist drivers “could well be an expression of the Legislature’s intent to keep intact the Commissioner’s broad discretionary authority over relicensing.” (R. 380.) And as to the fourth factor, the court found that DMV relied on its own empirical data regarding statewide injuries and deaths caused by recidivist drunk drivers, favoring the resulting regulations. (R. 380.) Third, the court rejected Acevedo’s contention that DMV improperly applied the regulations retroactively to him by taking account of drunk-driving convictions that predated the regulations. The court noted that it was not retroactive to determine a person’s present eligibility for a driver’s license by considering past conduct. The court 23 also noted that the Ex Post Facto Clause applies only to penal statutes, not regulations. (R. 381.) The court then rejected Acevedo’s challenge on rationality grounds to the definition of an “alcohol- or drug-related driving conviction or incident.” Specifically, it rejected his claim that the definition irrationally excludes convictions for aggravated unlicensed operation of a motor vehicle in the first degree and youthful offender adjudications. (R. 382.) The two Appellate Division dissenters would have reached the challenge to the five-year restricted-license period, and they would have struck both the waiting period and the restricted-license period for the same reasons. In their view, DMV exceeded its authority by abdicating its statutory discretion to decide relicensing applications on a case-by- case basis in favor of a general rule barring three or four-time recidivists from receiving an unrestricted license for a total of ten years (the two regulatory periods combined). (R. 384-385.) The dissent found support for its view from the provisions of VTL §§ 1193(2)(b)(12)(a) and (b) addressing “permanent revocation,” reasoning mistakenly that those provisions mandate the waiver of revocation after five years, though 24 they involve conduct more egregious than the conduct that subjected Acevedo to the two challenged five-year regulatory periods at issue here. (R. 385.) In light of the two-justice dissent on a question of law, Acevedo had an appeal as of right to this Court. C.P.L.R. § 5601(a). Exercising this right, he timely appealed. (R. 371.) SUMMARY OF ARGUMENT Acevedo’s challenges to DMV’s amended relicensing rules are non- justiciable, as demonstrated below. If, however, the Court finds that those challenges are properly presented for its review, it should reject them on the merits. The rules are consistent with the VTL and with the separation-of-powers doctrine, and are not impermissibly retroactive in their application to him. Moreover, there is ample rational basis for the definition of an “alcohol- or drug-related driving conviction or incident” contained in the rules. All three Appellate 25 Division departments to have considered these challenges have rejected them.14 This Court should do the same. ARGUMENT POINT I THE COURT SHOULD DISMISS THIS APPEAL AS NON- JUSTICIABLE Acevedo’s challenges to DMV’s amended relicensing rules are non- justiciable, both as to the rules that were never applied to him and also as to the rules that were. First, the Third Department properly determined that Acevedo lacked standing to challenge 15 N.Y.C.R.R. §§ 136.5(b)(1) and (b)(2), both of which adopt presumptive lifetime denials, and also 15 N.Y.C.R.R. § 136.10(b), which governs DMV’s consideration of an applicant’s request to waive a permanent revocation imposed by VTL § 1193(2)(b)(12). To establish standing to challenge these regulations, Acevedo must establish that they caused him an “injury-in- 14 In addition to the Third Department, whose decisions are now before this Court, the Second and Fourth Departments have rejected such challenges. See Matter of McKevitt v. Fiala, 129 A.D.3d 730, 731 (2d Dep’t 2015); Matter of Dahlgren v. N.Y.S. Dep’t of Motor Vehicles, 124 A.D.3d 1400, 1402 (4th Dep’t), lv. denied, 25 N.Y.3d 906 (2015); Matter of Shearer v. Fiala, 124 A.D.3d 1291, 1292 (4th Dep’t), lv. denied, 25 N.Y.3d 909 (2015). 26 fact.” Matter of Ass’n for a Better Long Island v. Dep’t of Envtl. Conservation, 23 N.Y.3d 1, 6 (2014). The requirement of an in-fact injury ensures that the party commencing the action has “an actual legal stake in the matter being adjudicated.” Soc’y of Plastics Indus. v. Cty. of Suffolk, 77 N.Y.2d 761, 772 (1991). A person has a legal stake in a matter if the challenged action actually has harmed or will harm him. N.Y.S. Ass’n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 214 (2004). If he alleges future injury, the injury must be more than conjectural or speculative. Id. at 211. None of the above-cited regulations caused Acevedo an in-fact injury because none played any role in the relicensing denial that was reviewed by Supreme Court. The presumptive lifetime-denial provisions were not applied to Acevedo because his driving record did not trigger those provisions, and the regulation addressing a waiver of a permanent revocation was not applied to Acevedo because he was not subject to a permanent revocation, and thus had no need of a waiver. Although Acevedo continues to challenge the validity of these regulations (Br. 24-25, 27-28), he does not contest—and thereby effectively concedes—the Third Department’s conclusion that he lacks 27 standing to challenge them. This Court should reach the same conclusion. Second, Acevedo lacks standing to challenge the restricted-license provision of 15 N.Y.C.R.R. § 136.5(b)(3). When he filed the underlying petition/complaint, and even by the time of Supreme Court’s decision, the applicable five-year waiting period had not yet lapsed, and thus the restricted-license provision did not apply to him. It is true that, while Acevedo’s appeal was pending in the Third Department, that five-year period expired, he reapplied for a new license, and he was granted one under the restricted-license provision. See Br. 43; R. 376. And the Third Department divided over whether Acevedo thereby acquired standing to challenge that provision. See R. 376, 382-383. But as the majority correctly noted, standing is determined as of the time of Supreme Court’s determination. See Hussain v. State of New York, 81 A.D.3d 132, 135 (3d Dep’t 2011), aff’d, 19 N.Y.3d 899, 950 (2012). By that time here, the restricted-license provision did not yet apply to Acevedo, and it was speculative as to whether it ever would. See Ass’n for a Better Long Island, 23 N.Y.3d at 9 (petitioners lacked standing to challenge regulatory amendments that had not yet affected them). 28 Nor would Acevedo’s lack of standing erect an “impenetrable barrier to review” of the restricted-license provision. See Ass’n for a Better Long Island, 23 N.Y.3d at 9. Indeed, the Fourth Department has reached and rejected just such a challenge. See Matter of Dahlgren, 124 A.D.3d at 1400. Likewise here, Acevedo could have brought a separate proceeding to challenge DMV’s new determination granting him a restricted license conditioned on the installation of an ignition interlock device, but he declined to do so. Accordingly, this Court should dismiss his challenge to the restricted-license provision for lack of standing. Third and finally, Acevedo’s challenges to the five-year waiting period in 15 N.Y.C.R.R. § 136.5(b)(3) are moot. As noted above, that period expired while Acevedo’s appeal was pending in the Third Department. Indeed, on the expiration of that period, Acevedo applied for and received a restricted license. The expiration of the five-year period and DMV’s determination of his subsequent relicensing application rendered moot his challenge to DMV’s earlier determination to deny relicensing on the basis of the five-year waiting period. 