People v. McKnight

• Decision Date: 02 September 1980
• Docket Number: No. 79SA371,79SA371
• Citation: 617 P.2d 1178,200 Colo. 486
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dewey Kenneth McKNIGHT, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1178

617 P.2d 1178

200 Colo. 486

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dewey Kenneth McKNIGHT, Defendant-Appellant.

No. 79SA371.

Supreme Court of Colorado.

Sept. 2, 1980.

Rehearing Denied Nov. 3, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Michael Heher, Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

The appellant, Dewey Kenneth McKnight, was convicted in district court of Driving After Judgment Prohibited, section 42-2-206, C.R.S. 1973. McKnight has appealed, challenging the constitutionality of the statutes upon which his conviction is based. We affirm the conviction but vacate the sentence and remand the case to the trial court for resentencing.

A brief outline of the relevant statutes will be of assistance in understanding the events in this case. The habitual traffic offender statute, sections 42-2-201 to 208, C.R.S. 1973, defines an habitual traffic offender ¹ as one having a designated number of convictions for specified traffic offenses within a prescribed period of time. Section 42-2-202, C.R.S. 1973. The Colorado Department of Revenue, Motor Vehicle Division (DMV), is authorized to conduct hearings to determine whether a person is an habitual traffic offender and to revoke the driver's license of an habitual traffic offender for a period of five years. Sections 42-2-203 and 205, C.R.S. 1973. Anyone who operates a motor vehicle in Colorado while his driver's license is under revocation by reason of his status as an habitual traffic offender is guilty of Driving After Judgment Prohibited, a class 5 felony. Section 42-2-206, C.R.S. 1973. In sentencing for that crime, probation and suspension of sentence are prohibited unless the defendant establishes that he had to drive because of an emergency. Id.

On August 11, 1977, a state patrolman noticed that an automobile driven by the appellant had an expired state inspection sticker, and stopped the vehicle. When the appellant could not produce a driver's license, the patrolman investigated and discovered that the appellant's driver's license had been revoked because he had been found to be an habitual traffic offender. See section 42-2-203, C.R.S. 1973. The appellant subsequently was charged with Driving After Judgment Prohibited, in violation of section 42-2-206, C.R.S. 1973.

At trial the prosecution presented evidence that on August 11, 1977, the appellant had been operating a motor vehicle within Colorado. The prosecution then introduced an order of revocation dated May 19, 1977, signed by a hearing officer for the DMV, together with testimony that the order remained in effect on August 11, 1977. The order contains a finding that the appellant's record sustains revocation of his driver's license because of his status as an habitual traffic offender, and orders revocation of that license for a period of five years. See sections 42-2-203 and 205, C.R.S. 1973. The appellant's signature, acknowledging service of the original copy of the order, appears on the face of the order.

On the reverse side of the order appears the following written advisement, signed by McKnight:

"ADVISEMENT OF RIGHTS: I have been advised of the purpose of this hearing and the possible consequences. I understand I am subject to REVOCATION as provided in 42-2-203 C.R.S. 1973 as amended. I also understand that pursuant to 42-2-127 C.R.S. 1973 as amended, I may obtain judicial review of the hearing officer's determination if applied for within thirty days from the date of this hearing."

The advisement contains a notation that "student counsel" and the appellant's wife appeared at the hearing. ²

McKnight was 67 years of age at the time of the license revocation hearing. He testified that he had driven knowing that his license had been taken away and that he was not supposed to drive. He explained that he considered his conduct necessary in order to obtain medicine for his seriously ailing wife. The appellant further testified that he was hard of hearing; that he could not hear what was going on at the license revocation hearing; that he forgot to bring his glasses to that hearing and could not read the forms; that he simply signed the forms which the hearing officer told him to sign; and that the consequences of habitual offender status, other than loss of his driver's license, were never explained to him. The prosecution, by cross-examination and rebuttal evidence, called into question the illness of the appellant's wife and the need for the appellant to have driven the vehicle.

