Lifetime Revocation

Lifetime Revocation

                 In the ongoing competition among the states to be “tough on DWI,” New York State upped the ante in 2012 when then Commissioner Fiala, at the behest of Governor Cuomo, adopted regulations which provided for lifetime revocation of driving licenses when an individual had either 5 DWI or other alcohol related convictions in a 25 year look back period or 3 or 4 DWI or other alcohol related convictions plus what the DMV calls a serious driving offense in that 25 year period. This regulation has, according to the DMV, led to the revocation or delay in issuance of more than 8,000 driver's licenses since the regulation took effect.

                While many undoubtedly applaud Governor Cuomo's action, these regulations, adopted by the DMV without any action by the New York State Legislature, have severely affected the lives of many individuals. Some of these people made mistakes long ago for which they thought they had paid the price. Most people agree that DWI offenders need to be punished and that it is fair to punish repeat offenders more harshly than those convicted of their first DWI offense. However, there are a few things about the 2012 regulations which are particularly unfair.

                First, the regulations are being applied retroactively. This means that someone who entered a plea to a DWI years earlier with the understanding that his license would be restored in a set period of time, is now being told that his license will never be restored. This result is not changed by moving to another state since if New York will not restore your license the new state will not issue you a new one. Second, this huge change in New York State's treatment of recidivist DWI offenders was made without any new law being passed. The Commissioner simply changed New York's policy by administrative fiat. We supposedly live in a democracy. It seems to me that a wholesale change in New York's treatment of repeat DWI offenders should be enacted by the elected Legislature, not the unelected bureaucrats running the DMV.

                A number of Article 78 actions have been filed challenging the new DMV regulations. Recently, the Appellate Division, Third Dept., upheld the regulations in a 3-2 decision. In that Decision, Acevedo v. New York State Dept. of Motor Vehicles, 2015 NY Slip Op 06467, a majority of the court concluded that the regulations did not violate either the separation of powers doctrine or the ex post facto clause of the U.S. Constitution. In short, the majority believed that the Commissioner had acted within her discretion in enacting these regulations and that they were not retroactive since an individual has no right to a driver's license. Judge Lynch, in his dissent, saw things differently. Judge Lynch would have struck down the regulations since he believed that the Commissioner had crossed the “hazy line between administrative rule-making and legislative policy-making.”

                To those of us who see the 2012 regulations as an unfair overreach and bad public policy, the Appellate Division's decision in Acevedo is disappointing. It now seems likely that the validity of these regulations will ultimately be decided by the Court of Appeals. As a lawyer who fights for the rights of people who are charged with DWI, I consider the DMV regulations to be unfair and unjust. It is hoped that, when the issue reaches the Court of Appeals, it will see things differently than the Third Department did and overturn these regulations. Meanwhile, it is more essential than ever that anyone facing a DWI or other traffic charge get their full lifetime driving abstract from the DMV and retain counsel with expertise in this area.  I am always happy to answer any questions you may have if you are faced with a DWI charge or have received a traffic summons.

                To update the foregoing, the New York State Court of Appeals has upheld the DMV regulations in a 5 to 0 decision. To those of us who view the regulations as unfair, this is most unfortunate. However, it is now settled that the new regulations are a valid exercise of discretion on the part of the Department of Motor Vehicles. In the event you find yourself prevented from getting a license as a result of the application of the regulations, there may be options. I am available to discuss what course of action you might take to avoid a permanent loss of driving privilege. However, it is no longer possible to attack the regulations head on in an Article 78 proceeding since the constitutionality of the regulations has been upheld.

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