29 A case becomes moot on appeal when “the rights of the parties cannot be affected by the determination” of the appeal. Hearst v. Clyne, 50 N.Y.2d 707, 713 (1980). Acevedo’s rights as to the five-year waiting period cannot be affected by the outcome of this appeal. Even if this Court were to declare that period to be invalid and remand to DMV for a new determination on Acevedo’s first relicensing application, such a decision would not affect Acevedo’s rights because he has already put in a second relicensing application and has already received a determination on that application in which the five-year waiting period, having lapsed, was not applied to him. There is thus no meaningful relief that this Court could grant Acevedo with respect to this challenge. Nor is the challenge properly before the Court under the mootness exception, because there is no reason to think it will evade review. The five-year waiting period imposed by the regulation leaves ample time for future litigants to challenge it. Thus, this Court should dismiss this aspect of the appeal as well. See Matter of Spence v. Shah, 136 A.D.3d 1242, 1243 (3d Dep’t) (challenge to mootness may be raised for first time on appeal), lv. denied, 2106 WL 3199401 (June 9, 2016); 30 Weeks Woodlands Assoc. v. Dormitory Auth. of State of N.Y., 95 A.D.3d 747, 753 (1st Dep’t) (same), aff’d, 20 N.Y.3d 919 (2012). Because none of Acevedo’s challenges to the amended relicensing rules are justiciable, the Court should dismiss his appeal. POINT II THE REGULATORY WAITING AND RESTRICTED-LICENSE PERIODS DO NOT CONFLICT WITH THE VEHICLE AND TRAFFIC LAW Turning first to Acevedo’s statutory conflict argument, there is no conflict between the VTL and the successive five-year waiting and restricted-license periods set forth in DMV’s regulations. To be sure, regulations that conflict with a statute are invalid. See Matter of Med. Soc’y of N.Y. v. Serio, 100 N.Y.2d 854, 870-71 (2003); see also Riegert Apts. Corp. v. Planning Bd. of Town of Clarkson, 57 N.Y.2d 206, 213 (1982) (regulations were invalid “at least to the extent they conflict with the Town Law”). If a regulation is “out of harmony” with the applicable statute, “the statute must prevail.” Weiss v. City of N.Y., 95 N.Y.2d 1, 5 (2000). Where possible, however, courts read regulations “as intended to accomplish [their] purpose in harmony and not in conflict with” a statute. Bd. of Educ. of City Sch. Dist. of City of Lockport v. Licata, 31 42 N.Y.2d 815, 816 (1977) (upholding a regulation as “not necessarily inconsistent” with the statute). A. The regulatory waiting and restricted-license periods merely implement DMV’s discretionary authority to decide relicensing applications after the lapse of a mandatory period. There is no statutory conflict here, either explicit or implicit. Nothing in the VTL compels DMV to relicense an applicant who has accrued three or four drunk-driving convictions within a 25-year look- back period immediately upon the expiration of the statutory minimum waiting period and without any licensing restriction. On the contrary, VTL § 1193(2)(c)(1) affirmatively preserves DMV’s discretion to decide post-revocation relicensing applications, providing expressly that, except where relicensing is prohibited by statute, “no new license shall be issued after the expiration of the minimum period specified in [§ 1193(2)(b)], except in the discretion of the commissioner.” The VTL makes it clear that revocation and relicensing differ in an important way. Although the statute refers to “minimum” periods following a revocation, they are just that—minimum waiting periods during which a revoked individual is not even eligible for relicensing. See VTL § 1193(2)(b). Once that period expires, the individual becomes 32 eligible to apply, but he is not entitled to receive a new license. Rather, DMV must exercise its discretion to grant or deny the application. The statute thus does nothing to curb DMV’s authority to adopt by regulation successive five-year waiting and restricted-license periods beyond the statutory minimum waiting period. And although Acevedo argues (Br. 31-32) that courts have repeatedly rejected executive efforts to expand the scope of the criminal drunk-driving laws, the five-year periods at issue here do not implicate such laws, much less expand their scope. The cases cited by Acevedo involved attempts by prosecutors to expansively interpret language defining the elements of criminal offenses or establishing the range of sentencing options, and are thus inapposite to DMV’s regulatory relicensing determinations. Nor is there anything unusual about DMV’s use of a regulation to inform the public about how it has chosen to exercise its discretionary authority. Indeed, in General Electric Capital Corp. v. Division of Tax Appeals, 2 N.Y.3d 249, 254 (2004), this Court upheld a regulation that was similarly designed to inform the public about how the Department of Taxation and Finance would exercise a legislative grant of discretionary authority involving refund claims for sales taxes paid on 33 financed purchases. The statute at issue there granted the agency discretion to refund sales taxes paid on uncollectible debts to any class of applicants. On this authority, the agency promulgated a regulation authorizing refunds to certain classes of creditors, but not a third-party creditor to whom a debt had been assigned. The Court concluded that, in light of the discretion given to the agency by the statute, the agency had reasonably by regulation announced the circumstances in which it would provide refunds, and thus its regulation was proper. Id. at 254-55. So too here, and as the Third Department explained (R. 379-380), DMV’s regulations explain how the agency generally intends to exercise its statutory discretion with regard to three or four-time recidivists, and thus ensure equal treatment of similarly situated applicants. And here, DMV has not even promulgated a rigid rule, but rather has expressly reserved its authority to depart from its general position on the basis of special circumstances. 