Minchenko v. VT Commissioner of Motor Vehicles

Minchenko v. VT Comm. of Motor Vehicles (95-158); 164 Vt 624; 672 A.2d 478

[Filed 18-Dec-1995]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-158

                            NOVEMBER TERM, 1995


Daniel J. Minchenko                  }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Windsor Superior Court
                                     }
Vermont Commissioner of Motor        }
Vehicles                             }     DOCKET NO. S438-94Wrc


       In the above-entitled cause, the Clerk will enter:

       Defendant driver sued the Commissioner of Motor Vehicles to vacate a
  license suspension for a third conviction of driving while under the
  influence (DUI) and to require that any suspension be based on a record of
  DUI, first offense.  The Windsor Superior Court granted the State's motion
  for summary judgment.  We affirm.

       In August 1994, defendant was cited for DUI, refusal.  Pursuant to 23
  V.S.A. § 1205 he was also given a notice of intent to suspend his driver's
  license.  Defendant pled not guilty to the criminal charge and requested a
  hearing with respect to the civil suspension.  At the final hearing on the
  suspension, defendant stipulated to a finding in favor of the State, and
  his license was suspended for six months.  He subsequently pled guilty to a
  charge of DUI, first offense, and was sentenced to serve three months to
  two years in jail, with all time to serve suspended, a fine, and probation.

       Following the criminal conviction, the State issued a second notice
  suspending defendant's driver's license for three years pursuant to 23
  V.S.A. § 1208(b).  The suspension was based on the Department's motor
  vehicle records, reflecting prior convictions for "DW1" in June 1981 and
  "DW2" in January 1983.

       Defendant brought the present action to vacate the State's second
  suspension notice and to require that any suspension be based upon a record
  of DUI, first offense.  The court granted the State's motion for summary
  judgment, and this appeal followed.

       At issue is action the commissioner took in accordance with 23 V.S.A.
  § 1208(b), which provides:

           Upon a third conviction of a person violating a provision
           of section 1201 of this title and upon final determination of any
           appeal, the court shall forward the conviction report forthwith to

 

           the commissioner of motor vehicles.  The commissioner shall
           immediately revoke the person's operating license, or nonresident
           operating privilege or the privilege of an unlicensed operator to
           operate a motor vehicle for three years and until the defendant
           complies with section 1209a.

       Defendant's sole argument is that the DUI court identified his
  conviction as a first offense and that the principle of separation of
  powers embodied in Chapter II, § 5 of the Vermont Constitution (FN1) bars
  administrative agencies like the Department of Motor Vehicles from
  exercising judicial power to change the nature of his criminal conviction
  and the consequences that flow from it.

       It is important to note that defendant does not challenge the
  constitutionality of the statutory license suspension scheme as a whole. 
  He rather limits his argument to the point that if the DUI court
  denominated his conviction as a first offense, the commissioner, who serves
  in the executive, not the judicial, branch of government, lacks the power
  to change the nature of the conviction in her suspension process.

       We disagree, because the commissioner did not effect any change in the
  nature or incidents of the criminal conviction.  It is true, but irrelevant
  to the present case, that the determination of whether a person is subject
  to liability as a subsequent offender is a criminal rather than a civil
  proceeding.  State v. Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 280
  (1967).  Thus, under 23 V.S.A. § 1210 the number of DUI convictions is
  relevant to the sentencing court, since enhanced criminal penalties may
  result.

       But the suspension or revocation of an operator's license as a result
  of a DUI conviction is an administrative, not a criminal, action performed
  by the Commissioner of Motor Vehicles. In re Bolio, 126 Vt. 424, 427, 234 A.2d 336, 339 (1967).  As we stated in State v. Strong, 158 Vt. 56, 63, 605 A.2d 510, 514 (1992):

     [T]he license suspension proceeding is not a criminal prosecution
     . . . .  The Legislature intended a civil proceeding; the civil
     procedure rules apply; the evidentiary standard of proof is civil;
     and, finally, no criminal sanction may be imposed through the
     proceeding -- only license suspension can take place.

  Accord State v. O'Brien, 158 Vt. 275, 277, 609 A.2d 981, 982 (1992).

       When a record of a DUI conviction crosses the commissioner's desk, her
  role is simply to count the total number of valid convictions, and then to
  act in accordance with the statutory

 

  mandate.  A district court's designation of a DUI conviction as a first
  offense does not vitiate the character of the conviction as a conviction. 
  Nor may its conviction orders be read to delete prior convictions from the
  records of an independent branch of government -- the very kind of
  constitutional violation that defendant urges this Court to disallow.

       We decided essentially the question now before us, albeit absent a
  constitutional claim, in Carpenter v. Department of Motor Vehicles, 143 Vt.
  329, 333-34, 465 A.2d 1379, 1382 (1983).  In that case the district court
  found that there was no evidence other than that the conviction of the
  defendant was his first refusal offense.  The defendant then argued on
  appeal that the commissioner should be bound by the finding of the
  convicting court.  We held, to the contrary, that once a conviction is
  entered by the district court, "`[n]either the court nor the commissioner
  of motor vehicles has been granted discretionary power in this statutory
  consequence.'"  Id. at 334, 465 A.2d  at 1382 (quoting Bolio, 126 Vt. at
  427-28, 234 A.2d at 339).

       The present case, in constitutional garb, raises no questions not
  settled in Bolio and Carpenter.  It is not a violation of Chapter II, § 5
  for the commissioner to follow her mandate to the letter, under a statutory
  scheme that makes her role, and that of the courts, clear and distinct.

       Affirmed.



                              BY THE COURT:


                              ____________________________________________
                              Frederic W. Allen, Chief Justice

                              ____________________________________________
                              Ernest W. Gibson III, Associate Justice

                              ____________________________________________
                              John A. Dooley, Associate Justice

Publish                       ____________________________________________
                              James L. Morse, Associate Justice
Do Not Publish
                              ____________________________________________
                              Denise R. Johnson, Associate Justice



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                                  Footnotes


FN1.  Chapter II, § 5 provides as follows:

       The Legislative, Executive, and Judiciary departments, shall be
       separate and distinct, so that neither exercise the powers properly
       belonging to the others.