Bath v. Colorado Dept. of Revenue, Motor Vehicle Div.

• Decision Date: 05 July 1988
• Docket Number: No. 86SA197,86SA197
• Citation: 758 P.2d 1381
• Parties: Sharon P. BATH, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1381

758 P.2d 1381

Sharon P. BATH, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION Defendant-Appellant.

No. 86SA197.

Supreme Court of Colorado En Banc.

July 5, 1988.

Norman Thom, Colorado Springs, for plaintiff-appellee.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Denver, for defendant-appellant.

KIRSHBAUM, Justice.

The Motor Vehicle Division of the Colorado Department of Revenue (the Department) appeals a portion of an order of the El Paso County District Court declaring facially unconstitutional section 42-2-122.1(6)(a), 17 C.R.S. (1984), which prohibits the Department from issuing probationary licenses to drivers who have had their licenses administratively revoked under section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984). ¹ We reverse.

I

On January 12, 1985, Officer P. Newell of the Colorado Springs Police Department received a radio call to respond to the site of a one-car accident at a Colorado Springs address to assist a fellow officer. Upon his arrival, Officer Newell was advised by another officer that the driver of the vehicle, Sharon P. Bath (Bath), had been driving carelessly. When Officer Newell questioned Bath, he detected a strong odor of alcoholic beverage and noticed that she slurred her speech and that her eyes were bloodshot and watery. Bath failed to satisfactorily complete three roadside maneuvers and stated "you and I both know I'm drunk" and "I really did something wrong by drinking so much." Officer Newell then arrested Bath and obtained her consent to the administration of a chemical analysis of her blood. ²

Officer Newell drove Bath to a Colorado Springs hospital, where blood was drawn within one hour after the accident. The resulting analysis reflected a ratio of 0.240 grams of alcohol per hundred milliliters of blood. Based on these results, a notice of revocation was mailed to Bath by the Department on February 5, 1985.

On April 3, 1985, a Department hearing officer conducted a revocation hearing to determine whether Bath had driven a motor vehicle in violation of section 42-2-122.1, 17 C.R.S. (1984). ³ At the close of the hearing the hearing officer found that Bath's blood alcohol content was 0.15 or more grams of alcohol per hundred milliliters of blood when she was operating her automobile on January 12 and, accordingly, revoked her driver's license for a period of one year. Bath then requested that she be issued a probationary license. The hearing officer denied the request, observing that section 42-2-122.1(6)(a), 17 C.R.S. (1984), prohibits the issuance of a probationary license to a driver whose license has been revoked pursuant to section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984).

Bath appealed this decision to the district court. She asserted, inter alia, that the portion of section 42-2-122.1(6)(a) prohibiting the issuance of a probationary license to drivers whose licenses are revoked pursuant to section 42-2-122.1(1)(a)(I) on its face violates guarantees of equal protection of the law under the fourteenth amendment of the United States Constitution and article II, section 25 of the Colorado Constitution. Bath pointed out that while she may not obtain a probationary license, a person convicted of driving in violation of section 42-4-1202(1.5), 17 C.R.S. (1984), and, therefore, subject to the provisions of section 42-2-123(13)(a), 17 C.R.S. (1984), requiring the Department to suspend a driver's license in certain circumstances, may obtain a probationary license. ⁴ The district court concluded, inter alia, that the challenged portion of section 42-2-122.1(6)(a) violated equal protection standards, but that the offending language could be severed from the remainder of the statute. The district court affirmed the revocation order and remanded the case to the Department for determination of whether Bath was entitled to receive a probationary license.

II

The Department asserts that the district court erred in concluding that the provision in section 42-2-122.1(6)(a), 17 C.R.S. (1984), prohibiting the issuance of a probationary driver's license to drivers whose licenses are revoked under section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984), denies drivers such as Bath equal protection of law. We agree.