15 N.Y.C.R.R. § 136.5(d). If anything, the Legislature has restricted DMV’s discretionary authority over relicensing only to the extent of depriving it of the authority to grant new licenses under certain circumstances. For 34 instance, the VTL forbids DMV from ever issuing a new license to an applicant whose drunk driving has twice resulted in physical injury. See VTL § 1193(2)(c)(3). But there is no circumstance in which the Legislature has commanded DMV to grant a new license to an applicant whose prior license was revoked for drunk driving. Acevedo nonetheless argues that the successive five-year waiting and restricted-license periods conflict with the VTL in two ways. And he argues that the five-year restricted-license period creates yet a third conflict with the VTL. He is mistaken. B. The regulatory waiting and restricted-license periods do not conflict with the permanent revocation scheme. Contrary to Acevedo’s argument (Br. 20), the permanent revocation scheme in VTL § 1193(2)(b)(12) does not curb the Commissioner’s discretion to impose successive five-year waiting and restricted-license periods on a relicensing applicant. For purposes of his argument, Acevedo focuses on VTL § 1193(2)(b)(12)(a) and (12)(b), which address limited circumstances warranting what the statute labels as the “permanent revocation” of a license in the sense that it renders an individual ineligible for relicensing at any time. Under 35 (12)(a), drivers who accrue at least three drunk-driving convictions within four years or at least four such convictions within eight years are permanently revoked. Under (12)(b), the permanent revocation required by subparagraph (a) “shall be waived by the Commissioner after a period of five years has expired” where certain conditions are met. And even then, the Commissioner may nonetheless refuse to restore a license “in the interest of public safety and welfare.” Id. Acevedo insists (Br. 21) that these provisions reflect a legislative determination that an offender who is permanently revoked is “entitled to relicensure” after five years. And from this premise, he argues (Br. 5, 21) that, while he is not covered by these permanent-revocation provisions, the Legislature necessarily did not intend to permit DMV to require individuals like him with better driving records than those covered by the permanent-revocation provisions to face what amount to longer periods of revocation consisting of the one-year minimum period plus the regulatory five-year waiting and restricted-license periods at issue here. His argument is fundamentally misguided for two reasons. First, even assuming that sections (12)(a) and (12)(b) limit DMV’s discretionary relicensing authority to some degree, that would not aid 36 Acevedo. These provisions do not represent a “detailed and comprehensive recidivist DWI offender statute,” as Acevedo claims (Br. 17). Like the parallel permanent-revocation provisions in VTL §§ 1193(2)(b)(12)(d) and (e), they only address a narrow group of recidivists, a group that does not include Acevedo. And it is implausible to think that the Legislature would use a permanent-revocation scheme addressed to such a narrow group of recidivists to curb DMV’s relicensing discretion under VTL § 1193(2)(c)(1) as to all other recidivists, including Acevedo. If the Legislature had intended to impose a more far-reaching limitation, it would have so indicated. Second, and in any event, the permanent-revocation provisions of VTL §§ 1193(2)(b)(12)(a) and (b) do not limit DMV’s discretionary relicensing authority even as to the narrow group of recidivists that they cover, let alone entitle such recidivists to relicensure after five years. They expressly authorize DMV to deny relicensure in the interest of public safety and welfare. In arguing otherwise (Br. 21), Acevedo confuses DMV’s authority to waive an otherwise-applicable permanent revocation with its authority to grant a relicensing application. A waiver only lifts the 37 statutory revocation so as to permit DMV to consider the offender’s relicensing application. Although Acevedo appears to equate the two terms, courts must “give effect and meaning to the entire statute and every part and word thereof.” Friedman v. Conn. Gen. Life Ins. Co., 9 N.Y.3d 105, 115 (2007) (quotation and alterations omitted). While VTL §1193(2)(b)(12)(b) states the permanent revocation required by subparagraph (a) “shall be waived” by DMV after a period of five years provided that certain conditions are met, it then goes on to say: 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. Giving meaning to each word in these permanent-revocation provisions, DMV may only “restore” an applicant’s driving privilege after it “waives” ineligibility. In light of this distinction, additional delays before the restoration of unconditional driving privileges do not, as Acevedo insists (Br. 27), render the waiver provision of VTL § 1193(2)(b)(12)(b) meaningless. And as to the restoration of a license, as noted above, this decision is committed to DMV’s discretion. Under the plain language of VTL § 1193(2)(c)(1), DMV’s discretion over relicensing extends to all 38 revocations under VTL § 1193(2)(b)—even permanent revocations under subparagraph (2)(b)(12)(a) where the driver has met the conditions necessary for a waiver of the permanent revocation. Acevedo also contends (Br. 22-23) that DMV’s general discretionary authority to decide relicensing applications was silently superseded by the subsequently enacted permanent-revocation provisions. But an earlier enactment is not impliedly modified by a later one if “by any fair construction, a reasonable field of operation can be found for both statutes[.]” Consol. Edison Co. of N.Y., Inc. v. Dep’t of Envtl. Conservation, 71 N.Y.2d 186, 195 (1988). Fairly interpreted, VTL §§ 1193(2)(b)(12)(a) and (b) leave intact the general discretionary authority DMV enjoys to decide an application for relicensing under VTL § 1193(2)(c)(1), regardless of whether DMV must waive a permanent revocation. This Court should decline Acevedo’s invitation to adopt an interpretation of the permanent revocation provisions that would create an unnecessary conflict with VTL § 1193(2)(c)(1). Even if waiver were synonymous with license restoration, waiver of a permanent revocation is not obligatory where DMV concludes that it would be contrary to public safety. Rather, consistent with 39 VTL § 1193(2)(c)(1)’s broad grant of relicensing discretion, VTL § 1193(2)(b)(12)(b) affirms that DMV “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.” DMV would thus be entitled to deny waiver and relicensing to a permanently revoked applicant who has otherwise satisfied the statutory conditions for waiver based on its judgment that restoring the applicant’s license would not serve the interest of public safety and welfare. Reading the permanent-revocation provisions in this way would not, as Acevedo argues (Br. 30), allow the public safety “exception” to swallow the rule and ignore the provision empowering DMV to deny relicensing on a case-by case basis. Empowering DMV to deny applications on a case-by-case basis does not mean that DMV must generally approve such applications. DMV may deny as many applications as it finds necessary, so long as rational public-safety judgments justify each denial. And using a regulation adopting a presumptive rule, but allowing exceptions in individual cases, is compatible with case-by-case consideration. 