This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 40
In the Matter of Kevin B.
Acevedo,
              Appellant,
         v.
New York State Department of
Motor Vehicles, et al.,
              Respondents.
----------------------------
No. 41
In the Matter of Michael W.
Carney,
              Appellant,
         v.
New York State Department of
Motor Vehicles, et al.,
              Respondents.
----------------------------
No. 42
In the Matter of Caralyn A.
Matsen,
              Appellant,
         v.
New York State Department of
Motor Vehicles, et al.,
              Respondent.
Case No. 40:
            Eric H. Sills, for appellant.
            Jeffrey W. Lang, for respondents.
Case No. 41:
          Eric H. Sills, for appellant.
          Jonathan D. Hitsous, for respondents.
Case No. 42:
          Eric H. Sills, for appellant.
          Jeffrey W. Lang, for respondents.
GARCIA, J.:
          Following their most recent drunk driving convictions
-- the third for petitioners Kevin B. Acevedo and Caralyn A.
Matsen, and the sixth for petitioner Michael W. Carney --
petitioners' driver's licenses were revoked pursuant to the


                              - 1 -
                               - 2 -                     Nos. 40-42

Vehicle and Traffic Law.   Petitioners' relicensing applications
were subsequently denied pursuant to recent amendments adopted by
respondent New York State Department of Motor Vehicles (DMV),
which govern the relicensing of recidivist drunk driving
offenders.1   Petitioners now challenge the validity of those
regulations and seek restoration of their driving privileges.
          For the reasons set forth below, we reject petitioners'
challenges and affirm.
                                I.
          "The carnage caused by drunk drivers is well
documented" and "occurs with tragic frequency on our Nation's
highways" (South Dakota v Neville, 459 US 553, 558 [1983]).
"Drunk drivers take a grisly toll on the Nation's roads, claiming
thousands of lives, injuring many more victims, and inflicting
billions of dollars in property damage each year" (Birchfield v
North Dakota, 579 US ___, ___, 136 S Ct 2160, 2166 [2016]).     In
New York alone, alcohol-related motor vehicle accidents are
responsible for more than 300 deaths -- nearly 30% of fatal
crashes -- and over 6,000 injuries each year (NY Reg, March 13,
2013, at 43).
          An alarming percentage of these tragedies involve


     1
       Unless otherwise noted, a "drunk driving offense" refers
to any "alcohol- or drug-related driving conviction or incident"
as defined in 15 NYCRR 136.5 (a) (1), and a "drunk driving
offender" refers to any individual whose driving record contains
one or more "alcohol- or drug-related driving conviction or
incident."

                               - 2 -
                                - 3 -                   Nos. 40-42

recidivist offenders.   In 2010, for instance, 28% of the alcohol-
related crashes resulting in injury involved a driver with three
or more drunk driving convictions (id.).   Approximately 17,500
drivers with three or more drunk driving convictions have been
involved in at least one crash resulting in death or injury, and
according to DMV, the number of accidents involving this group of
recidivists continues to increase (id.).   For nearly two decades,
the recidivism rate among drivers with drunk driving convictions
has remained above 20% (Institute for Traffic Safety Management
and Research [October 2016]).
                        Statutory Background
          To combat this persistent threat to public safety, the
Legislature has enacted a statutory scheme that criminalizes
drunk driving (VTL § 1192) and sets forth the sanctions --
including licensing implications -- associated with alcohol- and
drug-related violations (VTL § 1193).   Under the Vehicle and
Traffic Law, a conviction for a drunk driving offense generally
results in the automatic revocation of the offender's driver's
license, requiring the offender to reapply for a new license.
The most common type of revocation is followed by a "minimum"
time period -- usually 6-18 months -- during which the offender
is ineligible for a new license (VTL § 1193 [2] [b]).
          The VTL mandates "[p]ermanent revocation" for certain
recidivist offenders -- for instance, those who have three drunk-
driving convictions in four years, or four drunk driving


                                - 3 -
                                - 4 -                    Nos. 40-42

convictions in eight years (VTL § 1193 [2] [b] [12]).    Permanent
revocation renders an offender ineligible for relicensing, absent
a waiver.    Under the VTL, permanent revocation "shall be waived"
after a fixed period of time -- either five or eight years,
depending on the offender's conduct -- and upon satisfaction of
specified conditions, "[p]rovided, however, that the commissioner
[of the DMV] may, on a case by case basis, refuse to restore a
license which otherwise would be restored . . . in the interest
of the public safety and welfare" (VTL § 1193 [2] [b] [12] [b];
see also VTL § 1193 [2] [b] [12] [e]).
            As a general matter, once an offender's license has
been revoked -- permanently or otherwise -- reissuance of a new
license is subject to the discretion of the Commissioner of the
DMV (the Commissioner) (VTL § 510 [6] [a]; VTL § 1193 [2] [c]).
Specifically, "where a license is revoked" pursuant to VTL § 1193
(2) (b), "no new license shall be issued after the expiration of
the minimum period specified . . . except in the discretion of
the commissioner" (VTL § 1193 [2] [c] [emphasis added]).    The
Commissioner's discretion to reissue a new license -- following
the prescribed statutory revocation period -- is limited only if
specified; for instance, the Commissioner is barred from issuing
a new license to an offender who has two drunk driving
convictions resulting in physical injury to another person (VTL §
1193 [2] [c] [2]-[3]).




