People v. Rivera

OPINION OF THE COURT

Smith, J.

We hold that a driver whose license has been revoked, but who has received a conditional license and failed to comply with its conditions, may be prosecuted only for the traffic infraction *656of driving for a use not authorized by his license, not for the crime of driving while his license is revoked.

I

On November 14, 2007, defendant was convicted of driving while intoxicated. The conviction carried with it the revocation of his license for a minimum of six months (Vehicle and Traffic Law § 1192 [2]; § 1193 [2] [b] [2]). However, as a first-time offender, defendant was eligible to participate in a rehabilitation program offered by the Department of Motor Vehicles (see Vehicle and Traffic Law § 1196) and, as a participant in the program, to receive a conditional license (Vehicle and Traffic Law § 1196 [7] [a]). Defendant entered the program and received a conditional license, which permitted him to drive to and from his place of work; as required by his job; to and from the rehabilitation program and related activities; to and from a school; and between noon and 3:00 p.m. on Saturdays.

On February 10, 2008, while his conditional license was in effect, defendant was arrested for driving while intoxicated at 1:04 a.m. He was with a woman he identified as his girlfriend, and told the arresting officer he was coming from “the bars.” He was indicted for several offenses, but the only count of the indictment that now concerns us charged him with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3]). On defendant’s motion, Supreme Court dismissed this count before trial, and the Appellate Division affirmed (71 AD3d 700 [2010]). A Judge of this Court granted the People leave to appeal (15 NY3d 756 [2010]), and we now affirm.

II

At issue is the relationship between two offenses defined in separate sections of the Vehicle and Traffic Law. Defendant’s alleged conduct clearly violated Vehicle and Traffic Law § 1196 (7) (f), which says: “It shall be a traffic infraction for the holder of a conditional license ... to operate a motor vehicle upon a public highway for any use other than those authorized.” A violation of section 1196 (7) (f) is punishable by a fine of up to $500, not more than 15 days of imprisonment and revocation of the conditional license.

The People argue, however, that defendant also violated Vehicle and Traffic Law § 511, which prohibits “aggravated unlicensed operation of a motor vehicle.” That crime is committed when a person “operates a motor vehicle upon a public *657highway while knowing or having reason to know that such person’s license or privilege of operating such motor vehicle . . . is . . . revoked” (Vehicle and Traffic Law § 511 [1] [a]). Simply driving with a revoked license constitutes third degree aggravated unlicensed operation, a misdemeanor punishable by a fine, a jail term of up to 30 days, or both (id.). Doing so when the license was revoked for driving while intoxicated is second degree aggravated unlicensed operation, a more serious misdemeanor that can bring a jail term of up to 180 days (Vehicle and Traffic Law § 511 [2] [a] [ii]; [b]). And committing the second degree crime while under the influence of alcohol constitutes the first degree crime, with which defendant was charged; it is a class E felony punishable by up to four years of imprisonment (Vehicle and Traffic Law § 511 [3] [a] [i]; [b]; Penal Law § 70.00 [2] [e]).

Defendant points out that, at the time in question, he had a valid, unrevoked driver’s license, though a conditional one. Thus he cannot, he says, be prosecuted for driving while his license was revoked. The People argue in substance that defendant should be viewed as having two licenses: the conditional one, good only at certain times and for certain purposes; and the revoked license, in existence at all other times. When defendant was arrested, on the People’s theory, only his revoked license existed.

Defendant’s reading of the statutory language is the more natural and straightforward one. It also finds strong support in the legislative history of Vehicle and Traffic Law § 1196 (7) (f).

Until section 1196 (7) (f) was enacted in 1989, the only Vehicle and Traffic Law provision that addressed violations of conditions stated in a driver’s license was section 509 (3): “Whenever a permit or license is required to operate a motor vehicle, no person shall operate any motor vehicle in violation of any restriction contained on, or applicable to, the permit or license.” Before 1989, a violation of section 509 (3) was a traffic infraction for which the fine could not exceed $50, and for which imprisonment for a first offense could not exceed 15 days (see former Vehicle and Traffic Law § 1800). In two pre-1989 cases, trial level courts considered whether someone in the position of defendant here—someone whose license had been revoked, who had received a conditional license as part of a rehabilitation program, and who had then violated the conditions on the license—should be prosecuted under Vehicle and Traffic Law *658§ 509 (3) or Vehicle and Traffic Law § 511. The court in People v Tousley (86 Misc 2d 1059 [Yates County Ct 1976]) held that section 509 (3) was applicable and section 511 was not. The court in People v Sabin (139 Misc 2d 641 [Westchester County Ct 1988]) disagreed, concluding that the driver could be prosecuted under section 511.

