Maas v. Dept. of Commerce and Regulation
| Decision Date | 23 April 2003 |
| Docket Number | No. 22516.,22516. |
| Citation | 661 N.W.2d 726,2003 SD 48 |
| Parties | Lauw Marcus MAAS, Appellant, v. DEPARTMENT OF COMMERCE AND REGULATION, Appellee. |
| Court | South Dakota Supreme Court |
Patrick M. Ginsbach of Farrell, Farrell and Ginsbach, Sioux Falls, South Dakota, Attorney for appellant.
Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.
[¶ 1.] Lauw Marcus Maas appeals from a one-year revocation of his drivers license by the Department of Commerce and Regulation (Department). The Department revoked his license because of a second offense DUI conviction. Maas argues that the Department, and the circuit court on appeal, applied the wrong look-back window in which prior DUI convictions can be considered to extend the length of a revocation. We affirm the Department's revocation under SDCL 32-12-52.1, and its use of the ten-year look-back window in SDCL 32-23-4.1.
[¶ 2.] Maas was convicted of DUI in 1993. He was later convicted of DUI in 2001. However, the 2001 DUI was not specifically "charged" as a "second offense" under SDCL 32-23-3 and 32-23-4.2.1 Moreover, for reasons not reflected in the record, the sentencing court only suspended Mass's license for thirty days on the 2001 conviction,2 even though SDCL 32-23-3 required the court to revoke for one year. SDCL 32-23-3, Supra n. 1; Matter of Revocation of Driver License of Fischer, 395 N.W.2d 598 (S.D.1986).
[¶ 3.] The Department, however, has independent authority to revoke driving privileges. Fischer, supra. Therefore, the Department notified Maas that it was revoking his license for the mandatory one year period. The Department's notice indicated that it had instituted the revocation proceeding under SDCL 32-12-52.1. That statute required the Department to revoke the license to the extent that the court "failed to invoke the mandatory" one-year revocation required by SDCL 32-23-3.
[¶ 4.] Maas objected to the one-year license revocation and requested a hearing before a hearing examiner.3 The hearing examiner issued a proposed decision concluding that the Department could only consider prior DUI convictions that occurred within four years of the 2001 offense. The hearing examiner arrived at that conclusion because she applied the four-year look-back window in SDCL 32-12-49, a statute different than SDCL 32-12-52.1, the statute that the Department used to impose the revocation.
[¶ 5.] The Department rejected the hearing examiner's proposed decision. The Department concluded that it was not restricted to the four-year look-back window in SDCL 32-12-49 because it had revoked pursuant to SDCL 32-12-52.1. The Department also concluded that under SDCL 32-12-52.1 (and SDCL 32-23-4.1), it was required to consider DUI convictions occurring within ten years of the 2001 offense.
[¶ 6.] Maas appealed the Department's decision to circuit court. The circuit court affirmed the Department. The circuit court held that the ten-year statutes (SDCL 32-23-4.1 and 32-12-52.1) specifically applied to DUIs, and because they were specific, they prevailed over the general four-year statute (SDCL 32-12-49), which does not specifically refer to DUIs.
[¶ 7.] Maas appeals raising two issues:
STANDARD OF REVIEW
[¶ 8.] We review this administrative ruling under our well settled standard of review.
The Court reviews agency findings in the same manner required of the circuit court when reviewing a decision from an administrative agency. This Court reviews findings of fact under the clearly erroneous standard, whereas questions of law are reviewed under the de novo standard.
West Central Education Association v. West Central School Dist., 2002 SD 163, ¶ 10, 655 N.W.2d 916, 919 (further citations omitted). This is a case of statutory interpretation. We review statutory interpretation de novo. Arends v. Dacotah Cement, 2002 SD 57, ¶ 11, 645 N.W.2d 583, 587.
[¶ 9.] 1. The Department may consider convictions that are more than four years old when revoking driving privileges for prior DUI convictions under SDCL 32-12-52.1.
