Rabon v. South Carolina State Highway Dept., 19389

• Decision Date: 14 March 1972
• Docket Number: No. 19389,19389
• Citation: 187 S.E.2d 652,258 S.C. 154
• Court: South Carolina Supreme Court
• Parties: John A. RABON, Respondent, v. The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT and E. P Austin, Jr., Director, Motor Vehicle Division, Appellants.

Page 652

187 S.E.2d 652

258 S.C. 154

John A. RABON, Respondent, v. The SOUTH CAROLINA STATE HIGHWAY DEPARTMENT and E. P Austin Jr., Director, Motor Vehicle Division, Appellants.

No. 19389.

Supreme Court of South Carolina.

March 14, 1972.

Atty. Gen., Daniel R. McLeod, and Asst. Attys. Gen. C. Tolbert Goolsby, Jr., and Edwin B. Brading, Columbia, for appellants.

Kneece, Kneece & Brown, Columbia, for respondent.

LEWIS, Justice.

Respondent has twice violated Section 46--343 of the 1962 Code of Laws, which makes it unlawful to operate a motor vehicle while under the influence of intoxicants. The question to be decided is whether respondent's last violation constituted a first or second offense for the purpose of suspending his driver's license, within the meaning of Code Section 46--348.

Appellant, South Carolina Highway Department, is required under Section 46--348 to 'suspend the driver's license of any person who is convicted, receives sentence upon a plea of guilty or nolo contendere or forfeits bail' for operating a motor vehicle while under the influence of intoxicants, etc. The period of license suspension depends upon the number of the offense. For a first offense the license is suspended for a period of six months, and twelve months for a second offense. However, in determining the number of the offense for the purpose of license suspension, the statute provides that those violations occurring more than ten years prior to the last violation shall not be considered. The exact wording of the statute in this regard is as follows:

'Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section.'

The present controversy arises from a dispute as to whether respondent's second offense occurred within ten years of the first within the meaning of the quoted statutory provision.

Respondent's first violation occurred on September 5, 1960, with the date of conviction prior to October 20, 1960. The second violation occurred on August 29, 1970, with conviction for that offense on October 19, 1970. It is undisputed that the last Violation occurred within ten years after the first violation. It is also conceded that the last Conviction occurred more than ten years after both the first violation and conviction in 1960.

Therefore, if the date of the Violation is the date by which the ten year period is to be determined, the last offense by respondent constituted a second offense under the statute. And if the date of Conviction is the determining date, the last offense would be a first because the first violation and conviction was more than ten years prior thereto.

Appellant adopted the view that prior offenses must be determined under the statute from the Date of violation and accordingly suspended respondent's driver's license for a period of twelve months for a second offense. Respondent thereafter brought this mandamus proceeding to require the appellant...