                                - 4 -
                                - 5 -                    Nos. 40-42

                          Regulatory Scheme
            The Vehicle and Traffic Law authorizes the Commissioner
to, "[s]ubject to and in conformity with the provisions of the
vehicle and traffic law . . . enact, amend and repeal rules and
regulations which shall regulate and control the exercise of the
powers of the [DMV] and the performance of the duties of
officers, agents and other employees thereof" (VTL § 215).      This
authority includes the power to "promulgate regulations" with
respect to the administration of licensing procedures (VTL § 508
[4]).
            The Commissioner first promulgated regulations to
address post-revocation relicensing in 1980.    Those regulations
specified that DMV would decline to issue a new license to an
applicant who had (i) a "history of abuse of alcohol or drugs
. . . with insufficient evidence of rehabilitation" (15 NYCRR
former 136.4 [a] [2]), or (ii) accumulated twenty-five or more
"negative safety points" -- corresponding to certain VTL
violations -- within the three years immediately preceding the
application (15 NYCRR former 136.4 [a] [3]; 15 NYCRR former 136.1
[b] [6]).
            DMV has amended the 1980 regulations a number of times
over the years -- including in 1982, 2006, and 2011.    In 2011,
for instance, the regulations were amended to provide that, in
considering relicensing applications, DMV would evaluate an
applicant's "entire driving history" for purposes of determining


                                - 5 -
                               - 6 -                      Nos. 40-42

whether the applicant was a "problem driver" who created "an
unusual and immediate risk upon the highways" (15 NYCRR former
136.1 [b] [1]).   If so, DMV would deny the application and
decline to consider a further application for one year following
the denial (15 NYCRR former 136.4 [b]).
          According to DMV, the 2011 amendments remained
inadequate to address the safety risk posed by recidivist drunk
drivers, and DMV's statistics indicated that a small number of
relicensed recidivist drunk drivers remained responsible for a
disproportionate number of accidents.   In early 2012, DMV "began
an extensive review of the processes and criteria used when
making relicensing decisions, particularly as they apply to
persons applying for relicensing after being revoked for an
alcohol- or drugged-driving related offense" (NY Reg, March 13,
2013, at 46).   In February 2012, "[i]n the interest of ensuring
that drivers with similar records would be treated uniformly,"
DMV began holding pending relicensing applications in abeyance if
the applicant's record "contained multiple alcohol-related
violations of the Vehicle and Traffic Law" (id.).
          The amendments at issue in these appeals (the
Regulations) were adopted as emergency regulations in September
2012 and took effect immediately.   In relevant part, the
Regulations provide that, "[u]pon receipt of a person's
application for relicensing, the Commissioner shall conduct a
lifetime review of such person's driving record" (15 NYCRR 136.5


                               - 6 -
                                - 7 -                     Nos. 40-42

[b]).    The Commissioner "shall deny the application" if "the
record review shows that": (1) the applicant has "five or more
alcohol- or drug-related driving convictions or incidents in any
combination within his or her lifetime," (15 NYCRR 136.5 [b] [1])
or (2) within a "25 year look back period," the applicant "has
three or four alcohol- or drug-related driving convictions or
incidents in any combination" and "one or more serious driving
offense" (15 NYCRR 136.5 [b] [2]).2     A "serious driving offense"
includes: (i) "a fatal accident"; (ii) "a driving-related Penal
Law conviction"; (iii) "conviction of two or more violations for
which five or more points are assessed" on the applicant's
driving record; or (iv) "20 or more points from any violations"
(15 NYCRR 136.5 [a] [2]).
            For applicants with "three or four alcohol- or drug-
related driving convictions or incidents in any combination
within the 25 year look back period but no serious driving
offenses within the 25 year look back period," the Regulations
provide that the Commissioner "shall deny the application for at
least five years" in addition to the minimum statutory revocation
period (15 NYCRR 136.5 [b] [3]).    Following the expiration of
this five-year waiting period, "the Commissioner may in his or
her discretion approve the application, provided that upon such


     2
       The "25 year look back period" encompasses "the period
commencing upon the date that is 25 years before the date of the
revocable offense and ending on and including the date of the
revocable offense" (15 NYCRR 136.5 [a] [3]).

                                - 7 -
                               - 8 -                      Nos. 40-42

approval, the Commissioner shall impose the A2 restriction on
such person's license for a period of five years and shall
require the installation of an ignition interlock device in any
motor vehicle owned or operated by such person for such five-year
period" (id.).   An A2 restricted license is limited to operation
to and from specified destinations -- for instance, "the holder's
place of employment or education" (see 15 NYCRR 135.9 [b]; 15
NYCRR 3.2 [c] [4]).
          The Commissioner is expressly permitted to "deviate
from the general policy" set forth in the Regulations "in the
exercise of discretionary authority granted" under the VTL (15
NYCRR 136.5 [d]).   Specifically, the Commissioner may approve a
relicensing application based on a showing of "unusual,
extenuating and compelling circumstances," in which case "the
applicant may be issued a license or permit with a problem driver
restriction . . . and may be required to install an ignition
interlock device" (id.).
                      Petitioners' Challenges
          Petitioners' driver's licenses were revoked pursuant to
VTL § 1193 (b), and their respective relicensing applications
were decided in accordance with the Regulations.
          Petitioner Kevin Acevedo was convicted of three drunk
driving offenses between 2003 and 2008.   Each time, his license
was revoked.   Acevedo's most recent conviction triggered a one-
year statutory revocation period, after which he applied for


