State v. Myers

• Court: South Dakota Supreme Court
• Writing for the Court: MILLER; WUEST; HENDERSON; HENDERSON
• Citation: State v. Myers, 411 NW2d 402 (S.D. 1987)
• Decision Date: 22 May 1987
• Docket Number: No. 15601,15601
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Thomas MYERS, Defendant and Appellant. . Considered on Briefs

Page 402

411 N.W.2d 402

STATE of South Dakota, Plaintiff and Appellee, v. Thomas MYERS, Defendant and Appellant.

No. 15601.

Supreme Court of South Dakota.

Considered on Briefs May 22, 1987.

Decided Aug. 19, 1987.

Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Michael Stonefield, Public Defender's Office, Rapid City, for defendant and appellant.

MILLER, Justice.

This case involves the propriety of a sentence consisting in part of a lifetime revocation of driving privileges for a DUI (third offense) (felony). We affirm.

FACTS

Thomas Myers (Myers), was charged with and pleaded guilty to driving under the influence (DUI) in violation of SDCL 32-23-1(2) and SDCL 32-23-4. A presentence investigation was ordered. Based upon Myers' long history of alcohol abuse and prior felony convictions, the trial court imposed a two-year sentence in the South Dakota State Penitentiary and unconditionally revoked all driving privileges for the remainder of Myers' life.

ISSUE

Myers argues that the trial court abused its discretion in revoking his driving privileges for the remainder of his life.

PROPORTIONALITY REVIEW

Myers asks this court to apply an Eighth Amendment proportionality review to the lifetime revocation of his driving privileges while State asserts that the proportionality review does not apply.

The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), provided a three-prong analysis for determining the proportionality of a sentence under the Eighth Amendment. Subsequently, we held in State v. Williamson, 342 N.W.2d 15, 18 (S.D.1983), that "we must consider the proportionality of the sentence when a life sentence without parole is imposed." (Emphasis in original.) See also State v. Dillon, 349 N.W.2d 55 (S.D.1984). Both Williamson and Dillon were modified by State v. Weiker, 366 N.W.2d 823 (S.D. 1985), wherein we extended the Eighth Amendment proportionality review to felony sentences for a term of years. However, we further stated in Weiker that we would not subject every felony sentence to exhaustive review. In Weiker, we quoted the United States Supreme Court in Solem v. Helm as stating:

'We do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.... Successful challenges to proportionality of particular sentences will be exceedingly rare.'

Weiker, 366 N.W.2d at 827 (citations omitted).

In light of the foregoing, this court will not extend an Eighth Amendment proportionality analysis to that part of a felony sentence which consists in the lifetime revocation of a driving privilege. ¹ Cf. State v. Crotinger, 75 Ohio App. 443, 62 N.E.2d 494 (1945). Revocation of Myers' driver's license was done for the protection of the public and not merely for the purpose of enhancing his punishment. ²

ABUSE OF DISCRETION

Nor do we find that the trial court acted unreasonably or abused its discretion in the lifetime revocation of Myers' license. Myers was sentenced under the purview of SDCL 32-23-4, which provides:

If conviction for a violation of Sec. 32-23-1 is for a third offense, or subsequent offense thereafter, the person is guilty of a Class 6 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant's driving privileges for such period of time as may be determined by the court, but in no event less than one year from the date of his final discharge. If the person is convicted of driving without a license during that period, he shall be sentenced to the county jail for not less than ten days, which sentence may not be suspended.

At sentencing, the trial judge openly reviewed Myers' record with him. This record consisted of seven prior felony convictions (mostly check-related convictions) with eleven DUI convictions in the states of South Dakota, Texas, and Colorado. On at least three previous occasions, Myers had been arrested for driving without a license or driving under suspension or revocation. Myers appeared at sentencing with a broken nose, which was the result of a drunken spree while he was free on bail. Further, Myers has been unsuccessfully hospitalized for alcohol treatment on seven different occasions since 1969. The trial court stated at sentencing:

.... I'm going to unconditionally revoke your driving privileges for the remainder of your life because I feel that your history is [a] clear indication that you are not able to stop drinking.

