A victim was seriously injured and his wife was killed as a result of a collision near Syracuse in August 1973. An eastbound vehicle operated by a driver, to whom an interim driver’s license had been issued two days earlier, crossed into the westbound lane and collided with the oncoming victim’s vehicle, as a consequence of the accident, the driver was convicted of driving while intoxicated (as a felony) and criminal negligent homicide.
A New York Criminal attorney said that it is claimed that the state is responsible for the injuries to the victim and the death of his wife because its agents and employees were negligent in establishing and operating the Onondaga County DWI Counter-Attack Program (Onondaga Program) in violation of the statutory authority for its creation, and were further negligent in issuing the interim driver’s license to the driver who, it is said, was not a proper candidate for such a license. The cases were tried in the Court of Claims on the issue of liability only, the parties having stipulated to reserve the issue of damages for later trial in the event liability was found. The trial court determined that the state’s agents and employees were negligent; that such negligence was the proximate cause of the injuries to the victim and the death of his wife; and that the claims were not proscribed by the doctrine of sovereign immunity.
The Court reversed and dismissed the claims.
In an effort to improve highway safety, the Legislature in 1968 enacted article 21 of the Vehicle and Traffic Law to provide for the creation, by regulation, of “Experimental Driver Rehabilitation Programs” by the Commissioner of Motor Vehicles. Broad authority was given to the commissioner “to institute studies and experimental programs designed to determine the most effective methods of improving driver skills and attitudes towards DWAI in order to reduce traffic violations and motor vehicle accidents”.
The legislation also provided for the appointment by the commissioner of a Driver Rehabilitation Advisory Board, the function of which was to advise the commissioner with respect to the nature and content of educational courses to be offered in conjunction with a program and to establish criteria for the selection of candidates. Participation in a program was restricted to those persons referred by the board.
The board was appointed in 1969 and thereafter, the commissioner established five separate experimental programs; one each to be operated in New York City, Monroe County, Nassau County, Suffolk County, and another for operation in Onondaga, Erie and Westchester Counties. The Onondaga program was a cooperative venture of the Department of Motor Vehicles, Onondaga Community College and the Automobile Club of Syracuse.
The driver was convicted in the Town of Cicero for having driven while his ability was impaired by alcohol DUI. In accordance with procedures established by the commissioner, the Cicero Town Justice forwarded the driver’s driver’s license and a certificate of conviction to the Syracuse office of the Department of Motor Vehicles, from which the Onondaga program was operated. He did not, however, immediately forward the renewal section of the license, which should have contained a record of previous convictions.
At the time of the Onondaga conviction the town justice neither took possession of driver’s license nor did he note the conviction on the renewal section. In disregard of a departmental directive to mail certificates of conviction to the Syracuse district office the town justice mailed that of the driver to the department’s Albany office where it was received on August 27, too late to be reflected on the computer abstract of his driving record which was furnished to the Syracuse office. Thus, when the driver was tentatively approved for the Onondaga DWI program, the district director’s office was unaware of the conviction in the Town of Onondaga for which his license was subject to mandatory revocation.
The trial court’s assessment of the state’s negligence may be divided into two parts, the first of which pertained to purported statutory violations. The court found that the commissioner failed to establish the Onondaga program “by regulation”; failed to consult with and utilize the expertise of the board concerning the operation of the program; and accepted candidates into the program who were not referred by the board. Additionally, the court found that participation by any person who stood convicted of driving while intoxicated was statutorily prohibited.
The trial court was clearly in error in holding that one convicted of driving while intoxicated was automatically ineligible for the Onondaga program. Quite the opposite was true. That the legislative goal was to experiment with only the more serious violators is evident from the statutory requirement that participation was limited to those whose driver’s licenses were “subject to either mandatory or permissive suspension or revocation and against whom there is a tentative order of suspension or revocation “. Qualified candidates included those persons who stood convicted under section 1192 of the Vehicle and Traffic Law of driving while intoxicated, DUI, or driving while ability was impaired by the consumption of alcohol.
Any person participating in a program was permitted to retain his driver’s license, provided he complied with the program’s “attendance (and) other requirements”. In approving the legislation, the Governor stated, inter alia: “The bill, by establishing an alternative to license suspensions or revocations, will extend the concept of driver improvement through driver training, and will allow for a comparison between the effectiveness of license suspension or revocation and that of mandatory participation in criminal rehabilitation sessions”.
