Lescher v. Florida Dept. of Highway Safety

• Decision Date: 03 July 2008
• Docket Number: No. SC07-32.,SC07-32.
• Citation: 985 So.2d 1078
• Parties: James LESCHER, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
• Court: Florida Supreme Court

985 So.2d 1078

James LESCHER, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.

No. SC07-32.

Supreme Court of Florida.

July 3, 2008.

Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, FL, for Petitioner.

Judson M. Chapman, General Counsel and Heather Rose Cramer, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Lake Worth, FL, for Respondent.

CANTERO, J.

In this case we consider whether a statutory amendment constitutes an ex post facto law. Florida law provides that after four convictions for driving under the influence (DUI), the defendant's driver's license shall be permanently revoked. After five years such drivers previously could apply for hardship licenses. The Legislature, however, recently amended the statute to remove that driver's license eligibility. The petitioner, who could have applied for a hardship license before the amendment, argues that the amendment constitutes an ex post facto law. Because the prohibition against ex post facto laws applies only to criminal punishments, however, and the provisions at issue do not constitute punishment, we conclude that the amendment is not an ex post facto law.

Below, we first explain the relevant factual, statutory, and procedural history of this case. Then we apply the test delineated in Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), to the question of whether driver's license revocation and the unavailability of a hardship license constitutes criminal punishment.

I. FACTS AND RELEVANT STATUTORY HISTORY

Lescher was convicted of DUI four times: in 1979, 1983, 1991, and 2000. Section 322.28(2)(e), Florida Statutes (2000), required that "[t]he court shall permanently revoke the driver's license or driving privilege of a person who has been convicted four times" for this offense. After his 2000 conviction, therefore, Lescher's license was permanently revoked.

Section 322.271(4), Florida Statutes (1997), formerly provided that drivers whose licenses had been permanently revoked under section 322.28(2)(e) could, after five years, petition for reinstatement of the "driving privilege."¹ A petitioner had to establish that he qualified. The Department of Highway Safety and Motor Vehicles (Department or DHSMV) then had the "discretion" to issue a "hardship license" with specific restrictions. See § 322.271(4), Fla. Stat. (1997).² In 1998— before Lescher's license was revoked—the Legislature amended this provision by eliminating the eligibility for hardship licenses for drivers with four DUI convictions. See 322.271(4), Fla. Stat. (Supp. 1998). However, in Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), we held invalid the session law containing the amendment because of a single-subject violation. In effect, our holding revived the pre-1998 law permitting hardship licenses. Shortly after our decision in Critchfield, however, the Legislature readopted the amendment.³ The net effect is that when Lescher's license was revoked, he could have applied for a hardship license after five years.

In August 2005, although five years had not yet elapsed since his license was revoked, Lescher petitioned for a hardship license. The Department denied the petition, concluding that the applicable statute was the one in effect at the time of his application. Under that statute, Lescher was not eligible for a hardship license.⁴

The circuit court denied Lescher's petition for a writ of certiorari. On review, the Fourth District Court of Appeal denied a petition as well, finding no ex post facto violation. See Lescher v. Dep't of Highway Safety & Motor Veh'ls, 946 So.2d 1140, 1142 (Fla. 4th DCA 2006). However, noting that the court had "a number" of similar petitions and "anticipat[ing] that other districts will also," the court certified the following question as one of great public importance:

Does the amendment to section 322.271(4), Florida Statutes, which eliminated hardship driver's licenses effective July 1, 2003, violate the prohibition against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?

Id. We have jurisdiction and granted review. See art. V, § 3(b)(4), Fla. Const; Lescher v. Dep't of Highway Safety & Motor Veh'ls, 949 So.2d 198 (Fla.2007) (granting review).

II. CIVIL PENALTY OR CRIMINAL PUNISHMENT?

Both the United States and Florida Constitutions prohibit ex post facto laws. See U.S. Const. art. I, § 10; art. I, § 10, Fla. Const. The United States Supreme Court has defined an ex post facto law as one that (a) operates retrospectively, and (b) "make[s] innocent acts criminal, alter[s] the nature of the offense, or increase[s] the punishment." Collins v. Youngblood, 497 U.S. 37, 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); accord Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ("After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of `disadvantage,' ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable."). Thus, the prohibition on ex post facto laws applies only to criminal or penal provisions. See Westerheide v. State, 831 So.2d 93, 99 (2002). The answer to the certified question, therefore, depends on whether the unavailability of a hardship license to a driver whose license was revoked after four DUI convictions is a civil remedy or criminal punishment. "Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Hudson, 522 U.S. at 99, 118 S.Ct. 488. Under Hudson, the first step in the analysis is to ascertain the legislature's intent, and then to determine the effect of the statute under the following seven factors:

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment — retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

Id. at 99-100, 118 S.Ct. 488 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)); see Goad v. Fla. Dep't of Corrections, 845 So.2d 880 (Fla.2003) (concluding under a Hudson analysis that sections of the Florida Civil Restitution Lien and Crime Victims' Remedy Act did not operate as a criminal punishment). We now apply this analysis to the DUI permanent revocation provision, section 322.28(2)(e), and the hardship license provision, section 322.271(4).

A. LEGISLATIVE INTENT

As stated above, in determining the nature of these provisions, the first question is whether the Legislature indicated whether these statutes were civil or criminal. See Hudson, 522 U.S. at 99, 118 S.Ct. 488. Chapter 322, Florida Statutes, regulates driver's licenses, and the Legislature has charged the Department with the chapter's administration and enforcement. The Legislature plainly stated its intent:

It is declared to be the legislative intent to:

(1) Provide maximum safety for all persons who travel or otherwise use the public highways of the state.

(2) Deny the privilege of operating motor vehicles on public highways to persons who, by their conduct and record, have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state and the orders of the state courts and administrative agencies.

(3) Discourage repetition of criminal action by individuals against the peace and dignity of the state, its political subdivisions, and its municipalities and impose increased and added deprivation of the privilege of operating motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.

§ 322.263, Fla. Stat. (2005). The Legislature further provided that "[t]his chapter [322] shall be liberally construed to the end that the greatest force and effect may be given to its provisions for the promotion of public safety." § 322.42, Fla. Stat. (2005).

It is apparent that in chapter 322 the Legislature intended not to punish but to protect the public through a regulatory regime governing driver's licenses. This intent controls absent the "clearest of proof" on the face of the statute belying it. See Hudson, 522 U.S. at 100, 118 S.Ct. 488 ("`[O]nly the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." (quoting United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980))); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (stating that "only the clearest proof could suffice to establish the unconstitutionality of a [civil] statute" as criminally punitive and that "[j]udicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed"); Westerheide, 831 So.2d at 100 ("While `the civil label is not always dispositive,' the Legislature's stated intent should only be rejected where the challenging party presents `the clearest proof' that `the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' that the proceeding be civil." (quoting Allen v. Illinois, 478 U.S. 364, 369, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986))).

B. APPLYING THE HUDSON FACTORS

To determine whether the "clearest of proof" negates the Legislature...