                               - 8 -
                               - 9 -                     Nos. 40-42

relicensing for the third time, in October 2011.    In February
2012, Acevedo received a letter from DMV indicating that he had
been approved to apply for a driver's license, subject to passing
written and road tests.   Three days later, DMV withdrew its
approval and notified Acevedo that his application would be
subjected to additional review.   Eventually, in November 2012,
Acevedo's application was denied pursuant to the Regulations;
under 15 NYCRR 136.5 (b) (3), Acevedo's application would be
denied for at least five years following the expiration of his
statutory revocation period, and he would then become eligible to
apply for an A2 restricted license with the requirement that he
install an ignition interlock device.
          Petitioner Michael Carney has been convicted of six
drunk driving offenses.   Following his most recent conviction in
2011, Carney's driver's license was revoked for the third time
and he incurred a six-month statutory revocation period.    Carney
again applied for relicensing in June 2012.    His application was
held in abeyance pending the anticipated enactment of the
Regulations, and was ultimately denied pursuant to 15 NYCRR 136.5
(b) (1), as Carney had "five or more" drunk driving convictions
in his lifetime.
          Petitioner Caralyn Matsen accumulated three drunk
driving convictions between 2000 and 2010.    She also received
twelve points on her driving record based on two separate
speeding incidents in 2004.   In March 2012 -- following her 2010


                               - 9 -
                               - 10 -                   Nos. 40-42

drunk driving conviction and a one-year statutory revocation
period -- Matsen again applied for relicensing.   DMV initially
held her application in abeyance, and then in November 2012,
Matsen's application was denied pursuant to 15 NYCRR 136.5 (b)
(2).   Given her three drunk driving offenses and her two six-
point speeding violations -- which, together, constituted a
"serious driving offense" -- Matsen's driving record triggered a
presumptive lifetime denial.
           Petitioners appealed the denial of their respective
relicensing applications to the Administrative Appeals Board,
which affirmed DMV's denial of their applications.   Petitioners
then filed the instant suits, challenging the lawfulness of the
Regulations as well as the application of the Regulations to each
petitioner's relicensing application.   Supreme Court dismissed
each proceeding, and petitioners appealed.
           The Appellate Division affirmed each case in split
decisions (Matter of Acevedo v New York State Dept. of Motor
Vehs., 132 AD3d 112 [3d Dept 2015]; Matter of Carney v New York
State Dept. of Motor Vehs., 133 AD3d 1150 [3d Dept 2015]; Matter
of Matsen v New York State Dept. of Motor Vehs., 134 AD3d 1283
[3d Dept 2015]).   The Appellate Division panels determined that
DMV did not exceed its regulatory authority because "it did not
act on its own ideas of public policy, but rather implemented the
Legislature's policies of promoting highway safety" (Acevedo, 132
AD3d at 119), and because the Regulations represented "an


                               - 10 -
                              - 11 -                    Nos. 40-42

appropriate discretionary determination by the Commissioner"
(Carney, 133 AD3d at 1152-1153).   The court also held that the
Regulations do not conflict with the Vehicle and Traffic Law, and
that they were not impermissibly applied retroactively to
petitioners' applications.
          The dissenting Justices -- two in Acevedo and Carney,
and one in Matsen -- argued that the Commissioner "exceeded the
scope of her regulatory authority" by "abdicat[ing] her statutory
mandate to exercise her discretion" on a case-by-case basis "in
favor of a hard and fast rule, waivable only under extremely
limited circumstances" (Acevedo, 132 AD3d at 123, 125 [Lynch, J.,
dissenting]; see also Carney, 133 AD3d at 1155 [Lynch, J.,
dissenting]; Matsen, 134 AD3d at 1287 [Lynch, J., dissenting]).
          These appeals ensued, and we now affirm.
                                II.
          Initially, DMV contends that petitioners lack standing
to the extent that they challenge provisions of the Regulations
that are inapplicable to their respective relicensing
applications.   A court can act "only when the rights of the party
requesting relief are affected" (Society of Plastics Indus. v
City of Suffolk, 77 NY2d 761, 772 [1991]), and therefore a
controversy is not justiciable unless the party requesting relief
has "an interest sufficient to constitute standing to maintain
the action" (American Ins. Assn v Chu, 64 NY2d 379, 383 [1985]).
Each petitioner must therefore show the existence of an "injury


