DMV Drunken-Driving Rules Aren’t Lawmaking

     ALBANY, N.Y. (CN) – Tough new licensing standards in New York for repeat DWI offenders did not veer into lawmaking territory, a state appeals court found.
     The rules adopted by the state Department of Motor Vehicles in late 2012 “did not run afoul of the constitutional separation of powers doctrine,” a split panel of the Appellate Division’s Third Department in Albany ruled Thursday.
     The new standards sparked dozens of lawsuits against the department and then-Commissioner Barbara Fiala when drivers, whose licenses had been revoked for violating state vehicle and traffic law, tried to apply for new licenses.
     Under the regulations, drivers with three or four alcohol- or drug-related convictions on their licenses over 25 years faced a five-year hold on getting a new license, once their revocation penalty expired.
     They then received a restricted license for five years, and had to keep an ignition interlock device for five years on any vehicle they owned or operated.
     Drivers with five or more alcohol- or drug-related convictions faced permanent revocation of their license.
     Petitioner Kevin Acevedo lost his driver’s license for a year after his 2008 conviction for driving while intoxicated. He also was convicted of DWI in 2006, and of driving while impaired in 2003.
     He was on the verge of getting a new license in 2012 when the Department of Motor Vehicles put a hold on all applications while it reviewed state licensing rules, then adopted the tougher standards to deter recidivism.
     The department subsequently denied Acevedo’s application, and he sued in Albany County Supreme Court after losing an administrative appeal.
     A judge dismissed the lawsuit last year.
     On appeal, Acevedo argued that state vehicle and traffic law – written by lawmakers – preempted department action on alcohol- and drug-related convictions.
     But Presiding Justice Karen Peters, writing for the 3-2 majority, said the better gauge is what authority vehicle and traffic law gave to the department and its commissioner.
     “[T]he dispositive inquiry is whether the legislative branch of government intended, as evidenced by the scope and language of the enabling legislation, ‘to grant regulatory authority over a specific subject matter to an administrative agency which exists as part of the coequal executive branch,'” she noted, citing the landmark 1987 Court of Appeals decision, Boreali v. Axelrod, on the constitutional separation of powers.
     The Legislature, through vehicle and traffic law, “has vested the commissioner with broad authority to promulgate regulations,” and among those “is the commissioner’s authority to approve or deny relicensing applications,” Peters said.
     So while vehicle and traffic law sets minimum periods of revocation for alcohol- or drug-related driving convictions, “it also provides that revoked licenses may only be restored ‘in the discretion of the commissioner,'” she added. Under the law, the commissioner also can cite public safety or welfare concerns and refuse to issue a license.
     “Together these statutory provisions lead to the inexorable conclusion that the Legislature intended to grant DMV [Department of Motor Vehicle] regulatory authority over the relicensing of persons with multiple alcohol- and/or drug-related offenses,” Peters wrote.
     The panel also found that the department did not try to establish new public policy through the tougher standards but instead “implemented the Legislature’s policies of promoting highway safety and reducing instances of impaired and intoxicated driving.”
     “Inasmuch as the commissioner has the discretion to continue license revocations beyond the statutory minimum period and recidivist drivers pose a heightened risk to the safety of public roadways, we find that respondents promulgated [the new rules] in furtherance of legislatively defined policy and thus engaged in permissible, interstitial rulemaking,” the panel said.
     Justices John Lahtinen and William McCarthy concurred. McCarthy weighed in after the four justices who heard oral arguments split 2-2.
     In a dissent, Justices Michael Lynch and Elizabeth Garry agreed that the new rules jibe with “a strong legislative policy of promoting public safety by reducing alcohol-related driving incidents.”
     But they saw the commissioner taking on a policy-making role “by effectively yielding her statutory discretion to a regulation that prohibits and then restricts the reissuance of a license for a 10-year period.”
     “Establishing what is in effect a general bar to unrestricted relicensure for a 10-year period following a statutory revocation, the commissioner did not ‘merely fill in the details of broad legislation,'” Lynch wrote, invoking Boreali. “Rather, she abdicated her statutory mandate to exercise her discretion in favor of a hard and fast rule, waivable only under extremely limited circumstances.”
     Fiala, the commissioner, retired in December. She announced late last month that she would run for the Binghamton-area state Senate seat formerly held by Thomas Libous, who had to resign in July after being convicted of lying to the FBI.
     Libous also was deputy majority leader of the Senate.

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