In March 1989, a bill was introduced in the Senate at the request of the State Police that would have rejected Tousley and enacted the Sabin court’s view of the law. As introduced, it would have amended Vehicle and Traffic Law § 511 (a) to add:

“The suspension or revocation of the license or operating privilege of a person convicted of a violation of section eleven hundred ninety-two of this chapter, and who has been issued a conditional license or privilege pursuant to subdivision seven of section eleven hundred ninety-six of this chapter, shall continue to be effective any time such person operates a motor vehicle in violation of the terms of such conditional license or privilege.” (1989 NY Senate Bill S3103 § 1 [a].)

This proposal—which states the position the People advance in this case—was not adopted. It was replaced during the legislative process by a bill that left section 511 unchanged in substance and instead created a new paragraph (f) of section 1196 (7). That paragraph, quoted above, created a new and more serious traffic infraction to deal with cases like this one—an infraction resulting in a larger fine than a violation of section 509 (3), and revocation of the conditional license. A letter from the Assembly sponsor of this measure to the Governor’s Counsel described the existing law that the bill would change as being in accord with the Tousley, not the Sabin, case—in other words, with defendant’s position here, not the People’s: “a person who operates outside the terms of a conditional license granted after conviction for an alcohol-related offense is subject only to the standard traffic infraction involving a fine of up to $100 and/or 15 days in jail.” (Letter of Michael J. Bragman to Evan A. Davis, July 7, 1989, Bill Jacket, L 1989, ch 420, at 7 [emphasis added].) The letter went on to explain that the bill the Legislature enacted

“addresses the disparity by making the penalty for operating outside the terms of a conditional license subject to a fine of not less [than] $200 nor more *659than $500 and/or a term of imprisonment of up to 15 days. The measure also calls for the revocation of the conditional license” (id.).

In sum, the Legislature decided not to amend section 511 to make what this defendant did a crime, but instead to make it a more serious traffic infraction; and the Assembly sponsor said plainly that he thought such offenders could be prosecuted only for traffic infractions. Comments from the Department of Motor Vehicles (Bill Jacket, L 1989, ch 420, at 10-11), the Division of Criminal Justice Services (id. at 14-15) and the Division of Alcoholism and Alcohol Abuse (id. at 19) expressed a similar opinion, though the Division of Parole thought otherwise (id. at 20).

Thus the legislative history as a whole powerfully reinforces what is in any event the most plausible reading of the statutory language: Vehicle and Traffic Law § 511 does not reach cases like this one. Every court to have considered the question since Vehicle and Traffic Law § 1196 (7) (f) was enacted—the courts in People v Greco (151 Misc 2d 859 [App Term 1992]) and People v Buckley (13 Misc 3d 910 [Sullivan County Ct 2006]), and the lower courts in this case—has reached that conclusion, and so do we.

The People argue that this reading of the statute disserves our State’s strong public policy to combat drunken driving with serious penalties. They suggest that a maximum punishment of a $500 fine and 15 days in jail, coupled with revocation of the conditional license, is simply not an adequate sanction for someone who, having been given a limited right to drive after violating the law, has violated it again by ignoring the limitations. Admittedly, there is a large disparity between the punishments available under Vehicle and Traffic Law § 1196 (7) (f) for a driver who fails to meet the conditions on a conditional license and those available under Vehicle and Traffic Law § 511 for one who has only a revoked or suspended license. But that is exactly the problem that the Legislature addressed when it enacted section 1196 (7) (f). If its way of dealing with the problem was not adequate, it should be asked to take up the issue again.

Accordingly, the order of the Appellate Division should be affirmed.