The district court adjudicated Dale Bah-renfuss an habitual traffic offender under Iowa Code section 321.555(2) (1993) even though Bahrenfuss also met the requirements for an habitual offender under sectiоn 321.555(1). The court ordered the department of transportation (department) to issue Bahrenfuss a temporary restricted license pursuant to Iowa Code section 321.215(2). The department brought this certiorari action challenging the district court’s habitual offender determination and the order to issue a temporary restricted license. The department’s petition for writ of certiorari was granted. We sustain the writ.
On January 18, 1994, the Poweshiek county attorney filed a petition for an habitual offender determination under section 321.555(1) against Dale Bahrenfuss. Thе abstract of conviction record attached to the application showed that within a six-year period Bahrenfuss had two convictions for driving while under suspension or revocation and one conviction for operating while intoxicated (OWI) thus qualifying him as an habitual traffic offender under section 321.555(1).
The county attorney and Bahrenfuss subsequently entered into a stiрulation under which Bahrenfuss agreed to be adjudicated an habitual offender under section 321.555(2), which would permit him to apply for a temporary restricted license. On the basis of the stiрulation, the district court entered an order determining that Bahrenfuss was an habitual traffic offender under section 321.555(2) and directed the department to grant him a temporary restricted liсense.
The department filed this petition for writ of certiorari challenging the district court’s authority to adjudicate Bahrenfuss an habitual offender under subsection two of section 321.555 when hе qualified for a determination under subsection one. Certiorari lies when the district court has exceeded its jurisdiction or has acted illegally. Iowa R.Civ.P. 306;
Whitlock v. Iowa Dist. Court,
The parties do not dispute that if Bahren-fuss must be adjudicated an habitual offender under section 321.555(1), he is ineligible for a temporary restricted license.
See State v. Iowa Dist. Court,
Section 321.555 provides:
As used in this division, “habitual offender” means any person who has accumulated convictions for separate аnd distinct offenses described in subsection 1, 2, or 3, committed after July 1, 1974, for which final convictions have been rendered as follows:
1. Three or more of the following offenses, either singularly or in combination, within a six-year period:
a. Manslaughter resulting from the operation of a motor vehicle.
b. Operating a motor vehicle in violation of section 321J.2 or its predecеssor statute.
c. Driving a motor vehicle while the person’s motor vehicle license is suspended or revoked.
d. Perjury or the making of a false affidavit or statement under oath to the department of public safety.
e. An offense punishable as a felony under the motor vehicle laws of Iowa or any felony in the commission of which a motor vehicle is used.
f. Failure tо stop and leave information or to render aid as required by sections 321.261 and 321.263.
2. Six or more of any separate and distinct offenses within a two-year period ' in the operation of a motor vehicle, which are required to be reported to the department by section 321.491 [“any provision of this chapter or other law regulating the operation of vehicles on highways”] or chapter 321C [interstate drivers license compacts], except equipment violations, parking violations as defined in section 321.210, violations of registration laws, viоlations of sections 321.445 and 321.446, operating a vehicle with an expired license or permit, failure to appear, weights and measures violations and speeding violations of less than fifteen miles per hour over the legal speed limit.
Proceedings to determine whether a person is an habitual traffic offender are civil actions.
State v. Peterson,
The department argues that the distriсt court is required to adjudicate a person an habitual offender under subsection one if the person meets the requirements therein. We agree. This court has stated that “[wjhen the district court finds at the conclusion of a show cause hearing that a person is a [subsection one] habitual offender, the court is
required
to enter an appropriate judgment revoking the person’s operator’s license for a period of not less than two nor more than six years.”
Peterson,
We disagree with Bahrenfuss’s contention that the county attorney has discretion over which type of adjudication to pursue. The purpose of the habitual traffic offender statute is “ ‘to protect the public from those drivers who refuse to observe the rules of prudence and safety.’”
Peterson,
Additionally, we find thе statutory provisions mandatory in nature and not subject to a construction which would authorize county attorney discretion.
See
Iowa Code § 331.756 (“County attorney shall: ... (58) At the request of the director of transportation, petition the district court to enforce the habitual offender law as provided in section 321.556.”); Iowa Code § 321.556 (upon receiving abstract, the county attorney “shall file a petition”);
Schmidt v. Abbott,
In light of the foregoing, we conclude that if a person fits within the description of a subsection one habitual traffic offender, that person cannot be adjudicated an habitual offender under subsection two. This construction of section 321.555 promotes the public safety purpose and the legislature’s apparent intent to differentiate between types оf habitual offenders.
We hold the district court did not have authority to adjudicate Bahrenfuss an habitual offender under section 321.555(2) because Bahrenfuss qualified as an habitual offender under section 321.555(1). Consequently, the order to issue a temporary restricted license was also erroneous.
We sustain the writ and vacate the district court’s habitual offender adjudication under section 321.555(2) and its order to the department to issue a temporary restricted license to Bahrenfuss.
WRIT SUSTAINED.