Thomas Gaebel, Petitioner, For a Judgment Under Article 78 of the CPLR
New York State Department of Motor Vehicles, Respondent.
Jonna Spilbor Law By: Kristen A. Verrino, Esq. Attorneys for the Petitioner
NYS Office of the Attorney General Attorney for the Respondent By: Tracy Steeves, Esq. Assistant Attorney General
Mark M. Meddaugh, J.
The Petitioner has applied to this Court for a declaration that the provisions of 15 NYCRR §§134 through 136 are affected by an error of law, are arbitrary and capricious and an abuse of discretion. The regulations at issue allow the Department of Motor Vehicles to revoke a person's driver's license, permanently or for an extended period of time, due to a history of alcohol-related driving offenses. The Petitioner also seeks an order restoring the Petitioner's driving privileges, and such other and further relief as this Court finds just and proper.
The underlying facts in this proceeding are undisputed by the parties.
The Petitioner was arrested for Driving While Intoxicated (DWI) on August 19, 2011, and was convicted, upon a plea of guilty, on September 2, 2011 for a misdemeanor DWI.
The Petitioner asserts that, at the time of his plea, he was advised that his license would be revoked for six months as a result of the misdemeanor charge, but that, thereafter, he would be allowed to apply to have his license reinstated.
An Order of Suspension or Revocation was issued on September 6, 2011, which provided that pursuant to Section 1193-2 of the Vehicle and Traffic Law (VTL), the Petitioner's driver license/privilege was "revoked for at least six months", effective September 6, 2011.
The Petitioner indicates that, on April 17, 2012, he sought treatment with the Callicoon Counseling Center, where he was diagnosed and treated for alcohol abuse. The Petitioner asserts that he is disabled as the result of a back injury and his counselor taught him how to cope with his disability, instructed him on the proper use of pain medication for his chronic pain, and on the avoidance of alcohol. The Petitioner further indicates that, as a result of his treatment, he stopped drinking, and he was positively discharged from treatment on July 24, 2012.
The Petitioner had previously been arrested on October 27, 2008 for Driving While Ability Impaired (DWAI), and was convicted on November 18, 2008. The Petitioner had also been arrested on December 22, 1987 for DWI, and was convicted on February 26, 1988.
In February of 2012, the Petitioner applied to have his license restored upon the expiration of minimum statutory period of revocation, which was due to expire on March 6, 2012. The DMV held the Petitioner's application for restoration, pending the promulgation of Amendments to Part 136 of the New York Code of Rules and Regulations (NYCRR).
By letter dated November 5, 2012, the Respondent advised the Petitioner that his application was denied on the basis that he was "deemed a persistently dangerous driver, " citing 15 NYCRR §§136.5(a)(3) and 136.5(b)(3)(i). The DMV notified the Petitioner that he would be eligible to submit an application for a new driver's license five years after March 7, 2012.
The Petitioner appealed the DMV's determination on December 18, 2012 and, by decision dated January 29, 2013, his appeal was denied, based upon a lifetime review of the Petitioner's driving record, which included three alcohol or drug-related incidents or convictions, along with numerous other convictions for moving violations. The Respondent asserted that the Petitioner did not apply, pursuant to 15 NYCRR §136.5(d) for the Commissioner to review a denial of his application based upon a claim of "unusual, extenuating and compelling circumstances."
The Respondent, in its papers in opposition explained the procedure followed by the DMV in this case, and the recent history of the regulations upon which it relied to deny the Petitioner's application to be re-licensed. As set forth by the Respondent, when a person's driver's license is revoked, with minor exceptions, that person must make an application to the DMV's Driver Improvement Unit (DIU) for re-licensing, which reviews the application in accordance with the criteria set in Part 136 of the NYCRR.
The Respondent indicated that Part 136 was amended on February 23, 2011, "to strengthen the DMV's ability to deny re-licensing to problem drivers ." The amendment extended the "look back" time to review an applicant's lifetime driving record, to assess whether such applicant fits into the "problem driver" category and should be denied an application for re-licensing for at least a year, in addition to any statutorily imposed minimum revocation period. It does not appear, however, that the application of the February 2011 amendments are at issue in this proceeding, since the DMV denied the Petitioner's application to be re-licensed for five years, rather than one year.
The Respondent then asserted that, because the 2011 Amendments to Part 136 did not keep recidivist drug and alcohol impaired drivers off the roadways for any extended period of time, in early 2012 the DMV began to hold all applications for re-licensing, where the applicant had three or more alcohol or drug related offenses, pending the adoption of further amendments to Part 136.
On September 25, 2012, the DMV filed a "Notice of Emergency Adoption and Proposed Rulemaking" regarding 15 NYCRR Parts 3, 134 and 136, and all pending applications were then reviewed based on the criteria set forth in the amended Part 136.
Under the new Part 136, the DIU examines the applicant's lifetime driving records (15 NYCRR §136.5(b)) and, if the applicant has certain alcohol related convictions on his or her driving record, he or she will be subject to sanctions specified in such section, as follows:
Five or more alcohol related convictions or incidents, re-licensing is "permanentlydenied" (15 NYCRR §136.5(b)(1)), or
Three or four alcohol or related convictions within the past twenty-five years and also has a serious driving offense ("SDO") , he or she can be "permanently" denied a license (15 NYCRR §136.5(b)(2)), or
Three or four alcohol or related convictions within the past twenty-five years, without an SDO, the applicant shall remain in revoked status for a period of five years, in addition to the statutory minimum revocation period (15 NYCRR §136.5(b)(3)). After the five-year revocation, the applicant may be issued a Class D permit or license with a problem driver restriction.
Thereafter, on February 22, 2013, DMV published a new "Notice of Emergency Adoption and Proposed Rulemaking" relating to Parts 134 and 136, which clarified that the offense that triggered the revocation was included in determining whether the applicant had three or four offenses during the twenty-five year look back period (15 NYCRR §136.5(a)(3)).
A person whose license had been "permanently" revoked, can apply to DMV, after the expiration of five or eight years, for a waiver "in the interest of public safety and welfare" (see, VTL §§1193(2)(b)(12)(b)(ii) and 1193(2)(b)(12)(e)(iii), and 15 NYCRR §136.10 (b)).
The Respondent explained that, prior to the adoption of the amendments of Part 136, in 2012 and 2013, the Driver Improvement Unit (DIU) of the DMV would only review the applicant's driving record for the 10 years preceding the application and, if the applicant had three or more alcohol related incidents, an extended six month waiting period would be added for each ...