40 In short, Acevedo’s attempt to conjure up a five-year maximum period of revocation after which DMV is obligated to restore an applicant’s license fails, and he has not shown a conflict between the five-year waiting and restricted-license periods on one hand and the permanent revocation provisions on the other. C. The 25-year regulatory look-back period does not conflict with any statutory look-back period. The difference between revocation and relicensing also dooms Acevedo’s argument (Br. 49-50) that the 25-year regulatory look-back period in 15 N.Y.C.R.R. § 136.5(a)(3) cannot be reconciled with shorter look-back periods in the VTL and the Penal Law. The regulatory look- back period guides the application of DMV’s relicensing rules, which only become relevant once any statutory period of revocation has expired. See 15 N.Y.C.R.R. § 136.5(b)(3). The statutory look-back periods that Acevedo cites (Br. 49-50) serve different purposes: they are either used to calculate the minimum waiting period before an individual becomes eligible for relicensing or to define the elements of criminal drunk-driving offenses. As the Fourth Department aptly stated in rejecting the precise argument that Acevedo makes here, “the look- back periods in the Vehicle and Traffic Law to which petitioner refers 41 do not control here, inasmuch as they are inapplicable, set only minimum revocation periods, or concern the enhancement of criminal charges and punishments.” Matter of Shearer, 2015 WL 25589 at *1. Nor is the Legislature’s use of shorter, more conservative look- back periods to define the elements of criminal offenses at all surprising given the gravity of the consequences of a criminal conviction. Accordingly, Acevedo has not demonstrated that the 25-year look-back period used by the five-year waiting and restricted-license periods violates any statutory look-back periods. D. The restricted-license provision is likewise consistent with DMV’s authority under the Vehicle and Traffic Law. DMV did not exceed its authority in promulgating regulations presumptively requiring, for a five-year period, the issuance of restricted licenses, including licenses conditioned on the installation of an ignition interlock device. As described above, after the five-year waiting period in 15 N.Y.C.R.R. § 136.5(b)(3) expires, an applicant with three or four drunk-driving convictions within the 25-year look-back period, and who is currently revoked based on such a conviction, becomes eligible for a new license with an A2 restriction conditioned on 42 the installation of an ignition interlock device that is good for five years. Acevedo lacks standing to challenge these aspects of 15 N.Y.C.R.R. § 136.5(b)(3) because he was not yet eligible for a restricted license under this provision at the time of Supreme Court’s decision. But even if he had standing to challenge this restricted-license provision, his claim that DMV exceeded its authority in imposing these requirements for an additional five-year period is without merit. DMV’s authority to impose an A2 license restriction conditioned on the use of an ignition interlock device derives from two sources: DMV’s general authority to enact regulations in furtherance of its statutory mission to ensure the safety of the roads, see VTL § 215(a), and DMV’s specific authority to limit the operation of a motor vehicle by enacting regulations placing “additional restrictions” on the issuance of licenses based on “other factors deemed appropriate by the commissioner,” see VTL § 501(2)(c). Exercising these powers, DMV promulgated 15 N.Y.C.R.R. § 3.2(c)(4), which defines an “A2-problem driver restriction” as restricting the operation of a motor vehicle to the purposes set forth in 15 N.Y.C.R.R. § 135.9(b)—i.e., commuting to work, medical 43 appointments, etc.—and subject to any further conditions that DMV may choose to impose under 15 N.Y.C.R.R. § 136.4(b), which include requiring the operator to install an ignition interlock device. DMV then incorporated the A2 restriction and the condition that the driver install an ignition interlock device into 15 N.Y.C.R.R. § 136.5(b)(3), allowing applicants a new but restricted license for a five-year period once their initial five-year waiting period expires. Imposed as regulatory conditions on the grant of a new license for reasons of public safety, these requirements do not exceed DMV’s statutory authority. See Matter of Dahlgren, 124 A.D.3d at 1400 (upholding DMV’s ignition interlock device requirement as consistent with its “responsibility to provide meaningful safeguards for the general public who are users of the highways”). Acevedo challenges DMV’s authority both to issue an A2 restricted license as well as to impose an ignition interlock device requirement (Br. 40-42), but his arguments are unpersuasive. He makes four arguments against the ignition interlock device requirement. First, he claims (Br. 40) that it exceeded DMV’s authority because it was not expressly authorized by the Legislature. This argument ignores both 44 DMV’s general power to enact regulations to assist with its statutory mandate as well as its specific authority under VTL § 501(2)(c) to provide by regulation for such “additional restrictions” on the issuance of licenses as it deems appropriate. Second, he erroneously argues (Br. 41) that People v. Letterlough, 87 N.Y.2d 259, 268 (1995), bars DMV from relying on VTL § 501(2)(c)’s “catch-all” authority to adopt “additional restrictions” as authority to enact a regulation requiring the use of an ignition interlock device. That case did not concern DMV’s regulatory powers to promote public safety. Rather, this Court there addressed limits on the powers of courts to fashion terms of probation for punitive purposes. Specifically, the Court in Letterlough held that the “catch-all” provision in the Penal Law authorizing courts to fashion conditions of probation—Penal Law § 65.10(1)—did not allow a court to require a person convicted of driving while intoxicated to affix to his license plate a fluorescent sign stating “CONVICTED DWI.” 86 N.Y.2d at 261. The Court held that such a condition was punitive in nature, conflicted with the rehabilitative goals of probation, and thus could not be imposed absent legislative authorization. 45 In reaching that conclusion, the Letterlough Court noted that, until the Legislature specifically authorized sentencing courts to require the use of an ignition interlock device as a condition of probation where necessary “to ensure the public safety,” VTL § 1198(3)(d), the catch-all provision of Penal Law § 65.10 would not have authorized the imposition of such a condition either. Id. at 268-69. But that was because the role of sentencing courts more generally is to impose punishments or promote rehabilitation; their role is not to promote public safety more generally. Id. at 269. The same is not true of DMV, whose very mission is to promote public safety on the roads. VTL § 210. There is therefore no reason to think that DMV similarly required legislative authorization before it could impose a similar condition. Third, and for similar reasons, the requirements that the Legislature has imposed on sentencing courts before they may require an ignition interlock device as a condition of probation, see Penal Law § 65.10(2)(k-1); VTL § 1198, are irrelevant here. But even if those requirements restricted DMV’s regulatory authority, they would not help Acevedo, because he satisfies them. The subject requirements 46 permit an ignition interlock device to be imposed upon a person who has been convicted of driving while intoxicated under VTL § 1192(3), the very offense that led to Acevedo’s current revocation. Fourth, the requirement that an individual install an ignition interlock device does not constitute an improper fine for the reasons stated in Allen v. N.Y.S. Dep’t of Motor Vehicles, 45 Misc. 3d 475, 492-93 (Sup. Ct., Albany Co. 2014), aff’d on other grounds, 133 A.D.3d 1167 (2015). (Br. 42.) Among those reasons are that the statute does not mention the cost of an ignition interlock device, nor does it attempt to impose a fine, fee or cost assessment. 