The following article is written by Patrick Scully, Attorney in our Albany office.
According to the New York Post, the Department of Motor Vehicles for the State of New York (hereinafter “DMV”) has prevented the reinstatement of 7,521 driver’s licenses belonging to those individuals with multiple prior alcohol- and/or drug-related driving convictions since the regulations governing the same were promulgated in the Autumn of 2012.
These regulations have upended the legal practices of those representing individuals who allegedly committed Driving While Intoxicated and other related offenses due to the continued revision of the regulations and the absence of judicial decisions interpreting them. The purpose of this article is to clarify the regulations and to identify a number of issues that will likely be encountered by practitioners.
The authority of the regulations is derived from the DMV’s statutory discretion under Vehicle and Traffic Law § 510 to reinstate a driver’s license after revocation. The government has interpreted the exercise of that discretion to mean the protection of the general public from drivers with multiple prior alcohol- and drug-related driving convictions who “present a potential danger to himself or other users of the highway if allowed to be licensed or relicensed.”
The principle instrument used by the DMV to accomplish this objective is a de facto extension of the statutory revocation period set forth in Vehicle and Traffic Law § 1193(2)(b) which was determined by the Legislature for each type of alcohol- and drug-related driving conviction or incident. In essence, the DMV has empowered itself to extend the applicable statutory revocation period by a definite number of years or indefinitely by choosing to deny an application for license reinstatement after revocation.
Revocations Resulting From an Alcohol- or Drug-Related Driving Conviction/Incident
The statutory revocation periods for an alcohol- or drug-related driving conviction or incident are generally only modified by the regulations when said conviction or incident results in a license revocation.
Therefore, provided there is no revocation from a refusal to submit to a chemical test or elsewise, the regulations are not triggered by a conviction of Vehicle and Traffic Law § 1192(1) (Driving While Ability Impaired by Alcohol) as such a conviction normally results in only a license suspension.
The regulation’s extension of the revocation period for refusing to submit to chemical testing or an alcohol- or drug-related driving conviction for persons with multiple prior convictions is divided into two principle categories: (1) permanent lifetime denial of license reinstatement and (2) denial of license reinstatement for at least five years after the completion of the statutory revocation period together with a second five year period – before unrestricted license reinstatement – during which time an “A2” license restriction is imposed and installation of an ignition interlock device is required.
The sorting between the two principle categories is determined by the number of prior “Alcohol- or Drug-Related Convictions or Incidents” and “Serious Driving Offenses” during the applicable look back period.
An “Alcohol-or Drug-Related Driving Conviction or Incident” is defined by 15 NYCRR 136.5(a)(1) as a conviction of any violation of Vehicle and Traffic Law § 1192 or an out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs; a finding by the DMV that an individual, under the age of twenty-one, operated a motor vehicle after consuming alcohol; a conviction of an offense under the Penal Law for which a violation of Vehicle and Traffic Law § 1192 is an essential element; or a finding by the DMV that an individual refused to submit to a chemical test.
Pursuant to 15 NYCRR § 136.5(a)(2), a “Serious Driving Offense” means a fatal accident; a driving-related Penal Law Conviction; conviction of two or more violations for which five or more points are assessed (i.e. high point violations like speeds, mobile phone, reckless driving, etc…); or 20 or more points from any violations.
A. Lifetime Denial of License Reinstatement
If a person has five or more alcohol- or drug-related driving convictions or incidents during their lifetime, then the DMV will indefinitely deny an application for license reinstatement.
If a person has three or four alcohol- or drug-related driving convictions or incidents and, in addition, has one or more serious driving offenses within the twenty-five years preceding the arrest, then the DMV will indefinitely deny an application for license reinstatement.
B. Additional Five Year Revocation After Completion of Statutory Revocation Period with Second Five Year Period After Reinstatement Requiring A2 License Restriction with Ignition Interlock Device
If a person has three or four alcohol- or drug-related convictions or incidents and no serious driving offenses within the twenty-five years preceding the arrest, then the DMV will deny an application for license reapplication for a period of at least five years after the completion of the statutory revocation period. Thereafter, the DMV will impose an “A2” license restriction and require the installation of an ignition interlock device for an additional five year period before the license can be reinstated without restriction.
Revocations Not Resulting From an Alcohol- or Drug-Related Driving Conviction/Incident
Although the regulations are often associated with being triggered by a revocation related to an alcohol- or drug-related driving arrest, a similar regulatory scheme is triggered by a revocation not resulting from an alcohol- or drug-related driving conviction/incident. 
Most importantly, the two separate scenarios resulting in a lifetime denial of license reinstatement (i.e. (1) five or more convictions/incidents during lifetime and (2) three or four convictions/incidents together with one or more serious driving offenses within the twenty-five year look back period) are also triggered by a revocation not involving alcohol or drugs.
If an individual has three or four alcohol- or drug-related driving convictions/incidents within the twenty-five year look back period, then a revocation not involving alcohol or drugs will trigger a two year denial of license reinstatement after completion of the statutory revocation period with an A2 restriction with no ignition interlock requirement for two years after reinstatement.
Furthermore, the regulations intentionally increased the class of individuals subject to it by creating a revocation for high-point violations which would otherwise not result in a license revocation. A “High-Point Driving Violation” is defined as “any violation for which five or more points are assessed on a violator’s driving record.”
A license revocation for a High-Point Driving Violation will only occur should the individual against whom such action is taken is a “Dangerous Repeat Alcohol or Drug Offender” which is defined by 15 NYCRR § 132.1(b) as either (1) “any driver, who within his or her lifetime, has five or more alcohol- or-drug-related diving convictions or incidents in any combination” or (2) “any driver who, during the 25 year look back period, has three or four alcohol- or drug-related driving convictions or incidents in any combination and, in addition, has one or more serious driving offenses during the 25 year look back period.” (Emphasis Added).
