Bolio v. Malloy, 1915

• Decision Date: 03 October 1967
• Docket Number: No. 1915,1915
• Citation: 234 A.2d 336,126 Vt. 424
• Court: Vermont Supreme Court
• Parties: In re Petition of Allen J. BOLIO, Jr. v. James E. MALLOY, Commissioner of Motor Vehicles.

Page 336

234 A.2d 336

126 Vt. 424

In re Petition of Allen J. BOLIO, Jr. v. James E. MALLOY, Commissioner of Motor Vehicles.

No. 1915.

Supreme Court of Vermont.

Oct. 3, 1967.

Stephen B. Martin, Barre, for petitioner.

James L. Oakes, Atty. Gen., for the State.

Before HOLDEN, C. J., and SHANGRAW, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The complainant has petitioned this Court for a writ of mandamus. The proceeding is directed against the commissioner of motor vehicles to compel that official to hold a hearing to determine whether the complainant is a proper person for the issuance of a motor vehicle operator's license.

The petitioner has been twice convicted of operating a motor vehicle in this state while under the influence of intoxicating liquor, in violation of the provisions of 23 V.S.A. § 1183. Following the first conviction on January 31, 1962, in the Montpelier Municipal Court, the petitioner's license to operate motor vehicles in this state was revoked for a period of one year, in accordance with the provisions of 23 V.S.A § 1185.

On April 6, 1963, the petitioner was convicted of a similar offense against the same statute by the Bennington Municipal Court. The complaint in the second conviction makes no allegation of the prior offense. The petitioner's license was again revoked on April 12, 1963.

After the expiration of a year the petitioner applied to the commissioner of motor vehicles for reinstatement of his operator's license. The commissioner has refused to hear the application until the expiration of six years from the second revocation. This petition for mandamus followed.

The pertinent sections of the Motor Vehicles Laws provide:

23 V.S.A. § 1183. Operating under influence of intoxicating liquor or drugs

A person shall not operate or attempt to operate a motor vehicle while under the influence of intoxicating liquor or drugs. On a first conviction, a person who violates a provision of this section shall be fined not less than $50.00 nor more than $500.00, or imprisoned not more than two years, or both. On each subsequent conviction, such person shall be imprisoned not less than two months nor more than two years and fined not more than $500.00.

§ 1185. Revocation of license for drunken driving

After being notified of the conviction of a person for having violated a provision of section 1183 of this title, the commissioner of motor vehicles shall forthwith revoke the license of such person, or revoke his right to operate a motor vehicle, as the case may be. A license shall not be issued to such person until the expiration of one year from the date of such revocation, and then only upon the presentation of due proof to the commissioner of motor vehicles that such person is a proper person to whom a license should be granted.

§ 1186. Reinstatement of license

A person whose license or right to operate a motor vehicle has been heretofore revoked by the commissioner of motor vehicles pursuant to the provisions of section 1185 of this title may make application for the issuance of a license on and after the expiration of one year from the date of such revocation, and such license may be issued pursuant to the provisions of section 1185.

§ 1187. Second and third convictions

Upon a second conviction a license shall not be issued untile the expiration of six years from the date of such revocation, and then only upon presentation of due proof to the commissioner of motor vehicles that such person is a proper person to whom a license should be issued. Upon a third conviction a license shall not be issued to the person so convicted.

The petitioner contends the licensing authority is required to consider the judgment of guilty, entered by the Bennington Municipal Court, as a first conviction in the absence of a specific allegation of the prior conviction in the prosecution of the second offense. Relying on this premise, he maintains he is entitled to a present hearing on his application and treated as a first offender under the provisions of §§ 1185 and 1186.

To support this position, the petitioner cites State v. Cameron (Feb. 7, 1967), 126 Vt. --, 227 A.2d 276, 279. In that instance the judge of the Franklin Municipal Court, acting on personal knowledge of two prior convictions, sentenced the respondent as a third offender under 23 V.S.A. § 674(a). We held the court could not impose the more severe penalty provided for a third offender unless the prior convictions were alleged and proved in the prosecution for the third offense. The opinion by Mr. Justice Keyser points out that if an accused is to be subjected to the sentence provided for a recidivist, he must have notice of the prosecution's intention to seek the higher penalty. This requirement is essential to enable the respondent to challenge the sufficiency of the record presented against him and his identity with the prior convictions. See also, Oyler v. Boles 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, 451.

The Cameron case was concerned exclusively with the sentence of the court upon the third conviction of the crime of operating after suspension. The action of the licensing authority and its power to revoke...