                              - 11 -
                               - 12 -                       Nos. 40-42

in fact" in order to demonstrate that he or she has "an actual
legal stake in the matter being adjudicated" (Society of Plastics
Indus., 77 NY2d at 772).    To constitute an injury in fact,
petitioners' claimed harm must be "direct and immediate" such
that it cannot be "prevented or significantly ameliorated by
. . . administrative action or by steps available to the
complaining party" (Church of St. Paul & St. Andrew v Barwick,
67 NY2d 510, 520 [1986]).
                                 A.
          Plainly, petitioners will not incur any harm -- let
alone any direct or immediate harm -- as a result of those
provisions of the Regulations that are not applicable to their
respective relicensing applications.    Accordingly, each
petitioner has standing only to challenge those aspects of the
Regulations that are triggered by his or her application.
          Collectively, however, petitioners have standing to
challenge the most salient provisions of the Regulations
implicated by these appeals: petitioner Carney has "five or more"
drunk driving offenses and is subject to a lifetime denial (15
NYCRR 136.5 [b] [1]); petitioner Matsen has "three or four" drunk
driving offenses, plus a "serious driving offense," within the 25
year look back period and is subject to a lifetime denial (15
NYCRR 136.5 [b] [2]); and petitioner Acevedo has "three or four"
drunk driving offenses, but no "serious driving offense," within
the 25 year look back period and is subject to a five-year


                               - 12 -
                             - 13 -                       Nos. 40-42

waiting period (15 NYCRR 136.5 [b] [3]).
                              B.
          With respect to petitioner Acevedo, DMV further
contends that his appeal is entirely nonjusticiable, even with
respect to 15 NYCRR 136.5 (b) (3).    Specifically, DMV argues that
Acevedo's five-year waiting period has now expired, and that the
restricted license provision --    which is generally triggered
following the five-year waiting period -- was inapplicable at the
time Acevedo brought his claim.    We agree with the Appellate
Division that Acevedo does not have standing to challenge the
restricted license provision of 15 NYCRR 136.5 (b) (3), but
reject DMV's contention that Acevedo's challenge to the waiting
period provision is moot.
          Accordingly, we review petitioner Carney's challenge to
15 NYCRR 136.5 (b) (1), petitioner Matsen's challenge to 15 NYCRR
136.5 (b) (2), and petitioner Acevedo's challenge to the five-
year waiting period provision of 15 NYCRR 136.5 (b) (3).
                              III.
          Turning to the merits, petitioners raise a number of
challenges to the Regulations, arguing that the Regulations (i)
conflict with statutory provisions of the Vehicle and Traffic
Law; (ii) violate the separation of powers doctrine; (iii) are
arbitrary and capricious; and (iv) were improperly applied
retroactively to petitioners' relicensing applications.




                             - 13 -
                              - 14 -                    Nos. 40-42

                        Statutory Conflict
          Petitioners argue that the Regulations conflict with
the Vehicle and Traffic Law, and because an agency may not adopt
regulations that are "inconsistent with [] statutory language"
(Matter of General Elec. Capital Corp. v New York State Div. of
Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]), the
Regulations cannot stand.   We disagree.
          Petitioners' statutory conflict argument relies on the
flawed premise that an offender is entitled to relicensing under
the VTL upon expiration of the statutory revocation period.
Rather, the VTL expressly provides that the statutory revocation
periods are "minimum" time periods during which an offender's
driver's license must remain "revoked" (VTL § 1193 [2] [b]).
With respect to the "[r]eissuance of licenses," the VTL provides
that, following "the expiration of the minimum [revocation]
period," relicensing applications are to be decided solely "in
the discretion of the commissioner" (id. § 1193 [2] [c]).   By
design, then, the statutory scheme contemplates that the
Commissioner will have exclusive authority over post-revocation
relicensing, and that those relicensing determinations will be
discretionary.
          We similarly reject petitioners' contention that VTL §
1193 (2) (b) (12) (b) mandates relicensing where an offender
otherwise qualifies for a waiver of permanent revocation under
that provision.   While VTL § 1193 (2) (b) (12) (b) provides that


                              - 14 -
                                - 15 -                      Nos. 40-42

permanent revocation "shall be waived" under specified
circumstances, that statutory mandate remains subject to the
discretion of the Commissioner, who "may, on a case by case
basis, refuse to restore a license which otherwise would be
restored . . . in the interest of the public safety and welfare"
(VTL § 1193 [2] [b] [12] [b]).    Moreover, petitioners' reading of
VTL § 1193 (2) (b) (12) (b) would accord the Commissioner
latitude to exercise direction in the vast majority of
relicensing determinations, while mandating relicensing --
eliminating the Commissioner's discretion -- for the most
dangerous subset of drunk driving offenders, i.e. those subject
to statutory permanent revocation.       We decline to interpret the
VTL in such an implausible manner.       Rather, we read VTL § 1193
(2) (b) (12) (b) to provide that the Commissioner may, in her
discretion, consider a relicensing application from an offender
who is otherwise qualified for a waiver, notwithstanding that
offender's permanent revocation.
          Petitioners also argue that the Commissioner has
contravened her statutory mandate to exercise discretion on a
case by case basis by adopting hard and fast rules that are
waivable only under limited circumstances.       But contrary to
petitioners' claim, the Commissioner does not abdicate her
discretion by formalizing it.    By promulgating rules to govern
relicensing, the Commissioner ensures that her discretion is
exercised consistently and uniformly, such that similarly-


