Carpenter v. Vermont Dept. of Motor Vehicles

Decision Date06 September 1983
Docket NumberNo. 82-342,82-342
PartiesPaul W. CARPENTER v. VERMONT DEPARTMENT OF MOTOR VEHICLES, William H. Conway, Commissioner.
CourtVermont Supreme Court

Blais & Cain, Burlington, for plaintiff-appellant.

John J. Easton, Jr., Atty. Gen., and Robert C. Schwartz and Andrew M. Eschen, Asst. Attys. Gen., Montpelier, for defendants-appellees.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

HILL, Justice.

Pursuant to 23 V.S.A. § 1205(f), the commissioner of motor vehicles (commissioner) revoked plaintiff's operator's license for a six-year period, as a result of three alleged "refusals" to submit to breath tests. Following the receipt of the revocation notice, plaintiff instituted this action in superior court to challenge the revocation. V.R.C.P. 75. There being no dispute as to the facts, both the commissioner and plaintiff moved for summary judgment. V.R.C.P. 56. After reviewing the submitted memoranda, affidavits and oral arguments, the superior court granted the commissioner's motion, and plaintiff filed a timely notice of appeal. We affirm.

Prior to August 23, 1981, plaintiff was twice convicted of driving while under the influence of intoxicating liquor (DUI), 23 V.S.A. § 1201(a)(2), on July 8, 1975, and September 21, 1979. In both instances, plaintiff submitted to breath tests when requested to do so by police officers. On August 23, 1981, plaintiff was stopped by an officer of the Vergennes Police Department on suspicion of driving while under the influence. When asked to submit to a preliminary alcohol field test, § 1202(b), he declined. Plaintiff was then taken to the Vergennes Police Station, where he was informed of his Miranda rights, and his rights under the Implied Consent Statute, 23 V.S.A. § 1202. In addition, he was told that his refusal to submit to a breath test could result in the loss of his Vermont operator's license for a period of one to six years, depending on his prior record. § 1205. After several unsuccessful attempts to contact his attorney, plaintiff was advised of his right to contact a public defender, but he declined the opportunity and persisted in his refusal to submit to a breath test.

In accordance with 23 V.S.A. § 1205(a), a subsequent "reasonableness hearing" was held in the district court to determine whether the facts and circumstances surrounding the August 23 stop provided a reasonable basis for the officer's request to submit to a breath test. The district court concluded that the police officer's request was reasonable. The court also noted that this appeared to be plaintiff's first "refusal" to submit to a breath test. As required by statute, the district court's findings, conclusions and order were then sent to the commissioner for license revocation processing. 23 V.S.A. § 1205.

The statutory procedure for revoking the license of a driver who refuses to submit to a breath test is set forth in § 1205. Once the commissioner receives the judicial determination that the officer's request to submit to a breath test was reasonable, the statute requires him to revoke the driver's license for a period of time fixed by the number of "refusals" in the driver's record. In this regard, however, § 1205(j) provides that "a previous conviction for a violation of section 1201, shall be considered a previous refusal unless there was also a refusal at the incident which resulted in a conviction." That is, a prior conviction under § 1201 is deemed to be a refusal for the purposes of § 1205.

Guided by the rule of computation in § 1205(j), the commissioner determined that plaintiff's refusal, admittedly his first, constituted a "third refusal" for purposes of license revocation, since plaintiff had two prior DUI convictions. When faced with a third refusal, 23 V.S.A. § 1205(f) mandates that "[t]he commissioner shall revoke a person's operating license, or nonresident operating privilege or the privilege of an unlicensed operator to operate a motor vehicle for six years." Accordingly, the commissioner revoked plaintiff's operator's license for six years.

On appeal, plaintiff briefs three exceptions for our consideration: first, whether the commissioner, by "retrospectively" applying 23 V.S.A. § 1205(j) to DUI convictions occurring prior to the statute's effective date, July 1, 1981, arbitrarily and capriciously denied plaintiff his constitutional right to due process of law; * second, whether the commissioner exceeded his authority by suspending plaintiff's operator's license for a period of time not supported by a judicial determination; and third, whether the arresting officer had a duty to inform plaintiff of the impact of the newly enacted legislation with respect to his driving record. The exceptions will be taken in order.

Plaintiff concedes at the outset that the legislature has the power to enact a law such as § 1205(j) which would operate prospectively from its effective date. His challenge is solely directed to the constitutional validity of a retrospective application of the statute. He correctly points out that subsection (j) is not expressly limited to those DUI convictions occurring after the effective date of the statute, nor does it contain any language contemplating prior convictions. Plaintiff then cites those decisions of this Court which have held that "a statute should not be construed to act retrospectively ... unless its language is so clear as to admit of no other construction," United States v. United States Fidelity & Guaranty Co., 80 Vt. 84, 97, 66 A. 809, 814 (1907); see also City of Montpelier v. Senter, 72 Vt. 112, 113, 47 A. 392, 393 (1900), and insists that it is unconstitutional to apply "retrospectively" § 1205(j) to his prior DUI convictions, since such an interpretation would attach a new disability to prior convictions. We disagree.

The validity of plaintiff's argument hinges on whether the six-year revocation constituted a retrospective application of 23 V.S.A. § 1205(j). Although there is a dearth of authority within this jurisdiction as to what constitutes retrospective legislation, the Supreme Court of Missouri has provided a logical and persuasive treatment of the issue:

" 'Retroactive' or 'retrospective' laws are generally defined, from a legal viewpoint, as those which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past." But it has been held specifically that a "statute is not retrospective because it merely relates to prior facts or transactions but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of a person for the purpose of its operation." It is said to be retroactive "only when it is applied to rights acquired prior to its enactment."

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