Laurence BUNGARDEANU, Petitioner, v. George A. ENGLAND, Director, Department of Motor Vehicles, Respondent.
No. 3910.
District of Columbia Court of Appeals.
Argued Feb. 7, 1966. Decided April 28, 1966.
It further appears that he has reached the point where he must realize the hard way that his rights stop precisely where others’ begin. He is a menace on the highway.
Probation is not recommended.
It appears very plain to me that the probation report in effect stated that although the jury had acquitted appellant of the charge of driving while under the influence of liquor, he was in fact guilty of that offense and should be so considered. This was highly improper. The charge of driving under the influence had been disposed of by the jury, and it was then not the subject of consideration by either the court оr the Probation Officer.
The probation report brought to the attention of the court that appellant had refused to submit to a urine test, but our statute,
The majority opinion says it would be speculation to assume that the probation report improperly influenced the court in imposing sentence, but two facts stand out very plain. First, the court imposed a sentence of sixty days in jail on the charge of unreasonable speed, аnd it seems to me that this is an unusually severe sentence for such offense when it is remembered that the jury had acquitted appellant of the charge of reckless driving. Second, the trial court on its own motion designated as a part of the record in this case the informations charging driving while under the influence of intoxicating liquor and reckless driving, and the probation report. If the charges of which appellant was acquitted and the contents of the probation report did not influence the court in imposing sentence, why did the court include them in the record?
I would reverse the convictions and order a new trial before another Judge.
Hubert B. Pair, Asst. Corp. Counsel, with whom Milton D. Korman, Acting Corp. Counsel, and Donald Santarelli, Asst. Corp. Counsel, were on the brief, for respondent.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
This is an appeal from a decision of the Director of the Department of Motor Vehicles revoking petitioner‘s driver‘s license. Petitioner had previously been acquitted in the Court of General Sessions of traffic charges arising out of the same incidents which led to the revocation of his license. He does not now challenge the settled principle that “acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based * * *.” Silver v. McCamey, 95 U.S.App.D.C. 318, 320, 221 F.2d 873, 875 (1955); Pieri v. Director of Motor Vehicles, D.C.App., 192 A.2d 807 (1963). But he does claim that the Traffic and Motor Vehicle Regulations of thе District of Columbia require a conviction or forfeiture of collateral for the offenses with which he was charged before they can be made the basis for revocation proceedings. He also argues that the regulation under which his license was revoked is unreasonable and unconstitutionally vague and that evidence concerning the results of a chemical urinalysis of a urine sрecimen taken from him was wrongfully admitted into evidence at his hearing. A summary of the facts follows.
On April 15, 1965, petitioner was arrested by an officer of the Metropolitan Police Department and charged with eight traffic offenses—driving under the influence of intoxicating liquor, reckless driving, three charges of colliding, two charges of leaving after colliding, and one charge of driving on the wrong side of the street. His driver‘s license was suspended pending final disposition of the charges by the court and by the Department of Motor Vehicles. At the hearing on the suspension the police officer testified that while investigating a hit and run accident at Nineteenth and Riggs Place, N. W., he was called to investigate another accident on Seventeenth Street, N. W., in which petitioner had been involved. The officer determined that petitioner was the same driver who had struck the parked vehicle at Nineteenth and Riggs Place. Another motorist came upon the scene and stated that petitioner had also struck his parked vehicle and had left without revealing his identity. The officer testified that petitioner had a strong odor of alcohol on his breath, that his eyes were bloodshot, and that he was very unstеady on his feet. Petitioner gave a urine specimen approximately one hour after the collisions, and the hearing officer admitted, over objection, testimony about the results of an analysis of the specimen, which was shown to have contained .25 percent of alcohol.