The application of the regulations to violations not historically resulting in a revocation is especially important as Vehicle and Traffic Law § 1212 (Reckless Driving) – which is a five point offense with normally no license revocation – is often used by practitioners to avoid the loss of a client’s Commercial Driver’s License (hereinafter “CDL”). Provided a client meets the definition of a Dangerous Repeat Alcohol or Drug Offender, an attorney seeking to protect a client’s CDL by resolving a Driving While Intoxicated charge with a plea to Vehicle and Traffic Law § 1212 (Reckless Driving) may inadvertently trigger a High-Point Driving Violation revocation thus triggering the regulations and an extended license revocation.
Practical Effect of the Regulations
While the extension of the license revocation period is typically the most discussed element of these regulations, the amendment of 15 NYCRR § 134.7(11) – which governs the eligibility for conditional driver’s licenses – to prevent individuals with three or more alcohol- or drug-related driving convictions/incidents within the past 25 years from obtaining a conditional license created the ultimate problem for most clients.
Without the amendment of 15 NYCRR § 134.7(11), an individual subject to the regulations would likely have been eligible for a conditional driver’s license during the extended revocation period. Thereby, the person subject to the new regulatory scheme would have been more likely to maintain employment by having the ability to drive to, from, and for work purposes provided that individual had no alcohol-related driving conviction within the proceeding five years.
By not being eligible for a conditional driver’s license, an individual who’s license is revoked by the regulations would be subject to the penalties of Vehicle and Traffic Law § 511(2)(a) (Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree), which include either mandatory probation or incarceration for a period of six months, each time that person operates a motor vehicle. Regardless of the moral and ethical arguments about obeying the law, it is a practical reality that individuals who may otherwise now be law abiding citizens will face possible incarceration when confronted by travel requirements necessary to maintain employment needed to support themselves and their dependents financially.
In addition, by extending the statutory revocation period to such extremes and not permitting a conditional driver’s license, the regulations have become a de facto amendment of Vehicle and Traffic Law § 1193(1)(c) (i.e. elevation of Driving While Intoxication from misdemeanor to felony based on prior conviction within preceding ten years) by permitting a felony charge of Vehicle and Traffic Law § 511(3)(a) (Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree) nearly whenever an individual subject to the regulations is alleged to have committed a subsequent charge of Driving While Intoxicated regardless of whether a predicate conviction exists within the past ten years.
Legal Challenges Against the Regulations
There has been a number of legal actions seeking have the regulations overturned in the context of Article 78 proceedings and declaratory judgment actions based on arguments of separation of powers, statutory conflict, retroactivity/Ex Post Facto Prohibition, etc…
No argument against the regulations has been accepted by either the Second, Third, or Fourth Appellate Divisions. See generally, McKevitt v. Fiala, 129 A.D.3d 730 (2nd Dept. 2015); Acevedo v. New York State Dept. of Motor Vehicles, 14 N.Y.S.3d 790 (3rd Dept. 2015); Kenny v. Fiala, 127 A.D.3d 1359 (3rd Dept. 2015); Scism v. Fiala, 122 A.D.3d 1197 (3rd Dept. 2014); Arrazola v. State Dept. of Motor Vehicles, 129 A.D.3d 1444 (4th Dept. 2015); Dahlgren v. New York State Dept. of Motor Vehicles, 124 A.D.3d 1400 (4th Dept. 2015); Klink v. Fiala, 129 A.D.3d 1685 (4th Dept. 2015); and Shearer v. Fiala, 124 A.D.3d 1291 (4th Dept. 2015) leave to appeal denied 25 N.Y.3d 909 (2015).
The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.
 “Nearly 4k Serial Drunk Drivers in NY Banned for Life” by Kirstan Conley and Carl Campanile, New York Post (June 8, 2015). <http://nypost.com/2015/06/08/new-york-revokes-licenses-of-nearly-4000-dwi-offenders/>
 15 NYCRR § 136.1(a).
 15 NYCRR §§ 136.1(a) and 136.5(a)(4).
 Vehicle and Traffic Law § 1193(2)(a)(1). A conviction of Vehicle and Traffic Law § 1192(1) (Driving While Ability Impaired by Alcohol) will result, by operation of law, in a revocation if there was a prior Vehicle and Traffic Law § 1192 conviction in the past five years, if the offense was charged as a misdemeanor and not a traffic infraction due two prior convictions of Vehicle and Traffic Law § 1192 in the past ten years, if the person convicted was under the age of twenty-one years old, etc… Vehicle and Traffic Law § 1193(2)(b).
 An “A2” license, also known as a “Problem Driver” license, is by definition a “Restricted Use” license and permits a holder thereof to drive to/from work among other activities. See generally, 15 NYCRR §§ 3.2(c)(4) and 135.9(b).
 15 NYCRR § 136.5(b)(1).
 15 NYCRR § 136.5(b)(2).
 15 NYCRR § 136.5(b)(3).
 15 NYCRR §§ 132.1 et al; 136.5(b)(1); and 136.5(b)(4).
 15 NYCRR §§ 136.5(b)(1) and 136.5(b)(2).
 15 NYCRR § 136.5(b)(4).
 15 NYCRR § 132.1 et al.
 15 NYCRR § 132.1(c).
 15 NYCRR § 132.2.
 It is important to remember for purposes of determining conditional driver’s license eligibility, the term “three or more alcohol- or drug-related driving convictions or incidents” should actually be interpreted as “two or more…,” because the term “incident” as it relates in this context includes the alcohol- or drug-related driving arrest in the instant matter from which suspension pending prosecution resulted. 15 NYCRR § 134.7(11)(ii).