The jury found McKnight guilty ³ and, in response to a special interrogatory on the verdict form, found that he "did not drive a motor vehicle because of an emergency." The court sentenced the appellant to the state reformatory for an indeterminate term not to exceed five years. McKnight appealed, based upon the denial of motions to dismiss the charge because of several alleged constitutional deficiencies in the habitual traffic offender statute, sections 42-2-201 to 208, C.R.S. 1973.

We start with the proposition that the statute is presumed to be constitutional. E. g., People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972). The defendant has the burden of proving the statute to be unconstitutional beyond a reasonable doubt. E. g., People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Gonzales, 188 Colo. 272, 534 P.2d 626 (1975).

I.

The appellant first contends that he has been denied due process of law ⁴ because of inadequate protections afforded by statute to one charged with Driving After Judgment Prohibited. We do not agree.

An habitual traffic offender is defined to include one having, within a seven-year period, three or more convictions of operating a motor vehicle while under the influence of intoxicating liquor. Section 42-2-202, C.R.S. 1973. That portion of the definition was the basis for the DMV's finding that the appellant was an habitual traffic offender.

An administrative proceeding to revoke the license of an habitual traffic offender is authorized by section 42-2-203, C.R.S. 1973, which provides:

"42-2-203. Authority to revoke license of habitual offender. The department (DMV) has the authority to revoke the license of any person whose record brings him within the definition of an habitual offender in section 42-2-202; except that the hearing procedure, as specified in section 42-2-123(7) to (12) shall be employed prior to any such revocation."

The hearing procedure so specified ⁵ includes written notice of hearing, hearing, and the right to appeal to the district court from an order of the DMV revoking a driver's license. Section 42-2-123(7) to (12), C.R.S. 1973 (1979 Supp.) Pursuant to such procedures, the appellant was found to be an habitual traffic offender. He did not appeal.

The criminal conviction from which McKnight has appealed is based upon section 42-2-206, C.R.S. 1973, which provides in pertinent part:

"42-2-206. Driving after judgment prohibited. (1) It is unlawful for any person to operate any motor vehicle in this state while the revocation of the department (DMV) prohibiting the operation remains in effect. Any person found to be an habitual offender, who is thereafter convicted of operating a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, is guilty of a class 5 felony. No portion of such sentence may be suspended, and no probation may be granted; except that, in a case where the defendant establishes that he had to drive the motor vehicle in violation of this subsection (1) because of an emergency, the mandatory prison sentence may not apply."

The appellant does not directly challenge the license revocation procedures in the habitual traffic offender statute to the extent that such procedures divest an habitual traffic offender of his license to drive a motor vehicle. He contends, however, that to use the DMV revocation order as an essential element of the crime of Driving After Judgment Prohibited violates constitutional protections of the accused in that criminal proceeding.

The appellant's argument runs as follows: (1) The key element of the offense of Driving After Judgment Prohibited is the defendant's status as an habitual traffic offender; (2) therefore, the hearing at which a determination is made of the defendant's status as an habitual traffic offender is a critical stage of the criminal proceedings and due process rights apply; and (3) due process requires, at a minimum, the right to assistance of counsel, the right to compulsory attendance of witnesses, and the right to confront adverse witnesses at the license revocation hearing. ⁶ See U.S.Const. amends. VI and XIV; Colo.Const. art. II, §§ 16 and 25.

A.

The administrative proceeding to revoke a driver's license because of habitual traffic offender status is a civil one. People v. Able, Colo., 618 P.2d 1100 (1980). The only immediate consequence of a determination that the licensee is an habitual traffic offender is the loss of his driver's license for a period of five years. Section 42-2-205, C.R.S. 1973. Thus, the constitutional protections afforded criminal defendants need not be provided to the licensee in such a proceeding. The appellant does not question this to the extent that the consequence attaching to habitual traffic offender status is loss of driving privileges, but contends that, because the determination of habitual traffic offender status is so central to a conviction for Driving After Judgment Prohibited, the administrative habitual traffic offender hearing must be considered a critical stage of the criminal case. This contention was considered and rejected in Ferguson v. Gathright 485 F.2d 504 (4th Cir. 1973), cert....