Leathers v. Cotton

• Decision Date: 26 February 1998
• Docket Number: No. 97-619,97-619
• Citation: Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (Ark. 1998)
• Parties: Timothy LEATHERS, * Appellant, v. William W. COTTON, Appellee.
• Court: Arkansas Supreme Court

Page 32

961 S.W.2d 32

332 Ark. 49

Timothy LEATHERS, ^*Appellant, v.William W. COTTON, Appellee.

No. 97-619.

Supreme Court of Arkansas.

Feb. 26, 1998.

Daniel S. Smith, Little Rock, for Appellant.

Ray Hodnett, Van Buren, for Appellee.

IMBER, Justice.

This case presents a question of statutory interpretation.It specifically concerns the effect of a final adjudication of a lesser-included DWI offense on the administrative suspension of a driver's license.

The undisputed facts are as follows.On October 26, 1994, Cotton was convicted of DWI first offense in Fort Smith Municipal Court.On October 13, 1996, Cotton was charged with DWI second offense in Van Buren Municipal Court.Pursuant to Ark.Code Ann. § 5-65-104(Repl.1997), Cotton's license was temporarily suspended by the Office of Driver Services of the Revenue Division of the Department of Finance & Administration, and Cotton subsequently exercised his right to an administrative hearing.Cotton, a sales manager for a distributing company, would lose his job without a driver's license or a permit.While he did not contest the suspension of his license, he did request a work permit due to hardship.Following a hearing on October 28, 1996, the hearing officer found that there had been a violation of Act 802 of 1995, and imposed second-offense sanctions, suspending Cotton's license for sixteen months, and denying the work permit "as it [was] more than DWI 1st offense within three years."

On November 14, 1996, Cotton filed a petition for de novo review in Sebastian County Circuit Court pursuant to section 5-65-104(c).On January 8, 1997, the Van Buren Municipal Court found Cotton guilty of DWI first offense.Given that the municipal court had acquitted him of DWI second offense, Cotton asserted that the trial court now had jurisdiction to issue a work permit in the administrative review proceeding.Following a hearing on the matter, the trial court entered an order finding that Cotton's acquittal on the DWI second-offense charge in municipal court had "turned this charge into a First Offense Driving While Intoxicated."The court further found that "[s]ince this is a First Offense Driving While Intoxicated case by finding of the Van Buren Municipal Court, the Office of Driver Control cannot suspend the Plaintiff's drivers license for sixteen (16) months."Accordingly, the trial court ordered DF & A to suspend Cotton's license for 120 days "for Driving While Intoxicated, First Offense, in accordance with the Judgment of the Van Buren Municipal Court."Because this time period had already expired given the effective date of suspension, October 28, 1996, the trial court ordered Cotton's license reinstated.DF & A brings the present appeal.

DF & A's sole argument for reversal is that the trial court erroneously interpreted section 5-65-104.Specifically, DF & A contends that the municipal court's acquittal on DWI second offense did not preclude it from considering the DWI first-offense conviction in calculating the total number of offenses for imposition of second-offense sanctions under section 5-65-104.

Administrative suspension or revocation of driver's licenses, which constitutes a remedial civil sanction, seePyron v. State, 330 Ark. 88, 953 S.W.2d 874(1997), is primarily governed by section 5-65-104.When DF & A initially suspends or revokes the driving privilege of a person arrested for DWI violating Ark.Code Ann. § 5-65-103(Repl.1997), "[t]he suspension or revocation shall be based on the number of previous offenses as follows:"

(A)(i) Suspension for one hundred twenty (120) days for the first offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.1%) or more by weight of alcohol in the person's blood, § 5-65-103;

* * *

(B)(i) Suspension for sixteen (16) months, during which no restricted permits may be issued, for a second offense of operating or being in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.1%) or more by weight of alcohol in the person's blood, § 5-65-103, within three years of the first offense.

Ark.Code Ann. § 5-65-104(a)(4)(A)-(B).In determining the number of previous offenses a person has in considering suspension or revocation, the Office of Driver Services is required to "consider as a previous offense:"

(A) Any convictions for offenses of operating or being in actual physical control of a motor vehicle while intoxicated ... under § 5-65-103 or refusing to submit to a chemical test under § 5-65-202 which occurred prior to July 1, 1996; and

(B) Any suspension or revocation of driving privileges for arrests for operating or being in actual physical control of a motor vehicle while intoxicated ... under § 5-65-103 or refusing to submit to a chemical test under § 5-65-202 occurring on or after July 1, 1996, where the person was not subsequently acquitted of the criminal charges.

Ark.Code Ann. § 5-65-104(a)(9)(A)-(B).If in a criminal case, a court of law renders any decision "arising from any violation of § 5-65-103," an acquittal "on the charges" will reverse the administrative suspension or revocation of the driver's license suspended or revoked.Ark.Code Ann. § 5-65-104(d)(2)(B).

The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature.Mountain Home Sch. Dist. v. T.M.J. Bldrs., 313 Ark. 661, 858 S.W.2d 74(1993).Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used.Id.The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.Id.

In determining the number of "previous offenses" on which to base its sanction, DF & A is clearly directed to include "[a]ny convictions " for offenses under section 5-65-103. Ark.Code Ann. § 5-65-104(a)(9)(A)(emphasis added).Under this provision, it is obvious that two separate convictions of DWI first offense, both violations of section 5-65-103, should be counted as two "previous offenses."However, the crux of this case is the effect, if any, of the municipal court's...