[¶ 10.] This appeal highlights a difference in SDCL 32-12-49 and 32-12-52.1, the two statutes that authorize the Department to revoke drivers licenses for DUI convictions. SDCL 32-12-49 is the general statute. It applies to any conduct that may authorize the Department to revoke a drivers license. Although that statute does not contain any reference to DUI convictions, subsection (1) is applicable to DUIs by implication because it permits revocations whenever there is a conviction for any offense that requires a "mandatory revocation." If SDCL 32-12-49 is applied to DUIs, the Department may only consider prior convictions occurring within four years of the current violation. SDCL 32-12-49 provides in relevant part:
(emphasis added).
[¶ 11.] SDCL 32-12-52.1, however, specifically applies to DUIs, and it authorizes the Department to revoke a drivers license "to the extent that the driver license or privileges should have been revoked [by the trial court under] the mandatory [revocation] provisions of SDCL 32-23-2 to 4." This authority, under SDCL 32-12-52.1, includes the power to increase a thirty-day revocation to one year where the defendant was not charged by the prosecutor or sentenced by the court as a second offender in the criminal proceeding. Fischer, 395 N.W.2d 598. SDCL 32-12-52.1 provides:
The Department of Commerce and Regulation shall revoke the driver license or driving privilege of any driver upon receiving notice of that driver's conviction for a violation of the provisions of § 32-23-1 to the extent that the driver license or privileges should have been revoked, if the judgment and sentence of the trial court failed to invoke the mandatory provisions of §§ 32-23-2 to 32-23-4, inclusive, or the driver had been charged and convicted consistent with the records of the Department of Commerce and Regulation.
SDCL 32-12-52.1 (emphasis added). To determine "the extent that the driver license or privileges should have been revoked" by the court (and therefore by the Department), SDCL 32-23-4.1 specifically permits consideration of prior DUI convictions occurring within ten years of the current violation.
No previous conviction for, or plea of guilty to, a violation of § 32-23-1 occurring more than ten years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense. However, any period of time during which the defendant was incarcerated for a previous violation may not be included when calculating if the time period provided in this section has elapsed.
SDCL 32-23-4.1 (emphasis added).4
[¶ 12.] Although Maas' license was revoked under these latter statutes, he argues that the ten-year look-back provision of SDCL 32-23-4.1 cannot be used in conjunction with SDCL 32-12-52.1 to increase his 2001 revocation because his 2001 offense was not "charged" as a "second offense." Maas reasons that because he was not "charged" as a second offender, he could not have been sentenced as a second offender by the court. Maas concludes that if the court could not have sentenced him as a second offender using the ten-year look-back window, the Department is equally limited. Maas points out that SDCL 32-12-52.1 only permits Departmental revocation "to the extent that the driver license or privileges should have been revoked" by the court. However, Maas's entire argument is incorrectly premised on the assumption that absent a formal charge of "second offense" DUI, the trial court (and therefore the Department) are precluded from imposing a one-year revocation on the second, but uncharged DUI offense.5 In fact, we reached the opposite conclusion in Fischer, 395 N.W.2d 598.
[¶ 13.] Like the case before us now, Fischer involved a second DUI that was not formally "charged" or "sentenced" as a "second offense." Consequently, the "judgment and sentence of the trial court failed to invoke the mandatory [1 year revocation] provisions." Id. at 600. Later, the Department notified Fischer that it was revoking his driver's license under SDCL 32-12-52.1 for the mandatory one-year period. In considering the legality of the Department's action under SDCL 32-12-52.1,6 we noted that it was unimportant whether the trial court was aware that Fischer was being afforded an opportunity to plead to a second offense as if it were a first offense DUI. We recognized that the failure to correctly sentence a subsequent offense can occur as a result of judicial leniency, the state's attorneys exercise of prosecutorial discretion, or perhaps inattention to a defendant's record. Id. at 600, 603.
[¶ 14.] We concluded that when such judicial leniency or prosecutorial oversight occurs, the Department is authorized to commence a separate and distinct civil proceeding to revoke under SDCL 32-12-52.1. We specifically stated that in those civil proceedings, the Department has authority to act where...
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