                                - 15 -
                               - 16 -                      Nos. 40-42

situated applicants are treated equally.   The Regulations also
provide notice to the public concerning the Commissioner's
general practices with regard to relicensing.   And in any case
where the presumptive provisions of the Regulations are, in the
Commissioner's discretion, inappropriate in light of "unusual,
extenuating and compelling circumstances," the Commissioner may,
pursuant to the Regulations, "deviate from the general policy"
(15 NYCRR 136.5 [d]).
          Nor do the look back periods contained in the
Regulations conflict with any shorter look back period prescribed
by statute.   For instance, VTL § 1193 (2) (b) uses specified look
back periods -- generally 10 or fewer years -- in order to set
minimum revocation periods during which the Commissioner is not
authorized to grant an offender's relicensing application.     Once
that statutory revocation period has expired, the Commissioner is
authorized to determine whether relicensing is warranted in her
discretion.   The Commissioner's use of a longer look back period
for purposes of evaluating relicensing applications falls
squarely within her broad relicensing authority (VTL § 1193 [2]
[c]), and creates no conflict with other statutory look back
periods employed for other purposes.
                        Separation of Powers
          Petitioners next contend that the Regulations amount to
legislative policymaking -- not administrative rulemaking -- in
violation of the separation of powers doctrine.   "[T]he


                               - 16 -
                               - 17 -                    Nos. 40-42

separation of powers doctrine gives the Legislature considerable
leeway in delegating its regulatory powers" to an administrative
agency to "administer the law as enacted by the Legislature"
(Boreali v Axelrod, 71 NY2d 1, 9-10 [1987]).   As a "creature of
the Legislature," an agency "is clothed with those powers
expressly conferred by its authorizing statute, as well as those
required by necessary implication" (Matter of City of New York v
State of N.Y. Commn. on Cable Tel., 47 NY2d 89, 92 [1979]).     To
that end, an agency is permitted to adopt regulations that go
beyond the text of its enabling legislation, so long as those
regulations are consistent with the statutory language and
underlying purpose (Matter of General Elec. Capital Corp. v New
York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249,
254 [2004]).
            The scope of authority delegated to the Commissioner,
particularly with regard to licensing, is broad.   The
Commissioner has the express authority to issue driver's licenses
(VTL § 501 [1]), to suspend or revoke driver's licenses (VTL §
510 [1]), and to decide whether to grant or deny relicensing
applications (VTL § 510 [6] [a]), including those applications
involving alcohol- or drug-related revocations (VTL § 1193 [2]
[c] [1]).
            With respect to license revocation and reissuance, the
VTL confers discretionary authority on the Commissioner in a
number of ways.   For instance, following a permanent license


                               - 17 -
                              - 18 -                      Nos. 40-42

revocation, the Commissioner may refuse to restore an applicant's
license "in the interest of the public safety and welfare," even
if the applicant is otherwise qualified for a permanent
revocation waiver (VTL § 1193 [2] [b] [12] [b]; VTL § 1193 [2]
[b] [12] [e]).   In the context of relicensing determinations
following an alcohol- or drug-related revocation, the VTL makes
clear that reissuance is -- in all cases -- subject only to the
"discretion of the commissioner" (VTL § 1193 [2] [c]).
           But no matter how facially broad, the legislature's
grant of authority "must be construed, whenever possible, so that
it is no broader than that which the separation of powers
doctrine permits" (Boreali, 71 NY2d at 9).   We have made clear
that the legislature "cannot cede its fundamental policy-making
responsibility to an administrative agency" (id.).   Nor may an
agency use its enabling statute "as a basis for drafting a code
embodying its own assessment of what public policy ought to be"
(id.).   To be sure, "it is the province of the people's elected
representatives, rather than appointed administrators, to resolve
difficult social problems by making choices among competing ends"
(id. at 13).
           Our separation of powers analysis is guided by the four
factors set forth in Boreali v Axelrod (71 NY2d 1 [1987]).    These
four factors -- or "coalescing circumstances" -- are not
"discrete, necessary conditions that define improper policymaking
by an agency," nor are they "criteria that should be rigidly


                              - 18 -
                                - 19 -                   Nos. 40-42

applied in every case in which an agency is accused of crossing
the line into legislative territory" (Matter of New York
Statewide Coalition of Hispanic Chambers of Commerce v New York
City Dept. of Health & Mental Hygiene, 23 NY3d 681, 696 [2014]).
Rather, the factors are related considerations, designed to
ascertain whether an agency has transgressed the bounds of
permissible rulemaking (id. at 696-697).
                                  A.
          The first Boreali factor examines whether the agency
merely "balance[d] costs and benefits according to preexisting
guidelines," or instead made "value judgments entailing difficult
and complex choices between broad policy goals to resolve social
problems" (Greater N.Y. Taxi Assn. v New York City Taxi &
Limousine Commn., 25 NY3d 600, 610 [2015] [internal quotation
marks and citation omitted]).    Balancing of costs and benefits is
inherent in any rulemaking process, and our separation of powers
jurisprudence should not be interpreted to foreclose an agency
from considering the implications of its proposals (Matter of
New York Statewide Coalition of Hispanic Chambers of Commerce,
23 NY3d at 697-698).   Indeed, an agency would be "acting
irrationally" if it "adopted a particular rule without first
considering whether its benefits justify its societal costs"
(id. at 697).   Here, to be sure, DMV "deliberated extensively"
regarding the most "expeditious, effective and fair" means of
addressing the ongoing problem of drunk driving, and assessed


