Heninger v. Charnes

• Decision Date: 30 June 1980
• Docket Number: No. 80SA77,80SA77
• Parties: Dexter E. HENINGER, Plaintiff-Appellant, v. Alan N. CHARNES, as Director, Department of Revenue, Motor Vehicle Division, State of Colorado, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 884

613 P.2d 884

200 Colo. 194

Dexter E. HENINGER, Plaintiff-Appellant, v. Alan N. CHARNES, as Director, Department of Revenue, Motor

Vehicle Division, State of Colorado, Defendant-Appellee.

No. 80SA77.

Supreme Court of Colorado, En Banc.

June 30, 1980.

Daniel D. Plattner, Denver, for plaintiff-appellant.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Terre Lee Rushton, Asst. Atty. Gen., Denver, for defendant-appellee.

QUINN, Justice.

The Department of Revenue (Department) revoked the driver's license of Dexter E. Heninger (Appellant), and the order of revocation was affirmed by the district court in a proceeding for judicial review under section 24-4-106, C.R.S. 1973. This appeal raises constitutional issues relating to the license-revocation provisions of sections 42-2-122(1)(i) and 42-2-203, C.R.S. 1973. We affirm the judgment of the district court.

The facts are not in dispute. Prior to the revocation of his driver's license, the appellant had accumulated an extensive record of alcohol-related traffic offenses. He was convicted of driving while under the influence of intoxicating liquor in 1970. On September 2, 1975, he sustained a conviction for driving on March 13, 1975, while his ability was impaired. On March 11, 1976, he sustained another conviction for driving under the influence on October 3, 1975. Thereafter, on June 8, 1977, he was again convicted for driving on January 2, 1976, while under the influence. After having been duly served with notice, appellant appeared with counsel at a hearing before the Department on September 3, 1977, and admitted the prior convictions. Two orders of revocation were entered by the Department. The first order revoked the appellant's operator's license for a period of at least two years based on his three prior convictions for operating a motor vehicle while under the influence. Section 42-2-122(1)(i), C.R.S. 1973. ¹ The second order of revocation was for a period of at least five years and was based on the appellant's three convictions of driving while under the influence or while impaired within a seven-year period. Section 42-2-203, C.R.S. 1973. ² Appellant claims that the mandatory revocation provisions of sections 42-2-122(1)(i) and 42-2-203, C.R.S. 1973, violate equal protection of the laws, due process of law, and the prohibition against cruel and unusual punishment under the United States and Colorado Constitutions.

I. EQUAL PROTECTION OF THE LAWS

The appellant raises several claims with respect to equal protection of the laws under the Fourteenth Amendment to the United States Constitution and Article II, Section 25 of the Colorado Constitution. ³ Initially, he claims that the revocation procedures authorized by sections 42-2-122(1)(i) and 42-2-203, C.R.S. 1973, for alcohol-related driving offenses implicate fundamental rights the right to drive an automobile and the right to travel interstate. Appellant contends that since a fundamental right is affected by the statutory revocation procedures, the proper standard for equal protection analysis is that of strict judicial scrutiny. Under this standard the state has the burden of establishing that the statutory revocation scheme is necessarily related to a compelling governmental interest. E. g., San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Bernzen v. Boulder, 186 Colo. 81, 525 P.2d 416 (1974); Jarmel v. Putnam, 179 Colo. 215, 499 P.2d 603 (1972). Appellant maintains that the statutory scheme cannot satisfy this stringent constitutional standard. Alternatively, appellant argues that even if a fundamental right is not involved, the statutory revocation procedures, by discriminating against alcoholics and problem drinkers, fail to satisfy even the rational relationship test of equal protection analysis. Under this latter standard a statutory classification will be upheld if it has a rational basis and is reasonably related to a legitimate governmental purpose. ⁴ E. g. San Antonio School District v. Rodriguez, supra ; Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Mosgrove v. Town of Federal Heights, 190 Colo. 1, 543 P.2d 715 (1975); Gates Rubber Co. v. South Suburban Metro. Recreation Dist., 183 Colo. 222, 516 P.2d 436 (1973).