The equal protection guarantees of the United States and Colorado constitutions require like treatment of persons who are similarly situated. ⁵ Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988); New York City Transp. Auth. v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); Tassian v. People, 731 P.2d 672 (Colo.1987); Board of County Comm'rs v. Flickinger, 687 P.2d 975 (Colo.1984); People v. Marcy, 628 P.2d 69 (Colo.1981). In analyzing legislation challenged on equal protection grounds, a court must examine the purpose and effects of the statute and the nature of the right allegedly affected. Because equal protection of the law is denied only when a law has a "special impact on less than all the persons subject to its jurisdiction," Board of County Comm'rs v. Flickinger, 687 P.2d at 982 (quoting New York City Transit Auth. v. Beazer, 440 U.S. 568, 587-88, 99 S.Ct. 1355, 1366-67, 59 L.Ed.2d 587 (1979)), a threshold determination of whether persons allegedly subject to disparate treatment by governmental act are in fact similarly situated must be made in every equal protection case, see In re C.B., 740 P.2d 11 (Colo.1987); Board of County Comm'rs v. Flickinger, 687 P.2d at 982. If no such classification exists, the equal protection challenge must fail. See, e.g., In re C.B., 740 P.2d at 17-18; Board of County Comm'rs v. Flickinger, 687 P.2d at 982; Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980).

If such a classification does exist, the court must next determine what level of judicial scrutiny applies to the classification by examining the type of classification and the nature of the right affected. If a classification creates a suspect class ⁶ or interferes with the exercise of a fundamental right, ⁷ it is subject to strict judicial scrutiny and the government bears the burden of establishing that the classification is necessarily related to a compelling governmental interest. See, e.g., San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Tassian v. People, 731 P.2d at 674; Austin v. Litvak, 682 P.2d 41 (Colo.1984); Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo.1982); Heninger v. Charnes, 200 Colo. at 197, 613 P.2d at 887. Other legislative classifications, such as illegitimacy and gender, are subject to an intermediate level of judicial scrutiny requiring the government to establish a substantial relationship between the classification and an important governmental objective. Clark v. Jeter, 108 S.Ct. at 1910; Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981); Tassian v. People, 731 P.2d at 674; Austin v. Litvak, 682 P.2d at 49; R.McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).

A rational relationship standard of review is applied to legislative classifications not subject to strict or intermediate scrutiny. Lying v. International Union, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988); Austin v. Litvak, 682 P.2d at 49. Under this standard, the classification in question is presumed constitutional and the burden falls upon the challenging party to prove its unconstitutionality beyond a reasonable doubt. Lying v. International Union, 108 S.Ct. at 1184; Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo.1982); Lujan v. Colorado State Bd. of Educ., 649 P.2d at 1015; Zaba v. Motor Vehicle Div., 183 Colo. 335, 516 P.2d 634 (1973).

While we have not been completely consistent in our articulation of the rational relationship standard, see Austin v. Litvak, 682 P.2d at 50, the contours of this test are well established. Initially, the classification must be reasonable rather than arbitrary, Hurricane v. Kanover, Ltd., 651 P.2d 1218, 1222 (Colo.1982), or have some rational basis in fact, People v. Velasquez, 666 P.2d 567, 569 (Colo.1983), appeal dismissed, 465 U.S. 1001, 104 S.Ct. 989, 79 L.Ed.2d 223 (1984); Smith v. Charnes, 649 P.2d 1089, 1091 (Colo.1982); see also Tassian v. People, 731 P.2d at 675; Dawson v. Public Employees' Retirement Ass'n, 664 P.2d 702, 707 (Colo.1983). The classification must also bear a rational relationship to a legitimate state objective, Hurricane v. Kanover, Ltd., 651 P.2d at 1222, or be reasonably related to a legitimate governmental interest, Tassian v. People, 731 P.2d at 675; Smith v. Charnes, 649 P.2d at 1091.

The district court applied the rational relationship test to sections 42-2-122.1(6)(a) and 42-2-123(13)(a), 17 C.R.S. (1984), apparently assuming that these provisions subjected similarly situated drivers to disparate treatment because a driver whose license is revoked under the former section cannot receive a probationary license while a driver whose license is suspended under section 42-2-123 may receive such a license. However, these sections deal primarily with different classes of drivers and provide different sanctions for different kinds of behavior.

Section 42-2-122.1 contains numerous administrative provisions uniformly applicable to all persons who possess Colorado driver's licenses. A law enforcement officer who arrests a person for driving a motor vehicle with a blood alcohol content of 0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 or more grams of alcohol per two hundred ten liters of breath must forward to the Department a verified report of all information relevant to the administrative enforcement of license revocation under section 42-2-122.1, including a report of the results of any chemical tests which were...