                                - 19 -
                              - 20 -                    Nos. 40-42

the costs and benefits associated with each proposed alternative
(NY Reg, March 13, 2013, at 46).
          But the ultimate aim of the Regulations -- the
legislative policy goal -- is both well-established and widely
shared: protecting the public from the dangers of recidivist
drunk driving.   The legislature, not DMV, made a value judgment
between competing ends, concluding that public safety may
outweigh the licensing interests of recidivist drunk driving
offenders.   The legislature has also expressed a clear intention
to delegate broad authority to DMV to decide post-revocation
relicensing applications, leaving all reissuance determinations
subject to the "discretion of the commissioner" (VTL § 1193 [2]
[c]).
          Moreover, to the extent the Commissioner chose among
competing ends in enacting the Regulations, those choices were
not very difficult or complex, given their direct connection to
public safety (see Matter of New York Statewide Coalition of
Hispanic Chambers of Commerce, 23 NY3d at 699).   Given the
widespread acceptance of their underlying ends, the Regulations
do not "raise difficult, intricate, and controversial issues of
social policy" (id.).   Nor do they interfere with matters of
personal autonomy; although driving may implicate a "commonplace
daily activit[y] preferred by large numbers of people" (Greater
N.Y. Taxi Assn., 25 NY3d at 612), drunk driving -- the problem
targeted by the Regulations -- does not.


                              - 20 -
                               - 21 -                    Nos. 40-42

                                 B.
            The second Boreali factor considers whether the agency
wrote on "a clean slate, creating its own comprehensive set of
rules without the benefit of legislative guidance," or whether it
simply "fill[ed] in the details of broad legislation describing
the over-all policies to be implemented" (Boreali, 71 NY2d at
13).    In Matter of New York Statewide Coalition of Hispanic
Chambers of Commerce v New York City Dept. of Health & Mental
Hygiene, for instance, we invalidated the "Sugary Drinks Portion
Cap Rule" adopted by the New York City Board of Health, which
restricted food service establishments from selling large sugary
drinks (23 NY3d at 690).    There, the Board's enabling legislation
contained a general, overarching mandate concerning the promotion
of public health, but neither the legislature nor the City
Council had ever promulgated a statute -- or otherwise defined a
policy -- concerning excessive soda consumption (id. at 699-700).
We therefore held that the Portion Cap Rule -- a targeted and
specific policy aimed at combating obesity -- amounted to a "new
policy choice" founded on inadequate legislative guidance (id. at
700).
            Here, by contrast, in enacting VTL §§ 1192-1193, the
legislature created a statutory scheme aimed at addressing the
problem of drunk driving and, more specifically, the problem of
recidivist drunk drivers.    Beyond criminalizing drunk driving
(VTL § 1192), the legislature also established licensing


                               - 21 -
                              - 22 -                      Nos. 40-42

implications -- including "minimum" revocation periods --
associated with certain drunk driving offenses (VTL § 1193 [2]).
With regard to reissuance following "the expiration of the
minimum [revocation] period," the VTL contains an express
delegation to the discretion of the Commissioner (VTL § 1193 [2]
[c]).   Taken together, these provisions evince a clear
legislative policy decision to restrict the driving privileges of
recidivist drunk drivers, and to entrust relicensing
determinations to the sound discretion of the Commissioner.    By
establishing rules to guide the Commissioner's discretion, the
Regulations fall squarely within the confines of this statutory
mandate and fill in the details of the Vehicle and Traffic Law in
the manner contemplated by the legislature.
                                C.
           Pursuant to the third Boreali factor, we assess
"whether the legislature has unsuccessfully tried to reach
agreement on the issue, which would indicate that the matter is a
policy consideration for the elected body to resolve" (Greater
N.Y. Taxi Assn., 25 NY3d at 612-613).   Petitioners first argue
that the legislature routinely fails to pass proposed "get tough
on DWI" laws, proving that recidivist drunk driving implicates a
difficult social problem best resolved by elected
representatives.   Petitioners point to a number of failed bills
aimed at addressing drunk driving, including at least three that
would have affected post-revocation relicensing.    Petitioners


                              - 22 -
                               - 23 -                      Nos. 40-42

also claim that the legislature frequently revisits and refines
New York's drunk driving laws, signaling an intention to dominate
the field to the exclusion of DMV.
            Even accepting petitioners' claim that the legislature
has repeatedly tried to reach agreement in this field, the dearth
of successful legislation affords limited probative value in our
analysis.    As we have repeatedly noted, "[l]egislative inaction,
because of its inherent ambiguity, affords the most dubious
foundation for drawing positive inferences" (Matter of Oswald N.,
87 NY2d 98, 103 n 1 [1995], quoting Clark v Cuomo, 66 NY2d 185,
190-191 [1985] [citations omitted]).     Nor does "the mere fact
that the Legislature has enacted specific legislation in a
particular field" necessarily indicate that "broader agency
regulation of the same field is foreclosed" (Matter of
Consolidated Edison Co. of N.Y. v Department of Envtl.
Conservation, 71 NY2d 186, 193 [1988]).
            Notably, DMV has been regulating in the realm of post-
revocation relicensing since 1980.      In the ensuing decades, the
legislature -- though fully capable of corrective action -- has
done nothing to curb the Commissioner's authority or otherwise
signal disapproval.   To the contrary, the legislature has, for
nearly forty years, left the Commissioner's authority intact,
demonstrating the legislature's ongoing reliance on DMV's
expertise.   Given the absence of any legislative interference
over this extended time period, "we can infer, to some degree,


