State v. Lewis
| Decision Date | 11 April 1997 |
| Docket Number | No. 75375,75375 |
| Citation | 23 Kan.App.2d 758,935 P.2d 1072 |
| Parties | STATE of Kansas, Appellee, v. Sheryl M. LEWIS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. When a party challenges the constitutionality of a state statute, the issue raised is a question of law giving an appellate court de novo review. Kansas appellate courts have long recognized that there is a presumption that state statutes are constitutional and they will be struck down only when such clearly violate the constitution. Kansas courts not only have the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.
2. Suspension of issued driver's licenses involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment.
3. The Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible "property" or "liberty" interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decision-making comply with standards that assure perfect, error-free determinations.
4. From a due process viewpoint, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
5. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be. The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.
6. K.S.A.1996 Supp. 8-287 does not require proof that the licensee had actual knowledge of the notice declaring him or her a habitual violator to sustain a conviction.
Barry Albin, Kansas City, for appellant.
Delia M. York, Assistant District Attorney, Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before MARQUARDT, P.J., RULON, J., and TIMOTHY G. LAHEY, District Judge, Assigned.
Defendant Sheryl M. Lewis appeals from her conviction under K.S.A.1996 Supp. 8-286 and K.S.A.1996 Supp. 8-287 of driving while a habitual violator. We affirm.
The facts are as follows:
On September 28, 1994, defendant's car broke down on Interstate 635 in Wyandotte County. A Kansas state trooper stopped to assist defendant. Eventually, defendant gave her driver's license to the trooper, who ran a check on the license. The trooper was advised that defendant's license had been revoked as a habitual violator. The trooper then issued a ticket to defendant. In October 1994, the State filed charges against defendant for operating a motor vehicle while a habitual violator.
A preliminary hearing was held, at which time the trooper testified. In addition, the State offered into evidence as an exhibit a certified copy of defendant's driving record. That exhibit is not included in the record on appeal. As we understand, the exhibit established that a proof of mailing was included which certified the Department of Revenue sent a notice that defendant had been found to be a habitual violator. The address on the notice was 4004 Barber Court, Kansas City, Kansas, defendant's last known address.
At the preliminary hearing, defendant testified she resided at 4004 Barber Court in Kansas City, Kansas. She further testified she admitted receiving multiple tickets in the past for driving without insurance. Defendant appeared before a judge on those charges and paid fines for each. Defendant denied ever getting any kind of notices from the Department of Revenue regarding her tickets or her license until two months after her arrest in this case. Defendant denied any knowledge of being declared a habitual violator until the trooper told her on September 28, 1994.
Defendant was eventually bound over to stand trial. Later, defendant filed a motion to dismiss the charges against her. Defendant argued the habitual violator statutes were unconstitutional and the Department of Revenue's notice of suspension or revocation of her driver's license sent by ordinary mail failed to meet constitutional due process standards. In response, the State argued that driving was a "privilege" and that due process did not apply to proceedings involving the suspension or revocation of a driver's license.
Eventually, the case was submitted to the district court for trial on stipulated facts. Defendant stipulated she had been driving her vehicle on September 28, 1994, and was being assisted by a State trooper when it was discovered she had been declared a habitual violator as of August 16, 1994. Defendant further stipulated she lived at the address to which the Department of Revenue had sent written notice of the declaration, but she alleged she did not receive the notice. The parties stipulated that the Department sent the requisite notice by first-class mail to defendant's address. The court found defendant guilty and defendant now appeals.
Defendant first contends the Kansas habitual violator statutes, as amended in 1994, violate her due process rights because such statutes provide for notice of the declaration of habitual violator status by regular mail and not by restricted mail.
When a party challenges the constitutionality of a state statute, the issue raised is a question of law giving an appellate court de novo review. State v. Bryan, 259 Kan. 143, 145, 910 P.2d 212 (1996). Kansas appellate courts have long recognized that there is a presumption that state statutes are constitutional and they will be struck down only when they clearly violate the constitution. See In re Care & Treatment of Hendricks, 259 Kan. 246, 253, 912 P.2d 129 (1996). Kansas courts not only have the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174,cert. denied 492 U.S. 923, 109 S.Ct. 3254, 106 L.Ed.2d 600 (1989).
Both parties spend considerable time arguing whether possession of a driver's license is a property right or a "privilege." Defendant argues that under Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970), due process applies in this case. The State contends that because the issuance of a driver's license is a privilege, due process of law does not apply. The State relies on Marbut v. Motor Vehicle Department, 194 Kan. 620, 622, 400 P.2d 982 (1965), in which our Supreme Court held that a driver's license was a "mere privilege the suspension of which does not deprive the individual of due process of law."
The issue of the application of due process in driver's licenses suspension cases is well settled. In Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the United States Supreme Court reviewed the constitutionality of an Illinois statute providing for the suspension of a driver's license based upon official records establishing that the driver has been repeatedly convicted of serious traffic offenses. The Dixon court said:
[Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971) ]." 431 U.S. at 112, 97 S.Ct. at 1727.
The State's reliance on Marbut is misplaced as that decision was issued before the United States Supreme Court's rulings in Bell and Dixon. In more recent cases, the Kansas Supreme Court has implicitly recognized that due process attaches in cases involving the revocation or suspension of driver's licenses. See State v. Mertz, 258 Kan. 745, 758, 907 P.2d 847 (1995); Carson v. Division of Vehicles, 237 Kan. 166, Syl. p 1, 699 P.2d 447 (1985) (). Consequently, the State's contention that due process standards are inapplicable must be rejected.
Once it is determined that due process appliesto a specific governmental action, however, a court must still determine "what process is due to protect against an erroneous deprivation of that interest." Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (1979).
Defendant contends the 1994 amendments (although streamlining the process for declaring habitual violators) fail to comport with due process. Defendant argues that due process requires the Department to send a certified letter with return receipt requested to the alleged habitual violator. However, defendant cites to no authority for this proposition. The State, on the other hand, relies on State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), for its claim that notice by regular mail to the licensee's last known address is adequate. Jones, however, did not deal with due process issues.
In determining "what process is due" in cases of driver's license revocations, some courts have weighed the varying...
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State v. Lewis
...does not require that a "licensee have actual knowledge of the notice declaring him or her a habitual violator." State v. Lewis, 23 Kan.App.2d 758, 768, 935 P.2d 1072 (1997). Lewis petitions this court for review of the Court of Appeals' decision. We reverse and hold that knowledge of statu......