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‘Persistently dangerous drivers’ fight regulations

‘Persistently dangerous drivers’ fight regulations

Motorists deemed “persistently dangerous drivers” by the state for racking up alcohol-related offens

Motorists deemed “persistently dangerous drivers” by the state for racking up alcohol-related offenses are challenging new regulations designed to keep them from regaining their driver’s licenses for years or even for life.

Dozens of lawsuits filed in state Supreme Court in Albany County against the Department of Motor Vehicles and DMV Commissioner Barbara Fiala allege the regulations enacted last year are unconstitutional because they conflict with existing vehicle and traffic law and were applied retroactively.

The motorists lost their driver’s licenses after pleading guilty to driving while intoxicated or driving while ability impaired by alcohol or drugs. After serving prescribed waiting periods and taking alcohol- or drug-related classes, they applied for new licenses but were turned down under the regulations as repeat offenders.

At a glance

Since tough new regulations for relicensing motorists with multiple alcohol- or drug-related driving convictions took effect last fall, the state Department of Motor Vehicles reviewed nearly 3,900 applications. Of those:

• Close to 1,700 repeat offenders were permanently denied a license because they had five or more alcohol- or drug-related driving convictions in their lifetimes or three or four convictions in the past 25 years that involved an additional serious driving offense such as a fatal crash.

• 1,500 drivers with three or four convictions in the past 25 years but no other serious driving offense saw five years tacked on to their revocations.

• Nearly 700 drivers were relicensed but received A-2 licenses restricting their driving to work and medical appointments and will need to install ignition interlocks on their vehicles.

Source: Governor’s office

The new regulations, which took effect on an emergency basis last September, became fully effective May 1. They were touted by Gov. Andrew Cuomo as a way to keep drivers with a history of alcohol- or drug-related driving convictions off the road.

“Those who have continually shown a complete lack of regard for the safety of other drivers have no place on New York’s roadways,” the governor said in a news release after the regulations became permanent.

In 2010, 28 percent of injury crashes statewide that involved alcohol had a driver at the wheel with three or more alcohol-related convictions, according the governor’s office. Before the new regulations, repeat offenders with revoked or suspended driver’s licenses could be back on the road with a conditional license in as little as seven weeks.

Cuomo’s move to implement the new regulations administratively — rather than through the state Legislature — was criticized in several of the lawsuits.

They contend that a campaign to keep repeat offenders off the road started in about 2011, sparked by “a series of high-publicity cases.” But when proposed legislation failed, “Gov. Cuomo directed respondent Fiala to enact harsh new administrative regulations that would render the need for legislative action moot.”

“Stated another way,” the lawsuits say, “when the Legislature could not agree on how to best address the issue of repeat DWI offenders — and/or could not agree as to whether the existing treatment of repeat DWI offenders was inadequate — the executive branch of government bypassed the Legislature and took matters into its own hands.”

The lawyer behind that contention, Eric Sills of Gerstenzang, O’Hern, Hickey, Sills & Gerstenzang in Albany, declined comment, “since the cases are still being litigated.” He estimated that he has filed three dozen complaints on behalf of drivers denied relicensing under the new regulations.

Many of the Sills complaints mirror one another: A motorist with a revoked driver’s license applied to the DMV last year for a new license but found the agency dragging its feet on approval.

Starting in February 2012, the complaints allege, the DMV stopped processing the applications of thousands of drivers who were repeat offenders but under existing law were eligible for relicensing.

“The purpose of the delay was to prevent repeat DWI offenders from being relicensed prior to the enactment of the harsh new regulations ordered by the governor — so that the … [new] regulations could subsequently be retroactively applied to their applications for relicensure,” the complaints contend.

Chatham attorney James Kleinbaum, who said he expects to file a dozen or more lawsuits, argues that just as laws cannot be applied retroactively, neither can regulations.

“The general rule of statutory construction prohibiting retroactive application is applicable to administrative regulations,” he contends in a lawsuit filed in June. “Unless there is clear indication in the enactment of the rule, new administrative rules must be applied prospectively.” He also argues that courts previously have held that applications “must be decided ‘in conformity with regulations in effect at the time of the filing’ ”— meaning that repeat offenders who applied for relicensing prior to the changes last September should have had their applications reviewed under the then-existing DWI rules.

“I’m not saying people with five or six DWIs should be out driving around,” Kleinbaum said in an interview Monday. But the regulations, which he called “somewhat draconian” and “arbitrarily implemented,” should have gone through the Legislature, he said.

State vehicle and traffic law calls for a six-month license revocation on a DWI conviction (12 months for a felony conviction) and 90 days for driving while ability impaired. Kleinbaum said the new regulations allow the DMV to reach back 25 years or more for other incidents that could lead to permanent license loss, versus the 10-year look-back period that had existed.

The lawsuits filed in Albany County are so-called Article 78 petitions — a request for judicial intervention when a government action is seen as arbitrary and capricious. They came after the plaintiffs exhausted their appeals with the DMV’s Administrative Appeals Board.

The board countered some of the contentions subsequently raised in the lawsuits in one appeal denial.

“A driver’s license has been held by the courts of New York state to be a privilege conferred upon a citizen who has met certain statutory requirements, and there is no right thereto,” the board said in a ruling included as an exhibit in a lawsuit filed by a Poughkeepsie law firm. “The commissioner’s regulations are authorized by law, reasonable, and bring about the purposes for which they were enacted.

“Even though the regulations were enacted after a motorist’s license was revoked and have the effect of extending the time within which one may apply for a license, they do not constitute a denial of due process, nor violate the ex-post facto [retroactive] doctrine.”

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