McGuire v. State, Dept. of Revenue and Taxation, 90-197

• Decision Date: 17 April 1991
• Docket Number: No. 90-197,90-197
• Citation: 809 P.2d 271
• Parties: Thomas McGUIRE, Appellant (Petitioner), v. STATE of Wyoming, DEPARTMENT OF REVENUE AND TAXATION, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 271

809 P.2d 271

Thomas McGUIRE, Appellant (Petitioner), v. STATE of Wyoming, DEPARTMENT OF REVENUE AND TAXATION, Appellee (Respondent).

No. 90-197.

Supreme Court of Wyoming.

April 17, 1991.

Ronald G. Pretty, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Michael L. Hubbard, Senior Asst. Atty. Gen., and Milo M. Vukelich, Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

CARDINE, Justice.

This appeal is from an order of the district court affirming a Department of Revenue and Taxation's (Department) report and decision suspending appellant Thomas McGuire's driver's license for one year, pursuant to W.S. 31-5-233 and 31-7-128, because of a second driving while under the influence (DWUI) conviction.

We affirm.

Appellant presents the following issues:

I. Whether the Department of Revenue and Taxation erred in its interpretation of W.S. 31-7-128 and subsequently:

A. Erred in imposing a second DWUI penalty rather than a first offense DWUI penalty;

B. Erred in treating the second DWUI conviction as a second offense when the district court treated it as a first offense; and C. Abused its power of discretion and therefore acted unconstitutionally.

II. W.S. 31-7-128 is unconstitutional.

FACTS

Appellant Thomas McGuire was arrested for DWUI on June 7, 1983, in violation of W.S. 31-5-233. At that time, Gooden v. State, 711 P.2d 405 (Wyo.1985), was pending before the Wyoming Supreme Court presenting the question whether Wyoming's DWUI statute was constitutional. Appellant, on September 11, 1983, joined other cases then before the court to challenge the constitutionality of W.S. 31-5-233. In the Gooden case, the Wyoming Supreme Court held the statute constitutional. Appellant's case came to trial on December 19, 1984. He appeared pro se and pled guilty to the DWUI charge.

Appellant was convicted again for DWUI on September 11, 1989. Upon receipt of appellant's driver record, the Department, pursuant to W.S. 31-5-233 and 31-7-128, notified appellant that his driver's license would be suspended for one year.

Appellant requested an administrative hearing to challenge the length of driver's license suspension. At the hearing he asserted that the length of time between his first arrest (June 7, 1983) and second arrest (July 11, 1989) exceeded the five-year period prescribed in W.S. 31-7-128. He contended that the Department must use either the date of offense or the date of conviction, not both, to determine when the five-year period would begin which would enhance the subsequent DWUI conviction. Appellant argued that the date of arrest for his first DWUI conviction should have been the controlling date.

The Department, upon review of the hearing record and its interpretation of W.S. 31-7-128, determined that the offense and conviction of the second DWUI occurred within five years of the first DWUI conviction. Appellant's driver's license was suspended for one year--a first offense DWUI penalty would have resulted in a 90-day suspension.

DISCUSSION

Central to this appeal is the Department's interpretation of W.S. 31-7-128 (June 1989 pamphlet), which states in pertinent part:

"(b) Upon receiving a record of a driver's conviction under W.S. 31-5-233 or other law prohibiting driving while under the influence, the division shall suspend the license * * * for:

"(i) Ninety (90) days for the first conviction;

"(ii) One (1) year, if the person has been previously convicted once under W.S. 31-5-233 or other law prohibiting driving while under the influence within the five (5) year period preceding:

"(A) The date of the offense upon which the conviction is based; or

"(B) The date of the conviction at issue." (emphasis added)

The standard of judicial review for administrative actions is governed by W.R.A.P. 12.09 and W.S. 16-3-114(c). Wyoming Statute 16-3-114(c)(ii) states the court shall set aside agency action, findings and conclusions found to be:

"(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

"(B) Contrary to constitutional right, power, privilege or immunity;

"(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

"(D) Without observance of procedure required by law; or

"(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute."

We have said that when the court reviews an agency decision:

"We examine the entire record to determine if there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency. It is more than a scintilla of evidence." (citation omitted) Trout v. Wyoming Oil and Gas Conservation Comm'n, 721 P.2d 1047, 1050 (Wyo.1986). See also Hohnholt v. Basin Electric Power Co-op, 784 P.2d 233, 234 (Wyo.1989).