Petitioner testified that he was particularly nervous that day and that he had taken certain medications for an ulcer condition at noon and before leaving work. He then went to a party where he had two drinks, leaving a little before 7:30 P.M. He said that he hit his nose on the steering wheel as he entered his car and that he drove with his handkerchief up to his nose and forehead. He stated that he became dizzy and did not remember much about the collisions. A doctor‘s letter was admitted explaining that petitioner‘s reaction to alcohol would be unpredictable because of his ulcer and the drugs he was taking. On the basis of this testimony the hearing officer concluded that petitioner had operated a motor vehicle in such a manner as to show a flagrant disregard for the safety of persons and property in that, while under the influence of intoxicating liquor, he had collided with two pаrked vehicles causing property damage and had left the scene of the accidents without revealing his identity.
Petitioner was subsequently found not guilty of all the charges filed against him in the Court of General Sessions. Certifications of the judgments were filed in the Department of Motor Vehicles and petitioner was granted a second hearing before the same official who had presided at the first. No further testimony was taken, but
The Traffic and Motor Vehicle Regulations of the District of Columbia provide in part that following conviction or forfeiture of collateral for certain traffic offenses, including driving while intoxicated and leaving after colliding, points will be assessed against the driver which can lead to the revocation or suspеnsion of his license. Traffic and Motor Vehicle Regulations of the District of Columbia, Part V, §§ 3, 4. A further provision of the Regulations, Section 5(a), states that:
“Notwithstanding any of the other provisions of this order, the Director of Motor Vehicles, after giving notice and opportunity for hearing, is hereby authorized in his discretion to suspend or revoke the motor vehicle operator‘s permit or operаting privilege of any individual who, in his opinion, * * * has driven a motor vehicle in such manner as to show a flagrant disregard for the safety of persons or property.”
It was pursuant to this latter provision that petitioner‘s license was revoked.
Petitioner contends that since his license could not have been revoked under the point system because he was not convicted of any offenses, respondent lacked the power to order the revocation under Section 5(a) for acts which could have led to the assessment of points if there had been a conviction. He claims that the point system would be meaningless if respondent‘s action were to be upheld. But we believe that it was precisely for circumstances such as those present in this case that Section 5(a) wаs promulgated. The purpose of revocation and suspension proceedings is not the punishment of the driver but the protection of the public from those who have demonstrated that their driving presents a hazard to life and property. Tillman v. Director of Vehicles and Traffic of the District of Columbia, D.C.Mun.App., 144 A.2d 922 (1958); Ritch v. Director of Vehicles and Traffic of District of Columbia, D.C.Mun.App., 124 A.2d 301 (1956). Regardless of how many points a driver may have accumulated or whether or not he has been convicted of a traffic offense, he may present such a danger to the community at large that he should not be allowed to continue to use the public highways. The point system was designed to facilitate the determination of who those drivers are, but it is by no means the exclusive method which respondent can usе to suspend or revoke licenses. Tillman v. Director of Vehicles, Etc., supra; Ritch v. Director of Vehicles and Traffic of District of Columbia, supra. If a person‘s driving demonstrates a flagrant disregard for the safety of persons or property, respondent may suspend or revoke his license to drive.
We cannot accept petitioner‘s argument that respondent could not take such action unless he had been convictеd of the offenses with which he was charged. There may be many reasons why a driver cannot or should not be punished criminally for the commission of certain acts. But these same acts may present sufficient evidence for a finding that the protection of the public requires that his driving privileges be taken away from him. In Tillman, supra, the driver was found guilty of speeding in a school zone, an offense for which only thrеe points could be assessed. Although twelve points must be accumulated before a license can be revoked under the point system, we affirmed the revocation of his license under Section 5(a) because the Director of Motor Vehicles had found that he had driven his vehicle
Petitioner further contends that the standard set forth in Section 5(a) is unreasonable and that the section is too vague to inform the public of the conduct it prohibits. But the section clearly proscribes conduct which shows such a flagrant disregard for the safety of persons and property that the well-being of the community will be endangered. No mere minor infraction will lead to a suspension or revocation under the section, for as we have stated, “The word flagrant * * * imports behavior which is open, notorious or wilful in nature. It means conduct which is shocking or outrageous.” Campbell v. England, D.C.Mun.App., 185 A.2d 726, 727-728 (1962). The section is certainly clear enough to warn drivers of the type of conduct which may result in the revocation of their driving privileges without having every proscribed action set out specifically. The fact that the regulation permits respondent to suspend or revoke a license when “in his opinion” the driver has shown а flagrant disregard for life and property does not make its enforcement unpredictable as petitioner contends. A revocation or suspension is permitted only in those cases where there is shown to have been a breach of the usual and reasonable regulations made concerning the control of traffic. LaForest v. Board of Commissioners, 67 App.D.C. 396, 92 F.2d 547, cert. denied 302 U.S. 760, 58 S.Ct. 367, 82 L.Ed. 588 (1937). The Dirеctor is required to act reasonably as we decided in the Campbell case, supra, where we reversed the revocation of a license under Section 5(a), stating that:
“The power vested in the Director of Motor Vehicles by the cited section is one to be exercised judicially, not arbitrarily. The facts must support such a finding, otherwise the finding lacks a legal basis, and reveals an abuse of discretion.” (Footnotes omitted.) (185 A.2d at 727.)
