Cook v. Oberly

• Court: Court of Chancery of Delaware
• Writing for the Court: LONGOBARDI
• Citation: 459 A.2d 535
• Parties: Inez L. COOK, Plaintiff, v. Charles M. OBERLY, III, Attorney General of the State of Delaware, Henry James Decker, Secretary of the Department of Public Safety of the State of Delaware, and Robert J. Voshell, Director of the Division of Motor Vehicles, Defendants. . Submitted:
• Decision Date: 16 March 1983

Page 535

459 A.2d 535 Inez L. COOK, Plaintiff,
v.
Charles M. OBERLY, III, Attorney General of the State of
Delaware, Henry James Decker, Secretary of the Department of
Public Safety of the State of Delaware, and Robert J.
Voshell, Director of the Division of Motor Vehicles, Defendants. Court of Chancery of Delaware,
New Castle County. Submitted: March 16, 1983.
Decided: March 31, 1983.

Page 537

Upon Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction. Denied.

Arlen Mekler (argued) and E. Martin Knepper, Wilmington, for plaintiff.

James J. Hanley, Dept. of Justice, Wilmington, for defendants.

LONGOBARDI, Vice Chancellor.

The Plaintiff, Inez L. Cook, was arrested on February 19, 1983, and charged with driving under the influence of alcohol, a criminal offense under 21 Del.C. § 4177. The arresting officer, pursuant to 21 Del.C. § 2742(e), seized Ms. Cook's license and issued to her a temporary license which was effective for fifteen days. She was informed that section 2742(d) gave her the right to request a hearing before the Division of Motor Vehicles at which she could contest the revocation of her license. Under sections 2742(b) and (c), an individual's license may be revoked following the police officer's certification that there existed

Page 538

probable cause to believe section 4177 had been violated. There was such a certification in this case. However, section 2742(d) specifically provides, "No revocation under § 2742(b) or (c) is effective until the secretary or a police officer or other person ... notifies the person of revocation and allows the person a 15 day period to request ... a hearing as herein provided."

If a hearing is requested, revocation is not effective until the final decision of the hearing officer results in a decision adverse to the license. In other words, the licensee retains his driving privileges until an adverse ruling results from the hearing. If no request for a hearing is filed in writing by the individual within the fifteen day period following seizure of his license, revocation becomes effective immediately thereafter. Section 2744 provides that an adverse decision may be appealed by the licensee to Superior Court although this appeal does not stay revocation of the license.

Ms. Cook did not request a hearing within the fifteen day period. Her license, therefore, will apparently be revoked for a three month period under section 2742(c). The three month suspension is the penalty for the first time offender and is clearly a civil penalty. See Villa v. State, Del.Supr., 456 A.2d 1229, Moore, J. (1983).

Plaintiff seeks an order restraining the Department of Public Safety, the Division of Motor Vehicles and the Attorney General's Office from revoking her license. She also asks for a preliminary injunction prohibiting any further enforcement of 21 Del.C. § 2742. The crux of her claim is that the civil penalty of revocation under section 2742 violates the Fourteenth Amendment guarantee of due process. First, she insists, that revocation based on the arresting officer's certification is unconstitutional. It amounts, in her view, to an immediate deprivation of her right to drive without a prior hearing which, she insists, is violative of due process. Next, Plaintiff claims that it is unconstitutional to require her to retain counsel and pursue a revocation hearing in order to recover a right that cannot be legitimately taken without a pre-revocation hearing. She claims that the State has unconstitutionally shifted the burden of proof upon her. She also claims that her license is initially revoked based on the belief of an interested party, the police officer, and not by an impartial fact finder. Plaintiff contends that the provisions of the civil statute provide for the possibility of revocation even if she ultimately is not convicted under the criminal statute. She contends such action amounts to a denial of due process.

It is clear that if a constitutional construction of a statute is possible, it should be followed. Atlantis I Condominium Ass'n v. Bryson, Del.Supr., 403 A.2d 711, 714 (1979). Moreover, a party challenging a statute as unconstitutional has the burden of rebutting the presumption of constitutionality. Wilmington Med. Ctr., Inc. v. Bradford, Del.Supr., 382 A.2d 1338, 1342 (1978). In the current case, 21 Del.C. § 2742 is presumed to comply with the requirements of due process unless and until the Plaintiff can demonstrate that the statute cannot be read in a manner consistent with the necessary constitutional criteria.

Due process essentially requires that an individual be given a full and fair hearing before an impartial tribunal at a meaningful time and in a meaningful manner. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); West Penn Power Company v. Train, 522 F.2d 302, 312 (3rd Cir.1975). It is not a technical notion with a fixed content but a flexible concept which calls for such procedural protections as the situation demands. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

There are traditionally three factors which are considered when examining the constitutional sufficiency of governmental procedures. They are the private interest affected by the official action, the risk of erroneous deprivation of the interest through the procedures used and the value or necessity for additional safeguards, and

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the government's interests and purpose in promulgating the statute. Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S.Ct. 1011, 1018-22, 25 L.Ed.2d 287; Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18; Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (1979).

The...