Thursday, October 04, 2012

New DMV Rules for Repeat DWI: A Phony Emergency

The New York DMV has issued a new set of proposed rules affecting repeat DWI cases. This received a brief splash of coverage in the media, such as Casey Seiler's article in the Times Union. This has an impact on anyone convicted of a DWI offense who has a prior offense within the past 25 years.*
Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.
So far we have yet to see a thorough analysis of the proposal, or discussion of the DMV's decision to impose the rules before public comment as an "emergency." In this post I discuss the phony emergency and abuse of the regulatory process. In the next I'll discuss the details of the rules. --Update - link is here: NY DWI Repeat Offender New DMV Rules --

DMV describes this as about "Dangerous Repeat Alcohol or Drug Offenders" on the DMV's Proposed Rules page, with the following note:
Emergency Rule
Effective September 25, 2012
Comments accepted until
November 26, 2012
DMV Commissioner Fiala
The emergency designation puts the rule into effect immediately, before public comment.  The idea is that something has happened (an emergency) that makes this urgent and something that must be done.

What's the emergency? New York State was one of the first to make drunk driving illegal, back in 1910 (per Wikipedia on history of drunk driving laws). The legislature has made changes to the law over the years, such as adding Aggravated DWI back in 2006, and the new ignition interlock law in 2010. The laws already address repeat offenders in a variety of ways.

Here's a common definition of emergency:
A serious, unexpected, and often dangerous situation requiring immediate action.
The repeat DWI problem may be serious and dangerous, but the "unexpected" is missing. There is no emergency. There is no need for immediate action either. Using the emergency approach is an end run around the normal regulatory process.

The regulatory approach is also an end run around the legislative process. DMV is making new and substantial rules affecting people accused of drunk driving offenses. This is really the legislature's job, and something they have not hesitated to do in the past.

For example, Vehicle and Traffic Law Section 1196 sets rules regarding the Drinking Driver Program (which includes eligibility for a conditional license) and subsection 4 bars repeat offenders if their prior offense was within five years. VTL 1193 makes an offense a felony if there is a prior offense within ten years.

If there is a need for further rules regarding repeat offenders, the legislature has demonstrated a willingness to do something about it. The proper path in a representative democracy is for our elected representatives to make such rules through the legislative process. Instead the DMV decided to skip that and create its own rules.

One real consequence of this is that it blindsides people dealing with DWI cases right now because it is retroactive. An attorney friend contacted me about a case where he already negotiated a plea agreement in early September. His client will now be affected by a rule that did not exist when he committed his offense. Thanks to the "emergency" trick, they did not have notice of the rule when he made his plea deal. If this were done through the legislative process or at least not used the phony emergency designation there would have been some public notice of what was going on.

In my next post I'll provide a detailed analysis of the changes in the new rules.

*One of the proposed rules amends Regulation 134.10(b) to prohibit those with 2 convictions within the past 25 years from early termination of suspension/revocation after completion of the Drinking Driver Program.
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