Myers claims that there is little rationality for a lifetime revocation because the sentence would presuppose that Myers can never again gain sobriety or ever again safely operate a motor vehicle in this state. Myers further contends that the punishment is far in excess of anything justified in his prior record and that his driving record reveals no aggravating circumstances such as an accident or a fatality.

We do not agree with Myers. First, his license has been permanently revoked for the public's safety. We simply cannot overlook the awesome duty owed to society to attempt to insure safety on the highways of this state. Under SDCL 32-23-4, the trial court has the capability, authority, and responsibility to determine whether a lifetime revocation is appropriate under the circumstances.

Secondly, in light of his forty-year problem with alcohol, his several unsuccessful hospital treatments for alcohol, and numerous DUI convictions, Myers has demonstrated that he is not a likely candidate for rehabilitation. He does not deserve to possess the privilege of driving, primarily because of his lack of concern for the safety of others and his general disrespect for the law and society in general. This court will not wait for Myers to become involved in a serious accident, and perhaps one that would maim or kill, before approving the revocation of his license privilege. In a case such as this, a lifetime revocation is reasonable under the police power of the state pursuant to SDCL 32-23-4. The trial court has not abused its powers or discretion in imposing the lifetime revocation.

Affirmed.

WUEST, C.J., and MORGAN and SABERS, JJ., concur.

HENDERSON, J., specially concurs.

HENDERSON, Justice (specially concurring).

JUDICIAL REVIEW AS A DOCTRINE

Judicial review is not explicitly mentioned in the United States Constitution or amendments thereto. Often, the judiciary comes under stern criticism because of the doctrine of "judicial review." One might very well ask, what is judicial review? In my mind-set, it is this: Courts, having the duty to uphold the Law, must, when called upon to do so, compare a certain law, statute, municipal ordinance, or executive edict with the constitution, to determine if that promulgation of authority conflicts with the constitution. If it does, that promulgation may be declared unconstitutional by the judicial branch of government. ¹ This has generated a raging debate throughout our Republic's history. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), then Chief Justice John Marshall enunciated the doctrine of judicial review. He simply reasoned that it was the court system which must decide cases and that a conflict often exists between the constitution and promulgations such as enumerated above, which spawned an absolute duty to declare the promulgation as being contrary to the constitution.

I question not, for one moment, that a legislature may pass laws to clarify previous laws which need clarifying; nor do I dispute that a legislature can make more abundantly clear its intent, when it is obvious, by court decision, that the original intent was poorly drafted or murky. Each year, in state legislatures, including our own, there are "repealers" and "amenders" passed to eliminate errors. With the volume of legislation passed, however, laws do often remain on the statute books which are vague or uncertain in meaning. This triggers litigation and creates interpretive analysis of another branch of government, the judicial branch. We have tried, in the past, to impose a fundamental rule of statutory construction, i.e., all provisions within a statute must be given effect, if possible. State v. Heisinger, 252 N.W.2d 899 (S.D.1977). Very early, we announced the rule that all courts of our state must judicially recognize and apply the statutes of this state. In re Gibbs, 51 S.D. 464, 214 N.W. 850 (1927). We have referred to amendments, concerning constitutionality, as making a change in the existing system. With respect thereto, we have said that "[t]he courts are under the duty to consider the old law, the mischief, and the remedy, and to interpret the constitution broadly to accomplish the manifest purpose of the amendment." South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 697 (S.D.1981) (quoting 16 Am.Jur.2d Constitutional Law Sec. 88, at 415 (1979)). See State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993 (1921). This Court, historically, has handed down many decisions concerning statutory construction and interpretation. It is part of the legal lore of this state. As litigation percolates through the system and cases ultimately arrive at the South Dakota Supreme Court, and are then and there decided by the rule of law, namely by judicial review, this Court is serving its legitimate function of the tripartite system of government. It strikes me that a decision which is simply "a...