45 Misc. 3d at 492-93. Acevedo’s three arguments (Br. 47-48) against the validity of DMV’s A2 license restriction fare no better. First, in arguing that the Legislature’s creation of multiple classes of license and types of license restrictions precludes DMV from devising new ones, he again ignores that VTL § 501(2)(c) expressly allows DMV to do so. Indeed, DMV has exercised this authority to promulgate numerous types of license restrictions. See 15 N.Y.C.R.R. § 3.2(c)(3) (listing restrictions that, for example, limit driving to employment-related purposes, daytime hours, certain maximum speeds). Second, contrary to Acevedo’s argument, 47 People v. Prescott, 95 N.Y.2d 655, 661-62 (2001), did not concern DMV’s relicensing authority; that case dealt with whether a prosecutor could charge a person with the crime of “attempted” driving while intoxicated, which was not provided for in the VTL. Third, Acevedo’s contention that DMV lacks authority to issue “restricted use” licenses to applicants revoked for drunk driving is based on the false premise that DMV’s “restricted use” authority derives entirely from VTL § 530, which permits DMV to issue “restricted use” licenses to drivers whose licenses have been suspended or revoked for reasons other than drunk driving. As stated above, however, VTL § 501(2)(c) authorizes such restrictions as DMV considers appropriate, which include restricting the use of a vehicle where the applicant’s license was revoked for drunk driving. In sum, if this Court addresses the validity of the restricted-relicense provision, it should uphold it. POINT III DMV’S ADOPTION OF THE REGULATORY WAITING AND RESTRICTED-LICENSE PERIODS COMPLIES WITH THE SEPARATION-OF-POWERS DOCTRINE The Legislature delegated to DMV discretionary authority to grant or deny applications for relicensing after revocation, and DMV 48 lawfully acted within that authority in promulgating regulatory provisions imposing five-year waiting and restricted-license periods. These provisions inform the public about how DMV will generally exercise its statutory discretion with regard to the recidivists they cover, thereby clarifying the circumstances in which DMV will presumptively consider applicants too dangerous to relicense immediately upon the expiration of their minimum statutory waiting period. Although Acevedo contends otherwise, DMV did not abdicate its statutory responsibility in promulgating these regulatory time periods; it simply adopted a presumptively applicable standard to ensure consistent decision-making. New York’s Constitution confers legislative power solely on the Senate and Assembly. N.Y. Const. art. III § 1. Under the separation-of- powers doctrine, the Legislature must make the “critical policy decisions, while the executive branch’s responsibility is to implement those policies.” Bourquin v. Cuomo, 85 N.Y.2d 781, 788 (1995). An agency thus offends the doctrine if it crosses the “difficult-to-define line between administrative rule-making and legislative policy-making.” Boreali v. Axelrod, 72 N.Y.2d 1, 10 (1987). 49 A. DMV stayed within its regulatory role. This Court has described four coalescing circumstances establishing that an agency has crossed the line into legislative policymaking, namely that the agency has: (1) resolved a problem by making its own “value judgments entailing difficult and complex choices between broad policy goals,” rather than simply balancing costs and benefits under existing standards; (2) written on a “clean slate,” rather than filling in the details of a broad policy set by the Legislature; (3) taken upon itself to regulate matters on which the Legislature has tried unsuccessfully to set policy; and (4) acted outside its area of expertise to develop the challenged regulation. NYC C.L.A.S.H. v. Office of Parks, Recreation & Historic Preservation, 27 N.Y.3d 174, 178-80 (2016) (describing Boreali). These circumstances are not factors that courts apply rigidly or weigh equally, however. Id. Rather, they are treated as overlapping, closely related considerations that, taken together, will support a conclusion that an agency has crossed the line. Id. Here, all four considerations favor the conclusion that the five-year waiting and restricted-license periods represent permissible, interstitial rule- making. 50 1. The regulatory waiting and restricted-license periods further DMV’s legislative mission. First, in adopting the five-year waiting and restricted-license periods, DMV stayed within its statutory mandate to perform the particular task assigned: to decide post-revocation applications for relicensing. See VTL § 1193(2)(c)(1). Weighing the public’s interest in being protected from repeat drunk drivers with the individual’s interest in relicensing, DMV has determined that three or four-time recidivists will typically be too dangerous to receive unrestricted licenses immediately upon the expiration of whatever statutory waiting period applies to them. Unlike the smoking ban this Court struck down in Boreali—which applied broadly and carved out exceptions based on economic and social concerns outside the agency’s statutory mandate, see 71 N.Y.2d at 12—the five-year waiting and restricted-license periods hew tightly to DMV’s mission. In devising standards to perform a function the Legislature directed it to perform, DMV is not acting on its own unanchored notions of “sound public policy.” Id. at 11. As to DMV’s decision to formalize its judgments in duly promulgated regulations, the Legislature has authorized DMV to pass regulations relating to the issuance of driver’s licenses. See VTL § 508. 51 Given the connection between the regulations at issue here and DMV’s statutorily mandated function, the Legislature did not have to specify what weight to give an individual’s history of drunk driving in deciding an application for relicensing. “As long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency’s role.” Greater N.Y. Taxi Ass’n v. New York City Taxi and Limousine Commission, 25 N.Y.3d 600, 609 (2015). Here, the Legislature made the policy choice to revoke licenses upon most drunk- driving convictions, to establish a post-revocation relicensing process, and to delegate to DMV discretion to decide when and under what circumstances to grant relicensing applications. Because uniform standards facilitate consistent decision-making, the authority to set such standards by regulation is “required by necessary implication.” See Consol. Edison, 71 N.Y.2d at 194 (recognizing that Legislature’s goal of preventing oil spills could not be accomplished without the power to regulate petroleum pollution). Indeed, DMV has been using its regulatory authority to set standards for post-revocation relicensing for 36 years. Since it was first enacted in 1980, Part 136 has put the public on notice that an 52 applicant’s history of drunk driving will be considered in the relicensing process. See 15 N.Y.C.R.R. former §§ 136.4, 136.6.15 And the Legislature has taken no action to change DMV’s long-standing practice, a fact that provides persuasive evidence that the Legislature approves of DMV’s exercise of regulatory authority within the sphere of relicensing. See Med. Soc’y 100 N.Y.3d at 866; see also Greater N.Y. Taxi Ass’n, 25 N.Y.3d at 611 (agency was not writing on a clean slate where it has always regulated the industry “as to almost every detail of operation”). There is no merit to Acevedo’s assertion (Br. 13) that DMV engaged in the kind of policymaking that was rejected in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep’t of Health and Mental Hygiene, 23 N.Y.3d 681 (2014). In Hispanic Chambers of Commerce, this Court determined that New York City’s public-health agency usurped legislative power when it barred some businesses from selling soda in containers exceeding a certain size. The Court noted that the city agency weighed interests 15 Part 136 also complements DMV’s long-standing regulation of the licensing process in general. See, e.g., 15 N.Y.C.R.R. Part 3 (classifying driver’s licenses and establishing procedures to apply for them); id. Part 131 (creating the point system and providing for administrative action when a driver accumulates too many points). 