                               - 23 -
                               - 24 -                     Nos. 40-42

that the legislature approves" of the Commissioner's actions
(Greater N.Y. Taxi Assn., 25 NY3d at 612).
                                 D.
          The fourth and final Boreali factor concerns whether
any "special expertise or technical competence" was involved in
the development of the challenged Regulations (Boreali, 71 NY2d
at 14).   Both highway safety (VTL § 210 [1]) and licensing
administration (VTL § 508 [4]) fall squarely within the province
of the Commissioner.    The Commissioner is also specifically
tasked, pursuant to the VTL, with "collect[ing] and analyz[ing]
statistical information and data" pertaining to drunk driving
(VTL § 216-a).   The data collected by the Commissioner -- as well
as other independent studies -- substantiates DMV's contention
that a relatively small number of recidivist drunk drivers are
responsible for a disproportionate number of accidents.
          Invoking its expertise, the Commissioner tightened
relicensing requirements in order to target these high-risk,
recidivist offenders.    By categorizing drunk driving offenders
based on a review of their driving history, the Regulations
ensure consistent treatment of relicensing applicants in a manner
commensurate with the risk that they pose to the public.    And by
implementing relicensing guidelines aimed at promoting highway
safety, the Regulations operate squarely within DMV's area of
expertise.
          On balance, the Boreali factors overwhelmingly weigh in


                               - 24 -
                               - 25 -                      Nos. 40-42

favor of DMV.    Though the line between administrative rule-making
and legislative policy-making may be "difficult to define"
(Boreali, 71 NY2d at 11), here, the Regulations fall squarely
within the bounds of valid administrative action.    The
legislature delegated clear authority to the Commissioner over
post-revocation relicensing applications and, in enacting the
Regulations, the Commissioner acted squarely within the confines
of that authority.    Boreali is not "an escape hatch for those" --
like petitioners -- "who are unhappy with a regulation" (Matter
of New York Statewide Coalition of Hispanic Chambers of Commerce,
23 NY3d at 718 [Read, J., dissenting]).    Accordingly, we hold
that the Regulations were a valid exercise of the Commissioner's
rulemaking authority, consistent with the separation of powers
doctrine.   We reject petitioners' claim to the contrary.
                             Rationality
            Petitioners next contend that the Regulations are
arbitrary and capricious, and therefore cannot withstand rational
basis scrutiny.    Petitioners' rationality challenge focuses on
the meaning of "[s]erious driving offense" (15 NYCRR 136.5 [a]
[2]) and "alcohol- or drug-related driving conviction or
incident" (15 NYCRR 136.5 [a] [1]), as defined by the
Regulations.
            "The standard for judicial review of an administrative
regulation is whether the regulation has a rational basis and is
not unreasonable, arbitrary or capricious" (Matter of Consolation


                               - 25 -
                               - 26 -                     Nos. 40-42

Nursing Home v Commissioner of N.Y. State Dept. of Health, 85
NY2d 326, 331 [1995]).    To meet this "limiting" standard,
petitioners must show that the Regulations are "so lacking in
reason" that they are "essentially arbitrary" (Kuppersmith v
Dowling, 93 NY2d 90, 96 [1999]).
          Petitioners fail to meet this heavy burden.
                                A.
          Petitioner Matsen argues that the definition of
"serious driving offense" (15 NYCRR 136.5 [a] [2]) is both
overinclusive and underinclusive, and creates an unreasonable
outcome for an applicant who -- like Matsen -- "has three or four
alcohol- or drug-related convictions or incidents" and "one or
more serious driving offenses" within the 25 year look back
period (15 NYCRR 136.5 [b] [2]).     Petitioner Matsen first claims
that the definition is overly broad, noting that her "serious
driving offense" -- two six-point speeding violations -- is
treated more seriously under the Regulations than a fourth drunk
driving offense, triggering a lifetime ban on relicensing rather
than a five-year waiting period (compare 15 NYCRR 136.5 [b] [2]
with 15 NYCRR [b] [3]).    Similarly, petitioners Carney and Matsen
complain that the Regulations are irrational to the extent that
applicants with five or more drunk driving offenses -- like
Carney -- are treated the same as applicants with three or four
drunk driving offenses and a "serious driving offense" -- like
Matsen (compare 15 NYCRR 136.5 [b] [1] with 15 NYCRR [b] [2]).


                               - 26 -
                               - 27 -                    Nos. 40-42

Lastly, petitioner Matsen contends that the definition of
"serious driving offense" is too narrow, and therefore arbitrary
and capricious, because it excludes certain offenses, such as
first-degree aggravated unlicensed operation of a motor vehicle
(VTL § 511 [3]) and fleeing the scene of an accident resulting in
serious physical injury (VTL § 600 [2]).
            In formulating the Regulations, DMV "deliberated
extensively about how to restrict the driving privileges of
persons who are eligible for relicensure but who might continue
to present highway safety concerns" (NY Reg, March 13, 2013, at
46).    Among other things, DMV considered its own collection of
empirical data, including statistics pertaining to drunk driving
offenders and other high-risk relicensing applicants (VTL § 216-
a).    The inclusion of the "serious driving offense" provision in
the Regulations amounts to a line-drawing determination by the
Commissioner regarding the degree of danger posed by various
traffic offenses that do not involve drunk driving -- a value
judgment warranting substantial deference.    We decline to disturb
the Commissioner's informed and reasonable determination, made
pursuant to an express delegation of authority and falling well
within DMV's unique area of expertise (see Matter of Consolation
Nursing Home, 85 NY2d at 331).
                               B.
            Petitioners Acevedo and Carney next challenge the
Regulations' definition of "alcohol- or drug-related driving


