State v. Michalski
| Decision Date | 06 December 1985 |
| Docket Number | No. 85-145,85-145 |
| Citation | 377 N.W.2d 510,221 Neb. 380 |
| Parties | STATE of Nebraska, Appellee, v. Michael T. MICHALSKI, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Equal Protection. Equal protection guarantees that similar persons will be dealt with similarly by the government.
2. Statutes: Constitutional Law: Equal Protection: Appeal and Error. The standard of review used by courts
when reviewing statutes challenged on equal protection grounds depends upon the nature of the classification and the rights affected.
3. Statutes: Constitutional Law: Appeal and Error. Under the strict scrutiny test, strict congruence must exist between the classification and the statute's purpose. The end the legislature seeks to effectuate must be a compelling state interest, and the means employed in the statute must be such that no less restrictive alternative exists.
4. Statutes: Constitutional Law: Appeal and Error. If the statute involves economic or social legislation not implicating a fundamental right or suspect class, courts will ask only whether a rational relationship exists between a legitimate state interest and the statutory means selected by the legislature to accomplish that end.
5. Licenses and Permits: Motor Vehicles: Constitutional Law. Driving is not a fundamental right, and drunk drivers are not a suspect class.
6. Statutes: Constitutional Law: Presumptions. Given a statute's presumption of validity and the legislature's inherent power to classify for legitimate purposes, a challenger bears a heavy burden in demonstrating that the classification is arbitrary and not rationally related to a legitimate governmental end.
7. Statutes: Constitutional Law. An overinclusive classification burdens a wider than necessary range of individuals, extending beyond those persons possessing the trait contributing to the mischief or evil the legislature seeks to eradicate.
8. Statutes: Constitutional Law. An underinclusive classification exists when all persons in the class are indeed perpetrators of the mischief or evil the state wishes to eliminate, but others who possess the same undesirable trait remain outside the class.
9. Statutes: Motor Vehicles: Constitutional Law. The classification made in Neb.Rev.Stat. § 39-669.07 (Reissue 1984), that is, the line drawn between drivers who are drunk and drivers who are sober, is one rationally related to a legitimate governmental end.
10. Licenses and Permits: Motor Vehicles: Constitutional Law: Due Process. A driver's license is an "entitlement," the revocation or suspension of which requires procedural due process guaranteed by the fourteenth amendment.
11. Statutes: Motor Vehicles: Constitutional Law: Due Process: Appeal and Error. Because the right to travel has been characterized as fundamental, courts examine statutes impairing that right using the strict scrutiny standard of review.
12. Statutes: Constitutional Law. To be in a position to challenge the constitutionality of a statute, a party must be adversely affected by the provisions at issue.
13. Criminal Law: Constitutional Law: Sentences. The eighth amendment's proscription of cruel and unusual punishment prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed.
14. Criminal Law: Constitutional Law: Sentences: Appeal and Error. When evaluating whether a sentence constitutes cruel and unusual punishment, courts consider (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals for like offenses in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions.
15. Criminal Law: Constitutional Law: Sentences. Legislatures are not required to select the least severe penalty possible, so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.
Jeffrey M. Doerr, of Kryger Law Office, Neligh, for appellant.
Robert M. Spire, Atty. Gen., and Jill Gradwohl, Lincoln, for appellee.
On July 17, 1982, the Nebraska Unicameral joined a growing number of state legislatures responding to citizens' demands for strict laws dealing with drunk drivers on the nation's public roads. On this date 1982 Neb.Laws, L.B. 568, which amended Nebraska's existing drunk driving laws, went into effect. Intended as a comprehensive program reflecting a "get-tough" attitude toward drunk drivers, the amendments affected a total of nine separate sections of the then-existing drunk driving statutes. See Floor Debate, L.B. 568, Judiciary Committee, 87th Leg., 2d Sess. 8626-27 (Mar. 10, 1982) (statement of Sen. Nichol); Comment, L.B. 568: Nebraska's New Drunken Driving Law, 16 Creighton L.Rev. 90 (1982). At issue in this case is the constitutionality of one of those statutes, Neb.Rev.Stat. § 39-669.07 (Reissue 1984).
Michael T. Michalski was driving his 1969 Chevrolet pickup on a public road in Antelope County at approximately 7:20 p.m. on August 26, 1984. Deputy Ralph Black of the Antelope County Sheriff's Department observed Michalski's vehicle to be traveling at a high rate of speed and in an erratic manner. When Deputy Black stopped the vehicle, he discovered that Michalski was driving on a suspended driver's license and that an open can of beer was in the pickup. After administering various field sobriety tests, all of which Michalski failed, Deputy Black placed Michalski under arrest for drunk driving and transported him to the sheriff's office in Neligh, Antelope County, Nebraska. There, Deputy Black read the implied consent form to Michalski, after which he turned Michalski over to another officer for the purpose of administering a breath alcohol test. The result of the test showed that Michalski had a blood alcohol content of .215.
Michalski was charged with driving while under the influence of alcohol, third offense. On September 14, 1984, he filed a motion to quash, alleging that § 39-669.07 violated numerous state and federal constitutional provisions. The Antelope County Court overruled Michalski's motion and, proceeding on stipulated facts and exhibits, found the defendant guilty of driving while under the influence of alcohol, third offense. The court proceeded immediately to an enhancement hearing, after which, pursuant to § 39-669.07(3), it sentenced Michalski to 120 days in the county jail, a $500 fine plus costs, and permanent revocation of his driver's license. The Antelope County District Court affirmed the conviction and sentence.
Michalski appeals from this judgment, assigning as error the county and district courts' findings on the constitutionality of § 39-669.07. Specifically, Michalski argues that the statute deprives him of equal protection of the law, due process of law, and the right to travel. He further contends that the statute's provisions violate the principle of separation of powers and constitute cruel and unusual punishment. His constitutional challenges are directed primarily, though not exclusively, at the language in § 39-669.07(3) providing for permanent revocation of an operator's license upon the individual's third drunk driving conviction. In pertinent part § 39-669.07 reads:
It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug or when that person has ten-hundredths of one per cent or more by weight of alcohol in his or her body fluid as shown by chemical analysis of his or her blood, breath, or urine. Any person who shall operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug or while having ten-hundredths of one per cent by weight of alcohol in his or her body fluid as shown by chemical analysis of his or her blood, breath, or urine shall be deemed guilty of a crime and, upon conviction thereof, shall be punished as follows:
....
(3) If such person (a) has had two or more convictions under this section since July 17, 1982, (b) has been convicted two or more times under this section as it existed prior to July 17, 1982, (c) has been convicted two or more times under a city or village ordinance enacted pursuant to this section either prior or subsequent to July 17, 1982, or (d) has been convicted as described in subdivisions (3)(a) to (3)(c) of this section a total of two or more times, such person shall be guilty of a Class W misdemeanor and the court shall, as part of the judgment of conviction, order such person to never again drive any motor vehicle in the State of Nebraska for any purpose from the date of his or her conviction, and shall order that the operator's license of such person be permanently revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order such person not to drive any motor vehicle in the State of Nebraska for any purpose for a period of one year, and such order of probation shall include as one of its conditions confinement in the city or county jail for seven days.
For each conviction under this section, the court shall as part of the judgment of conviction make a finding on the record as to the number of the defendant's prior convictions under this section prior or subsequent to July 17, 1982, and the defendant's prior convictions under a city or village ordinance enacted pursuant to this section either prior or subsequent to July 17, 1982. The defendant shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.
We examine first Michalski's...
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