53 outside its statutory prerogative to reach its own judgment on a complex, hotly contested matter of social policy. 23 N.Y.3d at 698-99. This Court’s decision in Hispanic Chambers of Commerce is not implicated here for three reasons. First, that decision does not, as Acevedo claims (Br. 13), preclude agencies from choosing among competing interests. The law is clear that where the Legislature has authorized an agency to regulate within a field, an agency may balance costs and benefits as they affect interests within that field. Greater N.Y. Taxi Ass’n, 25 N.Y.3d at 610-11. Second, this case does not implicate the concern expressed in Boreali and Hispanic Chambers of Commerce about an agency’s creation of regulatory exceptions based on factors outside its delegated sphere. See C.L.A.S.H., 27 N.Y.3d at 181 n.5. DMV has not ventured outside the realm of highway safety, a field that is well within its prerogative. And finally, this case does not affect personal autonomy as did the oversize soda ban at issue in Hispanic Chambers of Commerce. Although Acevedo invokes an autonomy interest in driving (Br. 13), the five-year waiting and restricted-license periods protect the public against drunk driving, which the Legislature has outlawed. To be sure, 54 recidivists have an interest in relicensing. But DMV is entitled to weigh that interest against the public’s interest in highway safety and the risk of harm to that interest from relicensing a recidivist drunk driver. As this Court recently said, “The exercise of an individual right is not limitless. [The Court] may measure its limits against the damages it does to our neighbors.” C.L.A.S.H., 27 N.Y.3d at 177. And the regulations at issue here apply only to those relicensing applicants whose multiple drunk-driving convictions demonstrate their persistent disregard for the safety of others. 2. DMV merely filled in the details of the Legislature’s policy regarding drunk driving. DMV did not write on a “clean slate” in promulgating the five-year waiting and restricted-license periods. Boreali, 71 N.Y.2d at 13. In contrast to the unresolved public-health concerns about secondhand smoke that Boreali confronted in 1987, the Legislature’s policy on drunk driving is well established. See C.L.A.S.H., 27 N.Y.3d at 182 (by 2016 “the legislature has spoken against second hand smoke”) (emphasis in original). This policy is unequivocal: drunk driving is dangerous, it needs to be prevented, and one way to prevent it is to keep 55 drunk drivers off the roads. See Pringle v. Wolfe, 88 N.Y.2d 426, 429-30 (1996). In particular, the Legislature has set forth its policy concerning drunk driving throughout article 31 of the VTL. Section 1192, for instance, criminalizes drunk driving. Section 1193 alerts drunk drivers that, aside from criminal consequences, they can expect the loss of their driving privileges through suspension or revocation. It further alerts drunk drivers that, if and when they become eligible to apply for a new license, their applications will be decided as a matter of DMV’s discretion. Using these principles, DMV had the power to “fill in the interstices in the legislative product by prescribing rules and regulations consistent” with the statutes. Med. Soc’y, 100 N.Y.2d at 865. Part 136 is a model of interstitial rulemaking. Where the statute is silent, DMV stepped in to inform the public how it intends to exercise its statutory discretion to assure consistent decision-making. To be sure, the Legislature has not instructed DMV on how it should decide applications for relicensing. But the Legislature did not need to supply “rigid marching orders.” Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398, 410 (1991). It is enough that the 56 Legislature imposed the requirement that, to obtain a new license, revoked offenders must apply to DMV, and gave DMV considerable discretion in acting on such applications. See VTL § 1193(2)(c)(1). In many ways, the regulatory provisions at issue here parallel the regulation the Court addressed in Rent Stabilization Ass’n of New York City v. Higgins, 83 N.Y.2d 156, 165 (1993), a regulation that enlarged the class of family members who could succeed to a rent-regulated apartment. Just as the Legislature first set the general policy of protecting renters from eviction, see id. at 165, the Legislature here set the policy that a revoked applicant must apply to DMV for a new license. And just as the agency in Rent Stabilization filled in the interstices of its mandate by determining which persons were most in need of the protections the Legislature saw fit to create, see id. at 170, DMV filled in the interstices to address how it would review and decide the applications the Legislature directed it to review and decide. Acevedo notes (Br. 38-40) that the VTL also embodies a competing policy interest in providing treatment for alcoholism and in returning 57 past offenders to the roads with restricted or conditional licenses.16 To the extent the VTL reflects a legislative policy favoring such treatment, that policy derives from the statute’s paramount concern with public safety: “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.” VTL § 520. And there is no legislative policy favoring restricted-license periods over extended waiting periods for recidivists whose prior revocations have proven inadequate to reform their conduct. Instead, decisions to impose waiting periods or restrict driving privileges after a revocation are generally entrusted to DMV’s discretion. See VTL § 501(2)(c). 3. The Legislature has not substantially debated the relicensing of recidivist drunk drivers. As to the third Boreali factor, the Legislature has not given “substantial public debate,” 71 N.Y.2d at 13, to relicensing recidivist drunk drivers after the expiration of statutory minimum waiting periods. 