Matheson v. Secretary of State
| Decision Date | 29 August 1988 |
| Docket Number | Docket No. 100263 |
| Parties | Mark MATHESON, Petitioner-Appellee, v. SECRETARY OF STATE, State of Michigan, Respondent-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Zabel, Quail & Ryan, P.C. by Stephen M. Ryan, Birmingham, for petitioner-appellee.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Robert J. Eisenberg and Errol R. Dargin, Asst. Attys. Gen., for respondent-appellant.
Before HOLBROOK, P.J., and MacKENZIE and BAGULEY, * JJ.
Respondent appeals as of right from a circuit court order directing respondent to obey an order of the 48th District Court which requires respondent to issue petitioner a restricted driver's license in connection with his 1986 plea-based conviction for driving under the influence of liquor (OUIL), M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1). We reverse.
In 1981, petitioner pled guilty to OUIL in 54-B District Court. He did not appeal that conviction. In 1985, petitioner was arrested and charged with OUIL, second offense. During the proceedings in 48th District Court for this offense, petitioner collaterally attacked his 1981 conviction as constitutionally infirm. The district court reviewed the transcript of petitioner's 1981 guilty plea and concluded that the 54-B District Court had not complied with DCR 1963, 785 and that petitioner had not been advised of his rights as required by People v. Jaworski, 387 Mich. 21, 26, 194 N.W.2d 868 (1972). Petitioner on October 6, 1986, pled guilty to OUIL, first offense, under M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1). The 48th District Court subsequently issued an order declaring the 1981 OUIL conviction infirm, and directing respondent to issue a restricted driver's license to petitioner.
Respondent disregarded the order and revoked petitioner's driving privileges on the authority of M.C.L. Sec. 257.303; M.S.A. Sec. 9.2003, which provides in pertinent part:
"(2) Upon receipt of the appropriate records of conviction, the secretary of state shall revoke the operator's or chauffeur's license of a person having any of the following convictions ...:
* * *
* * * "(c) Two convictions under section 625(1) [MCL 257.625(1); MSA 9.2325(1) ] ... within 7 years.
Petitioner commenced the instant circuit court action by filing a petition for order to show cause and to enforce the district court order. Following a hearing, the circuit court ordered respondent to honor the district court order and to restore petitioner's restricted driving privileges.
On appeal, respondent contends that M.C.L. Sec. 257.303(2) and (3); M.S.A. Sec. 9.2003(2) and (3), quoted above, empowered the Secretary of State to revoke petitioner's license notwithstanding the district court's order to issue a restricted license. We agree. The duty of the courts is to interpret the statutes as found. A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. Courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Ordinary words are to be given their plain and ordinary meaning. Winiecki v. Wolf, 147 Mich.App. 742, 383 N.W.2d 119 (1985). The use of the word "shall" in the statute instead of "may" indicates that revocation by the Secretary of State is mandatory, rather than discretionary. Law Dep't Employees Union v. City of Flint, 64 Mich.App. 359, 368, 235 N.W.2d 783 (1975).
Clearly, under M.C.L. Sec. 257.303(2)(c); M.S.A. Sec. 9.2003(2)(c), the Secretary of State must revoke a driver's license when it receives notice of a second OUIL conviction under M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1) within seven years. The plain language of M.C.L. Sec. 257.303(3); M.S.A. Sec. 9.2003(3) also makes it clear that this is true regardless of any court order which accompanies that second conviction. The language of that subsection gives the Secretary of State authority to disregard a court order which accompanies an OUIL conviction under M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. Cf. People v. Dunn, 104 Mich.App. 419, 304 N.W.2d 856 (1981), discussing Sec. 303 prior to the amendment adding subsection (3).
It is undisputed that petitioner had accumulated two convictions for OUIL under M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1), thus triggering the Sec. 303(2)(c) revocation provision. It is also undisputed that petitioner's 1981 conviction was determined upon collateral attack to be constitutionally infirm. Thus, the next issue to be resolved is whether an OUIL conviction, determined upon collateral attack to be constitutionally infirm, can form the basis for license revocation pursuant to Sec. 303(2)(c). We conclude that it can.
Michigan recognizes the use of collateral attack to prevent the consideration of an infirm conviction for purposes of sentence enhancement. See, e.g., People v. Moore, 391 Mich. 426, 442, 216 N.W.2d 770 (1974). A trial court may also reduce to a lesser crime a charge based on infirm prior convictions. In People v. Kanouse, 131 Mich.App. 363, 346 N.W.2d 101 (1984), modified 421 Mich 855 (1985), this Court noted that an infirm prior OUIL conviction could not be used for enhancement purposes to convict a respondent under the habitual OUIL offender statute. Id., p. 369, 346 N.W.2d 101. Similarly, in People v. Stratton, 148 Mich.App. 70, 384 N.W.2d 83 (1985), this Court held that the failure to advise a respondent of his right to counsel at a guilty plea proceeding rendered his prior OUIL misdemeanor conviction infirm for purposes of charging him with OUIL, third offense, at a later date. Id., p. 80, 384 N.W.2d 83. In People v. Haker, 158 Mich.App. 570, 405 N.W.2d 204 (1987), this Court declared a respondent's plea-based conviction for OUIL infirm for use as a predicate offense in an information charging him as an habitual offender where he was not advised of his Jaworski rights at the time of the prior plea. Id., 387 Mich. at p. 574, 194 N.W.2d 868.
However, the revocation or suspension of a person's driving privileges by the Secretary of State is not enhancement of a punishment against the person, but rather is an administrative action aimed at the protection of the public. See Anno, Automobiles: validity & construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of...
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