We review the decision of an administrative agency as if we were a reviewing court of the first instance; petitioners have the burden of proving that the agency's actions are arbitrary, capricious or an abuse of discretion; the reviewing court must examine whether the decision made by an administrative agency has been reached on relevant factors and was rational; agency decisions are to be reversed only for errors of law; and courts will not substitute their judgment for that of an administrative agency. Vandehei Developers v. Public Service Comm'n, 790 P.2d 1282, 1284 (Wyo.1990).

To determine whether the Department erred in treating appellant's September 11, 1989 conviction as a second DWUI offense requires us to review the Department's interpretation of W.S. 31-7-128. The court always begins the search by focusing on the language of the legislative enactment, giving to that language its plain and ordinary meaning. Schultz v. State, 751 P.2d 367, 370 (Wyo.1988). A statute is viewed in terms of its objective and purpose. Hurst v. State, 698 P.2d 1130, 1133 (Wyo.1985).

The statutory language of W.S. 31-7-128 is plain and unambiguous. The mandate of this statute is that the Department must suspend a driver's license for 90 days upon a conviction of DWUI. If within five years from the date of the DWUI conviction the driver is convicted of another DWUI charge, the mandate of the statute is that the Department must suspend the driver's license for one year. The Department may use either the date of occurrence of the second offense that results in conviction or the date of conviction of the second offense when determining whether it is within the five-year period requiring a one-year suspension under W.S. 31-7-128(b).

The Department's action of suspension in this case was not arbitrary, capricious or an abuse of discretion. Wyoming Statute 31-7-128 does not allow for an exercise of discretion. Agency action is mandated. Appellant was convicted of DWUI on December 19, 1984. He was convicted again for DWUI on September 11, 1989. This is more than substantial evidence; it is unrefuted evidence of a second conviction within the specified five-year period. The court must accept an agency's finding of fact when supported by substantial evidence. City of Cheyenne Policemen Pension Bd. v. Perreault, 727 P.2d 702, 704 (Wyo.1986).

Appellant also contends that the suspension of a driver's license is penal in nature and the Department's action in treating it as civil in nature is an abuse of discretion and, therefore, unconstitutional. No cogent authority is presented to support this argument; therefore, it would not ordinarily be considered by this court. E.C. Cates Agency, Inc. v. Barbe, 764 P.2d 274, 276 (Wyo.1988). Nevertheless, we note again that driver's license suspensions are civil proceedings that are separate and distinct from criminal DWUI prosecutions. Drake v. State ex rel. Dept. of Rev. and Tax., 751 P.2d 1319, 1322 (Wyo.1988).

Appellant's argument that the hearing officer erred in interpreting W.S. 31-7-128 as lengthening the period of suspension instead of shortening it is unfounded. The argument as stated by appellant is less than clear. It may mean that suspension was for a year rather than 90 days--or it may mean something else. Wyoming Statute 31-7-128 has no provision allowing lengthening or shortening the period of suspension, and there is no evidence that the hearing officer "lengthened" the suspension. We cannot accept the argument that it was legislative intent to shorten periods of suspension for DWUI. If anything, the opposite is true. We are aware that the legislature, responding to the public outcry against drunk drivers, has significantly increased the penalties for drunk driving convictions. City of Casper v Cheatham, 739 P.2d 1222, 1224 (Wyo.1987). The purpose of mandatory suspension of a driver's license for a prescribed period of time is to put those who choose to violate Wyoming's DWUI laws on notice of the penalties awaiting. These laws have been created to protect the public, not the privilege of those who choose to drive drunk. Wyoming Statute 31-7-128 is written to allow the Department to use either the date of the offense of the second DWUI conviction or the date of conviction of that offense to determine if a one-year suspension is required. This insures that any delay of trial will not forfeit the suspension mandate if the offense date falls within the statutory time frame and the date of conviction does not. The legislature is obviously aware of the problems the drunk driver creates, and it has responded with what can only be described as unmistakable clarity. It has given the matter serious attention and has exerted unrelenting pressure on drunken drivers. Nowack v. State, 774 P.2d 561, 567 (Wyo.1989).

Appellant argues a violation of his constitutional right to contest a DWUI charge...