16 Acevedo does not attempt to reconcile his view that the Legislature favors restricted licenses allowing recidivists to safely return to the roads with his challenge to the validity of the restricted-license provision at issue here. 58 Acevedo identifies a laundry list of “tough on DWI” bills in support of his assertion that the Legislature has determined to set policy on post-revocation applications. (Br. 34-35.) Although Acevedo does not explain the content of the proposed bills on which he relies, in fact only three of them would have affected post-revocation relicensing. See S739, A1933/S6287, and A4346. Of those, two died in committee, and the third, S739, passed the Senate, but had no Assembly companion and promptly died upon its arrival there. This Court has repeatedly noted that there are many possible explanations for the failure of a bill, and it is dangerous to draw inferences from any such failures. See, e.g., Matter of Oswald N., 87 N.Y.2d 98, 103 n.1 (1995). Indeed, in Rent Stabilization, the Court said that the failure of twenty-seven bills relating to rent-succession rights was not enough to show that the Legislature intended to preclude an administrative agency from acting in the field. See 83 N.Y.2d at 170. The failure of three bills can fare no better. Accord C.L.A.S.H., 27 N.Y.3d at 183 (one legislative chamber’s passage of three bills on a subject matter did not establish that Legislature wished to preclude agency from regulating that matter). 59 Acevedo further contends (Br. 33-34) that the Legislature has passed laws relating to drunk driving in general on so many occasions as to signal its intent to address the issue entirely by legislation. But “the mere fact that the Legislature has enacted specific legislation in a particular field does not necessarily lead to the conclusion that broader agency regulation of the same field is foreclosed.” Consol. Edison, 71 N.Y.2d at 193. By leaving DMV’s broad discretion over relicensing applications intact while continuing to find other ways to strengthen laws against drunk driving, the Legislature has signaled its intent to defer to DMV’s expertise as to which applicants are qualified to receive new licenses. See Med. Soc’y, 100 N.Y.2d at 865-66. Striking the regulatory provisions at issue here would thwart that intent. 4. The regulatory waiting and restricted-license periods reflect DMV’s expertise. Finally, DMV acted squarely within its expertise in devising the five-year waiting and restricted-license periods. Boreali, 71 N.Y.2d at 114. These provisions, along with the rest of Part 136, rest on data highlighting the acute risk that repeat drunk drivers pose to the public. As previously noted, see supra at 12, over a 25-year period, some 17,500 drivers with three or more drunk-driving convictions have been 60 involved in crashes that caused death or injury. And those same drivers also caused 28% of all such crashes. The collection and evaluation of highway safety data fall well within DMV’s purview. See VTL § 216-a. So does the adoption of measures that will best address the problem of recidivist drunk driving documented by the data. See C.L.A.S.H., 27 N.Y.3d at 184-85 (agency based regulation on concerns about the enjoyment of public parks within the realm of its expertise). Acevedo’s sole argument under this factor is his conclusory assertion (Br. 52) that Part 136 is a “simple code” that does not implicate the agency’s expertise, making the regulations “indistinguishable” from those considered in Boreali. But Boreali does not rest on the simplicity of the regulations there. Instead, it observed that the agency promulgated a “simple code describing the locales in which smoking would be prohibited and providing exemptions for various special interest groups,” 71 N.Y.2d at 14, exemptions that were unrelated to the agency’s mission, id. And the proportionate scheme that DMV has promulgated is not as simple as Acevedo portrays. It categorizes recidivists according to their history of drunk driving and then treats each category according to the proportionate risks that DMV 61 generally judges individuals in each category to pose. See Rent Stabilization, 83 N.Y.2d at 170 (noting that in defining groups in need of noneviction protection, the Division of Housing acted within its competence). Thus, this factor favors DMV as well. B. DMV did not abdicate its discretion in enacting regulations to guide its discretion. Quoting at length the Appellate Division’s dissent (Br. 55-56), Acevedo asserts that amended Part 136 represents an abdication of DMV’s discretionary authority to decide relicensing applications. But the dissent misunderstood the role that DMV’s regulations play in its decision-making. DMV’s relicensing regulations guide its exercise of discretion; they do not displace it. When the Legislature entrusted DMV to decide relicensing applications, it did not prohibit DMV from developing rules to ensure consistent results. DMV’s adoption of rules in Part 136 enhances its ability “to deal impartially with litigants; promote stability in the law; allow for efficient use of the adjudicatory process; and to maintain the appearance of justice.” Matter of Charles A. Field Delivery Serv., Inc., 66 N.Y.2d 516, 519 (1985). Indeed, if an agency could not announce the principles it intended to apply when making discretionary decisions, it would be forced either to make 62 unprincipled decisions or to keep its principles secret. And as previously noted, DMV’s reliance on general rules to guide its relicensing decisions is not novel. Rather, DMV has set forth its general rules by regulation since Part 136 was first promulgated in 1980. Certainly, an agency that uses inflexible rules risks impermissibly acting on its “own ideas of sound public policy.” Matter of Swalbach v. State Liquor Auth., 7 N.Y.2d 518, 523-24 (1960). But the regulatory provisions at issue here are presumptive only, allowing applicants to request an exception for special circumstances. See 15 N.Y.C.R.R. § 136.5(d). For these reasons, the Appellate Division majority’s response to the dissent was correct, namely, that the regulation does not “replace” DMV’s discretion over relicensing, but itself represents a “discretionary determination” that three or four-time recidivists should normally be subject to an additional five-year waiting period after they become eligible to apply for a new license. (R. 379.) Such a rule not only reveals how DMV will exercise its discretion with regard to such offenders, but ensures “that such discretion is uniformly applied to all similarly situated persons.” (R. 379.) Accordingly, DMV did not surrender its 63 discretion over relicensing by adopting a general rule applicable to three or four-time recidivists while nonetheless allowing for individualized consideration. POINT IV DMV LAWFULLY CONSIDERED ACEVEDO’S DRUNK- DRIVING CONVICTIONS INCURRED BEFORE THE PROMULGATION OF THE RULES This Court should also reject Acevedo’s claim (Br. 57-58) that DMV improperly applied the 2012 amendments to Part 136 retroactively to him by considering his drunk-driving convictions, all of three of which predate the amendments. Acevedo’s arguments are misplaced. The Appellate Division was correct that DMV’s consideration of conduct that occurred before the promulgation of the 2012 amendments did not constitute a retroactive application of those amendments. This is so for two related reasons. First, the amendments did not take away Acevedo’s existing license on the basis of past conduct. They only affected how DMV would thereafter decide his application for a new license. In particular, they resulted in an initial denial of relicensing for a five-year waiting period, and then upon a new relicensing application, 64 the