                               - 27 -
                              - 28 -                      Nos. 40-42

conviction or incident" (15 NYCRR 136.5 [a] [1]).3   In
particular, petitioners contend that the definition is
underinclusive, and therefore irrational, because it fails to
include certain youthful offender violations and felony
convictions that are drunk driving-related.
          Contrary to petitioners' claim, the definition of
"alcohol- or drug-related conviction of incident" is not "so
lacking in reason" that it is "essentially arbitrary"
(Kuppersmith, 93 NY2d at 96 [1999]).   The exclusion of youthful
offender violations, for instance, reflects a reasonable
determination by the Commissioner that, unlike other drunk
driving offenders, a youthful offender's conduct -- although
serious -- may be largely attributable to the offender's age and
immaturity at the time of the incident (see People v Drayton, 39
NY2d 580, 584 [1976]).   Similarly, the Commissioner's exclusion
of certain felony convictions, such as first-degree aggravated
unlicensed operation of a motor vehicle (VTL § 511 [3]),
reasonably recognizes that such convictions do not necessarily
involve drunk driving and therefore do not warrant treatment as
an "alcohol- or drug-related conviction of incident" under the
Regulations.
          Because the Regulations have a sound and reasonable
basis, petitioners' rationality challenge must be rejected.


     3
       This contention is unpreserved with respect to petitioner
Matsen.

                              - 28 -
                                - 29 -                     Nos. 40-42
                   Retroactivity & Ex Post Facto
           Lastly, petitioners argue that the denial of their
relicensing applications constitutes an impermissible retroactive
application of the Regulations and a violation of the Ex Post
Facto Clause of the United States Constitution (US Const, art 1,
§ 10, cl 1).   Petitioners' retroactivity arguments are
unavailing.
           While New York law does not favor retroactive
operation, the Regulations were not impermissibly applied
retroactively to petitioners' applications simply because the
Commissioner considered prior conduct -- namely, petitioners'
drunk driving offenses -- that predated the Regulations.     As we
have previously noted, regulations are not retroactive "when made
to apply to future transactions merely because such transactions
. . . are founded upon antecedent events" (Forti v New York State
Ethics Commn, 75 NY2d 596, 609-610 [1990] [internal quotation
marks and citation omitted]).    Here, the Regulations did not
rescind petitioners' existing licenses on the basis of prior
conduct.   Rather, the Regulations applied only to the
Commissioner's prospective consideration of petitioners' pending
relicensing applications -- a "future transaction[]" (id. at
609).   The Commissioner's consideration of "antecedent events" --
petitioners' driving records -- does not, by itself, render the
Regulations "retroactive" in nature (Matter of St. Clair Nation v
City of New York, 14 NY3d 452, 456-458 [2010] [internal quotation


                                - 29 -
                                - 30 -                      Nos. 40-42
marks and citation omitted]).
          For the same reason, we reject petitioners' contention
that the Regulations, as applied to their applications,
constitute a violation of the Ex Post Facto Clause of the United
States Constitution (Forti, 75 NY2d at 610 n 4; Matter of St.
Clair Nation, 14 NY3d at 458 n 3).       In any event, "[t]he
prohibition on ex post facto laws" is inapplicable, as it
"applies only to penal statutes" (Kellogg v Travis, 100 NY2d 407,
410 [2003]).   The "revocation of the privilege of operating a
motor vehicle" -- and by extension, the denial of the privilege
of relicensing -- is "essentially civil in nature," as it serves
primarily to "protect[] . . . the public from such a dangerous
individual" (Matter of Barnes v Tofany, 27 NY2d 74 [1970]).
Because they "do[] not seek to impose a punishment," the
Regulations "do[] not run afoul of the Ex Post Facto Clause"
(Kellogg, 100 NY2d at 410 [emphasis in original]).
          We therefore reject petitioners' argument that the
Commissioner's consideration of conduct that occurred before the
promulgation of the Regulations constituted retroactive
application.
                                 IV.
          The lower courts properly upheld the Regulations -- and
their application to petitioners' relicensing applications -- as
a valid exercise of the Commissioner's delegated authority.
Accordingly, in Matter of Acevedo and Matter of Carney, the order


                                - 30 -
                                  - 31 -                       Nos. 40-42
of the Appellate Division should be affirmed, without costs; and
in Matter of Matsen, the order of the Appellate Division should
be affirmed, without costs, and certified question not answered
as unnecessary.
*   *   *   *     *   *   *   *     *      *   *   *   *   *   *   *   *
For Case No. 40 and Case No. 41: Order affirmed, without costs.
Opinion by Judge Garcia. Chief Judge DiFiore and Judges Rivera,
Fahey and Wilson concur. Judge Stein took no part.
For Case No. 42: Order affirmed, without costs, and certified
question not answered as unnecessary. Opinion by Judge Garcia.
Chief Judge DiFiore and Judges Rivera, Fahey and Wilson concur.
Judge Stein took no part.

Decided May 9, 2017




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