206 Misc. 393 | N.Y. Sup. Ct. | 1954
The petitioner seeks a review of the determination of the Commissioner of Motor Vehicles in revoking his operator’s license and seeks a reinstatement thereof. The first ground of the application is that he was not advised of his rights upon arraignment and conviction of the third charge of speeding. The second ground is of the refusal of the Commissioner of Motor Vehicles to grant an operator’s license after the expiration of six months from the date of the revocation of said license upon the petitioner’s new application therefor, such second ground being based upon the claim that the commissioner acted arbitrarily and capriciously.
As to the first ground, the commissioner in his answer sets forth that by reason of section 1286 of the Civil Practice Act a proceeding under article 78 must be instituted by the service of the petition and accompanying papers within four months after the determination to be reviewed becomes final and binding. The petitioner was arrested on June 16,1953, was arraigned on that day and upon a plea of guilty, was sentenced. The suspension order was issued on September 22, 1953, and the petition was not served until May 6, 1954, clearly more than four months after the issuance of the revocation order. I am of the opinion that section 1286 prohibits the institution of the proceedings by petitioner upon the ground he was not advised of his rights. Although the question was not raised by the petitioner, his conviction occurred fifteen days before the effective date of the 1953 amendment to section 335-a of the Code of Criminal Procedure. The petitioner sets forth that at the time of entering a plea of guilty he thought that a fine would be the only penalty arising out of the offense and that he was not informed that his driver’s license must be revoked and that he was not properly advised of his rights. Nothing contradictory of this statement was submitted on behalf of the respondent. The law as it existed at the time of the conviction of the petitioner was well settled that unless one charged with a violation was advised
The fact that the law had been so established was well known to the Commissioner of Motor Vehicles as it was given by him in supporting passage of the 1953 amendment to section 335-a, which became effective July 1, 1953. (New York State Legislative Annual —1953, p. 266.)
If the petitioner was not properly advised of his rights, while he is barred from raising the question by reason of the provisions of section 1286 in this proceeding, his rights are amply protected by the requirement of subdivision 6 of section 71 of the Vehicle and Traffic Law which provides as follows: “No suspension or revocation of a license or certificate of registration shall be made because of a judgment of conviction if the suspending or revoMng officer is satisfied that the magistrate who pronounced the judgment failed to comply with section three hundred and thirty-five-a of the code of criminal procedure. In case a suspension or revocation has been made and the commissioner is satisfied that there was such failure, he shall restore the license or certificate of registration or both as the case maybe.”
As far as the record before me is concerned it would seem clear that the petitioner had not been properly advised of his rights under the law as it existed at that time and .is entitled to relief under the provisions of subdivision 6 of section 71. The petitioner relied upon other grounds and cannot be given relief in this proceeding.
As to the second ground set forth in the petition, the petitioner alleges that he surrendered his operator’s license in accordance with the revocation order of the Commissioner of Motor Vehicles on September 22, 1953, and after the expiration of six months from the date of such surrender he made a new application for an operator’s license and paid the required fee therefor. That on April 14,1954, he received a letter from the Bureau of Motor Vehicles denying Ms application, such letter reading as follows:
" With reference to your application for a driver’s license, we wish to advise that your case has been reviewed and your record carefully examined.
*397 ‘ ‘ Because of your record of traffic law violations, it is deemed inadvisable to grant you the privilege of operating motor vehicles at this time.
“You may again apply for a license on or after Sept. 21,1954 and submit an original application, at which time your request will be given consideration.
“ The appalling number of disastrous motor vehicle accidents on the highways of our State forces us to use every means within our power to insure that operators recognize their responsibility.
“ A record involving several violations of the traffic laws must be carefully considered, and we must be certain that the offender is made to realize the seriousness of his improper driving so that there will be no further violations by him.
“ We wish to stress that until your license is restored you cannot legally operate a motor vehicle. Any such violation will affect the approval of an application submitted on or after the above date.”
The petitioner further sets forth that his operator’s license was revoked because of a conviction of three charges of speeding within a period of eighteen months. That for each conviction he paid the fine which was imposed upon him by the magistrate and upon the revocation of his license he surrendered it to the commissioner as required. That he has been guilty of no other traffic law violation other than the three speeding charges referred to and has not been involved in any accidents. That he is insured and otherwise has a good driving record and he charges that the act of the commissioner in refusing to grant him an operator’s license is without reason and is arbitrary and capricious.
The Commissioner of Motor Vehicles in his answer sets forth no reason for his refusal to issue an operator’s license to the petitioner except to state the mandatory revocation as required by statute and to quote the contents of subdivision 5 of section 71 of the Vehicle and Traffic Law: “ Where revocation is mandatory hereunder, no new license shall be issued for at least six months after such revocation, nor thereafter, except in the discretion of the commissioner of motor vehicles ”. There is attached to the answer as Exhibits A, B, and C the order of revocation, the application of the petitioner for the issuance of a new license and the letter of the commissioner refusing the application. The application, which is upon the form provided by the commissioner sets forth the three convictions for speeding for which the petitioner’s license was originally
In considering the charge made by the petitioner that the action of the commissioner was arbitrary and capricious, it is interesting to note that in the blank space provided therefor in the application, there is written the following: “ denied 4/6/54 75B ”. The reference to “ 75B ” apparently is to the letter which the commissioner sent to the petitioner, which has herein-before been set forth in its entirety, as that letter bears the reference “ 75B ” at the foot thereof indicating it to be a form letter. The two following paragraphs in the letter are it seems to me significant:
‘ ‘ The appalling' number of disastrous motor vehicle accidents on the highways- of our State forces us to Use every means within our power to insure that operators recognize their responsibility.