With respect the first prong of appellant's strict scrutiny argument the right to drive as a fundamental right we have held in several cases that the right to drive an automobile upon the public highways of this state does not enjoy the selective status of fundamentality. Fuhrer v. Dept. of Motor Vehicles, 197 Colo. 325, 592 P.2d 402 (1979); People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971); Love v. Bell, 171 Colo. 27, 465 P.2d 118 (1970); People v. Nothaus, 147 Colo. 210, 363 P.2d 180 (1961). The clear import of these cases is that the issuance of a driver's license does not confer upon the licensee a right that is independently entitled to protection against any and all governmental interference or restriction.

The second prong of appellant's claim for strict scrutiny is that the revocation of his license implicates his right to travel interstate. While the right to travel interstate is without question a fundamental right under the United States Constitution, Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the critical inquiry in this case is whether the revocation of appellant's license burdens this fundamental right. We hold that it does not.

Any incidental disadvantage in appellant's travel options is directly attributable to his voluntary and repeated violations of the traffic laws. More importantly, such incidental disadvantage is of no constitutional significance to his basic right to travel interstate. The revocation of appellant's license to drive in no manner impairs his freedom to move from state to state. He has been neither locked into nor fenced out of the state of Colorado and is as free to come and go at will as he was before the revocation.

We also find no merit in appellant's remaining equal protection argument: the statutory revocation procedures discriminate against alcoholics and problem drinkers and bear no reasonable relationship to a legitimate governmental interest. The provisions of sections 42-2-122(1)(i) and 42-2-203, C.R.S. 1973, do not create a statutory classification of alcoholics and problem drinkers with respect to traffic offenses. The traffic laws and the revocation procedures are aimed at all drivers who operate a motor vehicle while under the influence of alcohol or while their ability is impaired, regardless of their status as alcoholics or problem drinkers. See sections 42-4-1202(1)(a) and (b), 42-2-122(1)(g) and (i), 42-2-202(2)(a)(I), C.R.S. 1973. All persons, in other words, are prohibited from operating a motor vehicle while intoxicated or while their ability is impaired, and all persons are equally subject to revocation of their licenses upon requisite proof that the statutory bases have been satisfied.

To the extent that one might consider as a classification the categorization of alcohol-related driving offenses, sections 42-2-122(1)(g) and (i), 42-2-202(2)(a)(I), C.R.S. 1973, such classification is reasonably related to the expressed governmental interest of providing "maximum safety for all persons who travel or otherwise use the public highway . . . ." Section 42-2-201(1) (a), C.R.S. 1973; Fuhrer v. Dept. of Motor Vehicles, supra. The alcoholic or problem drinker, however, suffers no more restrictions on his driver's license by reason of this classification than does any other licensee. Accordingly, the appellant's equal protection arguments are rejected.

II. DUE PROCESS OF LAW

The appellant's due process argument is directed only against section 42-2-203, C.R.S. 1973, which relates to the Department's authority to revoke the driver's license of a habitual offender. Section 42-2-202(2)(a)(I), C.R.S. 1973, defines a habitual offender as any person who has accumulated during a seven-year period three or more separate and distinct convictions arising out of separate acts for operating a motor vehicle while under the influence of intoxicating liquor or while one's ability is impaired.

The appellant argues that section 42-2-203, C.R.S. 1973, as applied to him, violates due process of law because (1) it bears no reasonable relationship to a legitimate governmental purpose, and (2) it fails to provide for a probationary license upon evidence of mitigating circumstances. The appellant's initial claim of unconstitutional application is based on his testimony at the revocation hearing that he was then a reformed alcoholic and had been on monitored Antabuse since January 1976.

The doctrine of unconstitutional application requires a demonstration that the application of a statute to the appellant under the circumstances of this case would directly interfere with his rights arising under the federal or state constitution. E. g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Cramp v. Board of Public Institutions, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). While one's interest in maintaining a driver's license is an interest that requires a due process hearing before termination, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the right to drive an automobile upon the public highways is not absolute. Repeatedly, we have recognized the legislature's prerogative to subject a licensed driver to reasonable governmental restrictions in the interest of public health, safety and welfare. E. g., Fuhrer v. Dept. of Motor Vehicles, supra ; People v. Brown, supra ; Love v. Bell, supra ; People v....