It is apparent that the implementation of any program under such broad statutory authority was fraught with danger. One of the expressed legislative and executive intentions was to permit those whose right to operate a vehicle would otherwise have been withdrawn, to continue to drive upon the public highways with the prospect that the educational programs attendant on that permission would prove a better alternative to those then available. It was by “comparison” that the ultimate determination of “the most effective methods of improving driver skills and attitudes” would be made.
The experimental licensing program here will furnish no basis for the state’s liability in the absence of a breach of duty to the claimant supported by proof that the DWAi program was the product of inadequate study or that it lacked any reasonable basis, or that it was improperly operated.
No evidence was offered to challenge the rationality of the criminal program and thus our focus turns to that part of the trial court’s determination of negligence relating to its operation. In that connection the court found that the screening process was inadequate to discover the nature of the risk to be assumed in granting an interim permit to the driver. The essence of this contention revolves about the failure of the issuing agency to be aware of his prior conviction for driving while intoxicated a factor which, it is argued, would have disqualified the driver under both the commissioner’s operating guidelines and the applicable statutes.
The guidelines provided that no person should be accepted into the program who did not have a valid license or whose license had been revoked prior to the revocation or suspension order constituting the basis for his participation. Such a directive was compatible with the statutory provision that upon a mandatory license revocation, no new license may be issued “for at least six months after such revocation”.
Since the license was necessarily was revoked by the Onondaga Town Justice, it is claimed that he was not a qualified participant. In the view taken of this case, it is unnecessary to decide the issue of the eligibility of the driver. The Court noted only that the guidelines permit a contrary interpretation, since he was a properly licensed driver on the date of his arrest in the Town of Cicero and he was not convicted until after the conviction in the Town of Onondaga. Moreover, the authority to have included the Town of Onondaga conviction as part of the “basis for (his) participation” in the program cannot be questioned.
It is charged that the state knew or should have known of the prior conviction by virtue of the arrival of the certificate of conviction at the department’s Albany office two days before the issuance of the interim license to the driver.
The Court disagrees.
There is no dispute that the employees of the Onondaga program did not have actual notice of the conviction and in consideration of the complexities of the departmental operation and its consequent reliance upon computerization, we will not premise a finding of notice upon the presence of the certificate on a clerk’s desk in Albany.
The question of whether constructive notice should be assessed to the state in the context of this case depends not only on “whether an inquiry would have revealed the fact, but whether, acting as an ordinarily prudent person would have done, the person to be charged was called upon, under the circumstances, to make inquiry”.
It was the duty of the employees of the Onondaga program to comply with the criminal procedures which had been established for its operation. Those procedures included built-in safeguards which, in the normal course, would have disclosed the prior conviction. That it was not disclosed was primarily attributable not to any failure on the part of employees of the program but rather in part to the failure of others and in part to the novel circumstances here presented.
This is not to say that the procedural operation was unreasonably defective. While it is suggested that additional procedural steps should have been devised so as to guarantee that no interim license would be improperly issued, judicial inquiry must be limited to the question of whether the approved procedure was reasonably geared to the acceptance of only those qualified for participation. The Court found that it was. The issuing office was required to review the computer abstract of the applicant’s driving record which ordinarily would have revealed all prior convictions. The renewal portion of the applicant’s license was also to be examined.
Had the Onondaga Town Justice adhered to proper procedure in fulfilling his responsibilities, the employees of the Onondaga program would have been aware of the claimed impediment to the driver’s application..
The procedures adopted for this experimental drivers’ program reflect the policy judgment of the state’s managerial and executive personnel acting within the province of their professional capacities. The soundness of the established method of operation is beyond review for the reason that such review would constitute a judicial incursion into the immunized area of basic policy decision-making of a coordinate branch of government. DUI is always an issue.
Nor may it be said here that circumstances were such when the driver was granted the interim permit that there was no reasonable view under which it should have been granted. It remains the law that the “risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation”. The perceptible risk here was not beyond that contemplated by the Legislature and Executive in authorizing the program. Thus there arose no duty to the claimant which was breached by the issuance of the interim license.
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