“ A record involving several violations of the traffic laws must be carefully considered and we must be certain that the offender is made to realize the seriousness of his improper driving so that there will be no further violations by Trim.’’ These statements would seem to clearly indicate, particularly in view of the fact that it is contained in a form letter, that the Commissioner of Motor Vehicles had adopted a policy, in many instances' at least, of refusing to issue a new license to one whose license had been mandatorily revoked for a period of one year instead of six months as permitted by statute. Possibly this is done under the belief that the statutory expression “ nor thereafter, except in the discretion of the commissioner of motor vehicles ” means a discretion to adopt a policy of punishment greater than that fixed by the statute. I cannot subscribe to the placing of any such interpretation upon the word “ discretion ”. An excellent statement of the meaning*400 of “discretion” is contained in Calzaretta v. Mulrain (131 N. Y. S. 2d 76), where the court stated, at page 79: “ No facts are set forth by the respondent to warrant or justify his refusal and unless he can do so, in the face of her eligibility for a widow’s pension, his denial thereof was not a ‘ lawful ’ exercise of discretion, but an arbitrary, capricious, unreasonable and illegal exercise thereof, viz., an abuse of discretion. There is an abuse of discretion by public officials where the power or right to act in an official capacity is unreasonably exercised. * * * Discretion as applied to public officers means power or right to act in an official capacity in a manner which appears to be just and proper under the circumstances ”. (Emphasis supplied.)
The petitioner has set forth that he is an electrician by trade; that he works on construction projects and that by reason of the fact that he is not licensed to operate an automobile he is unable to go to a place of employment and as a result is unemployed. The privilege of operating an automobile is a substantial one and in the present state of our economy is a real necessity for those who are obliged to earn a livelihood, particularly if they are required in doing so.to travel from place to place.
The courts have recently recognized the importance of the right to drive an automobile. Excellent discussions of this subject are contained in the following cases: (City of Rochester v. Falk, 170 Misc. 238, 241; Matter of Schutt v. Macduff, 205 Misc. 43, 53; Matter of McCord v. Fletcher, 182 Misc. 447, 450) and in Matter of Wignall v. Fletcher (303 N. Y. 435), a very late decision of the Court of Appeals, Judge Froessel, writing for the court, stated at page 441: “We are here dealing with the exercise of power by the commissioner in the revocation of a driver’s license, and our decision will apply not only to this petitioner, but may affect any other holder of a driver’s license in the State of New York. A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process. If in the instant case it may be done loosely and informally and without regard to the statutes in such case made and provided, then it may be done in any case, and every automobile driver in the State will be at the mercy of the commissioner and his assistants. However much we may recognize the need for the rightful exercise by the commissioner of his duties in his laudable effort to prevent unsafe driving on the highways, it would be a dangerous step indeed if we
In the present ease the petitioner, after being convicted three times within a period of eighteen months in violation of subdivision 3 of section 56 of the Vehicle and Traffic Law, paid the penalty imposed upon him in each instance by the magistrate and upon his license being mandatorily revoked by reason of the statutory provision therefor, surrendered his license and was without the same for a period of six months.
The mandatory revocation required by paragraph (c) of subdivision 2 of section 71 of the Vehicle and Traffic Law is the only instance which has come to my attention where a mandatory revocation is provided for in the case of an offense which is not classified at least a misdemeanor.
Speeding is a traffic infraction only. (Vehicle and Traffic Law, § 70; Matter of Lea v. Macduff, 205 Misc. 24.) Violations of section 56 result on the open road by a speed in excess of fifty miles per hour and in more restricted areas by speeds in excess of from ten to thirty-five miles per hour as the case may be. It is, I believe, a matter of common knowledge that enforcement of the statute by police officers depends upon the individual officer’s judgment, some officers enforcing the slightest infraction and others tempering enforcement depending on the amount of excess speed and road and traffic conditions. I am sure that any court would take judicial notice that speeds as high as sixty miles an hour, or speeds five miles in excess of the speed limit in more restricted areas, while violating the statute would not under proper road and traffic conditions constitute such a serious traffic law violation as would justify withholding a mandatorily revoked license for an extra six months without giving the applicant an opportunity to be heard and certainly without some evidence that a thorough and fair investigation had been made.
The possible effect of the requirement of section 56 for a mandatory revocation after conviction of three violations within eighteen months is well stated in the case of City of Rochester v. Falk (170 Misc. 238, 242). The present case involves only three violations of section 56 for speeding and there is nothing before me indicating that the violations were in any sense serious ones — no accident resulted therefrom.
It is not the purpose of this opinion to indicate that under proper circumstances, an operator’s license should not be refused at the expiration of six months after the same has been revoked for speeding but there must be facts and circumstances
Order accordingly, with $10 costs.