We turn now to petitioner‘s assertion that the results of the urinalysis were wrongfully admitted into evidence and considered by the hearing examiner in reaching his decision. In the case of Lister v. England, D.C.App., 195 A.2d 260 (1963), we ruled that unless such evidence were accompanied by the testimony of an expert qualified to interpret the results, it was inadmissible in a revocation proceeding. The hearing officer had attempted to apply the statutory presumption found in
Finally, petitioner claims that the urine specimen did not necessarily show its alcoholic content at the time that he was operating his automobile since it was given more than an hour later and was not analyzed until the next morning. The record is silent as to when the analysis was made, so we cannot properly consider this point. However, we repeat what we said to a similar argument in Novak v. District of Columbia, D.C.Mun.App., 49 A.2d 88 (1946), rev‘d on other grounds, 82 U.S.App.D.C. 95, 160 F.2d 588 (1947), where the specimen was taken “sometime after arrest” and was analyzed on the following day and again twenty days later (both tests showing the same alcoholic content):
“* * * the very nature of this specimen made improbable any change in it which would have disadvantaged dеfendant short of deliberate tampering with the bottle. * * *” (49 A.2d at 91.)
And it seems to us that the specimen was given in close enough proximity to the events in question to provide an accurate indication of the alcohol in petitioner‘s system at that time. Any delay would have been to his advantage.
Respondent‘s decision revoking petitioner‘s license because he had demonstrated a flagrant disregаrd for the safety of persons and property was amply supported by the evidence. Accordingly that decision is
Affirmed.
HOOD, Chief Judge (dissenting):
By Act of Congress of March 4, 1958,
In Lister v. England, D.C.App., 195 A.2d 260 (1963), we ruled that the above statute, being limited by its express terms to trials in court for the three specified offenses, had no application to a proceeding before the Director of the Department of Motor Vehicles for revocation of an operator‘s permit, and that the result of a chemical analysis of the operator‘s urinе could not be received in evidence in such proceeding unless accompanied by expert testimony of a witness qualified to interpret the result. A few months after our decision the Commissioners of the District of Columbia by amendment to the Traffic and Motor Vehicle Regulations adopted exactly the same evidentiary effect for the result of urine tests contained in the statute for hearings conducted by the Director of Motor Vehicles or by a hearing officer.
The Commissioners of the District of Columbia are authorized to make rules and regulations concerning the issuance, suspension and revocation of operator‘s permits [
From a practical viewpoint, I feel this regulation is inappropriate in this type of hearing. Ordinarily an administrative agency sits in a quasi-judicial capacity; but a hearing officer in cases like the one before us acts as both judge and prosecutor. The holder of the permit is called before the hearing officer to show why his permit should not be suspended or revoked. Under this regulation the individual will be required to carry the burden of overcoming “prima facie proof” that he was under the influence of intoxicating liquor at the time of the occurrence. I fear that “prima facie proof” in practice will be treated as absolute proof.