granting of a restricted license. A law is not retroactive “when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.” Matter of Forti v. State Ethics Comm’n, 75 N.Y.2d 596, 609 (1990). From Acevedo’s perspective at the time he applied for relicensing, receipt of a new driver’s license was necessarily a future transaction. The regulation was thus applied prospectively, even if it considered antecedent events. The five-year waiting and restricted-license periods were no more retroactive than was the ban this Court addressed in Matter of St. Clair Nation v. City of N.Y., 14 N.Y.3d 452 (2010). There, an engineer had engaged in improprieties in 2004 and 2005. Relying on a 2007 regulation (since repealed), the city banned the engineer from filing any papers with the building department going forward. The engineer argued that the 2007 regulation was retroactive because it was enacted after his 2004 and 2005 improprieties. Id. at 455. Rejecting that argument, the Court held that the regulation impacted only the engineer’s ability to “file papers with [the building department] for a future period of time” and therefore could be predicated on antecedent events. Id. at 457; see also Matter of Miller v. DeBuono, 90 N.Y.2d 783, 65 790 (1997) (upholding application to a nurse of regulation banning future employment on the basis of patient abuse, where the acts of abuse were committed before regulation’s promulgation). DMV’s consideration of Acevedo’s drunk-driving convictions that predate the promulgation of the rule is similarly lawful. Second, and relatedly, DMV’s application of the 2012 amendments was not retroactive because it did not impair any vested rights. A law is retroactive if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” I.N.S. v. St. Cyr, 533 U.S. 289, 321 (2001). To be sure, individuals have a vested right in a driver’s license insofar as the state may not take away a license based on past conduct without due process. Pringle, 88 N.Y.2d at 431 (upholding law providing for suspension of driver’s license pending prosecution of individual for certain drunk- driving offenses). But this right does not extend to the issuance of a new driver’s license to someone who, like Acevedo, does not presently possess one. For vested-right purposes, “there is a human difference between losing what one has and not getting what one wants.” 66 Greenholtz v. Inmates of Ne. Penal and Corr. Complex, 442 U.S. 1, 10 (1979) (quotation omitted). Accordingly, due process considerations do not restrict the conditions under which states may issue licenses in the first place. Bell v. Burson, 402 U.S. 535, 539 (1971) (“if the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment”). Likewise here, Acevedo has no vested right to acquiring a new license. To the extent Acevedo argues, as he did in the courts below, that DMV’s application of the 2012 amendments to him violated his rights under the Ex Post Facto Clause, the Appellate Division properly rejected that argument. DMV’s consideration of Acevedo’s pre-2012 drunk-driving convictions does not violate his rights under the Ex Post Facto Clause because the five-year waiting and restricted-license periods are not punitive, but rather serve a prospective regulatory purpose. See Matter of Kellogg v. Travis, 100 N.Y.2d 407, 410 (2003) (rejecting ex post facto challenge to statute requiring felons to submit samples to DNA database based on convictions that predated statute); 67 Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997) (same as to statute requiring sex offender registration on basis of convictions that predated statute). As this Court has said, the revocation of a driver’s license is not punitive in nature, but has as its aim the “chastening of the errant motorist, and, more importantly, the protection of the public from such a dangerous individual.” Matter of Barnes v. Tofany, 27 N.Y.2d 74, 78 (1970). If a revocation is not punitive, then neither is a waiting or restricted-license period. Thus, the application of the five-year waiting and restricted-license periods to Acevedo does not violate his rights under the Ex Post Facto Clause. Finally, Acevedo’s complaint about fairness is equally misplaced. He asserts that DMV’s pre-2012 regulations gave rise to the expectation that he would receive a new license if he re-offended, making it “fundamentally unfair” (Br. 58) to require him to wait additional periods before he could apply for an unrestricted license.17 But DMV has 17 Acevedo erroneously states (Br. 58) that he was “approved for relicensure” under the old regulations. Rather, he was deemed eligible to apply for relicensing, but this initial approval was shortly thereafter revoked, before he could either complete this process or receive a new license. (R. 193.) 68 always had discretion to deny an application for a new license, whatever its past practices may have been. And these practices were never meant to reassure recidivist drunk drivers about the consequences of their drunk driving. Having twice lost his license due to his impaired and intoxicated driving, Acevedo had no legitimate expectation that his driving privileges would be unconditionally restored a third time the minute he became eligible to apply for a new license. POINT V THE DEFINITION OF AN “ALCOHOL- OR DRUG-RELATED DRIVING CONVICTION OR INCIDENT” HAS A RATIONAL BASIS Finally, to the extent Acevedo challenges the rationality of the regulations, his challenge should be rejected. Acevedo complains (Br. 44-45) that the definition of an “alcohol- or drug-related driving conviction or incident” is under-inclusive, and thus arbitrary and capricious, because it omits youthful-offender adjudications from its scope. He further notes that the Appellate Division erred in finding that such adjudications are confidential, when in fact they are reported to DMV. 69 Contrary to Acevedo’s claim, DMV’s exclusion of youthful-offender adjudications is not arbitrary, but rather reasonably reflects the policy behind the youthful-offender adjudication: “a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals.” People v. Drayton, 39 N.Y.2d 580, 585 (1976). Consistent with this reasoning, DMV rationally determined that, despite the danger applicants may have posed as youthful offenders, their lapses of judgment can be ascribed to their immaturity at the time of the conduct at issue, and should not be held against them indefinitely. Indeed, DMV’s judgment in this regard is consistent with recent decisions of the U.S. Supreme Court recognizing for purposes of imposing criminal punishment that, compared to adults, children are less capable of exercising sound judgment yet more capable of reforming flawed character traits. See Miller v. Alabama, 132 S. Ct. 2455, 2465-66 (2012). Accordingly, Acevedo has not established that the definition of “alcohol-or drug- related driving conviction or incident” lacks a rational basis. 70 CONCLUSION This Court should affirm the Appellate Division’s order and judgment. Dated: June 29, 2016 Albany, New York Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents By:__________________________ JEFFREY W. LANG Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 776-2027 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General JEFFREY W. LANG JONATHAN D. HITSOUS Assistant Solicitors General of Counsel