State v. DufaultState v. Dufault
- Reporters:
- , ,
- Before:
- Miller
Lead Opinion
[¶ 1.] Criss Sсott DuFault, who pled guilty to second offense driving under the influence of alcohol, a violation of
FACTS AND PROCEDURE
[¶ 2.] DuFault, age 47, was arrested for DUI on July 28, 2000 at approximately 5:30 p.m. after a citizen called the Hand County sheriffs office to report a car that was “all over the road” near Miller, South Dakota. He failed field sobriety tests and admittеd to having had three drinks within an hour. He provided a blood sample which later analysis revealed a blood alcohol content of .311 percent. This is three times over the “legal limit.”
[¶ 3.] DuFault appeared before the trial court on October 23, 2000 and pled guilty to DUI second offense, a class 1 misdemeanor.
[¶ 4.] The State аdvised the court that DuFault had eight DUI arrests since 1988, however only one fell within the five-year statutory period provided by
6/88 — 60 days suspended sentence and fine
11/88 — 60 days in the state penitentiary
7/90 — 120 days in county jail
5/95 — dismissed by prosecutor
11/95 — serve 15 days of suspended one-year sentence, fine, and loss of driver’s license for one year
[¶ 5.] The Department of Motor Vehicles records also indicated his driver’s license had been revoked for 25 years in 1990, but in February 2000, the Depart.ment received an order from a judge reinstating it. Five months later, in July 2000, DuFault was arrested for driving under the influence, the event underlying this appeal. When asked, DuFault told the trial court he could not explain his history of drinking and driving.
[¶ 6.] Immediately prior to sentencing, DuFault quit his job as a journeyman plumber in Pierre, complеted substance abuse treatment and was seeking an aftercare program. He had completed similar programs twice before. He had no explanation when the court asked him why he believed treatment would work this time. The court indicated its concern for the safety of thе public and protecting them from DuFault’s drinking and driving and stated, “Mr. DuFault, for a record like yours it’s just dangerous to have you on the streets. You’re going to kill somеbody.” The court then sentenced DuFault to a year in jail and revoked his driver’s license for 15 years. DuFault appeals the revocation period.
[¶ 7.] DuFault claims any revocation period greater than one year exceeds the trial court’s authority under
[¶ 8.] If error is to be found in this 15 year revocation, it can only be by plаin error. Where error has not been preserved by objection or otherwise, our inquiry is limited to whether the court committed plain error. State v. Satter, 1996 SD 9, ¶ 11, 543 N.W.2d 249, 251. Under thе plain error rule, DuFault bears the burden of proving prejudicial error, and we will invoke the rule only “in exceptional circumstances,” such as, where a miscarriage of justice has occurred because the defendant is innocent or because the error “may seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Nelson, 1998 SD 124 at ¶ 8, 587 N.W.2d at 443. For the following reasons, DuFault fails to justify the application of рlain error in this case.
[¶ 9.] We note that
If conviction for a violation of§ 32-23-1 is for a second offense, such person is guilty of а Class 1 misdemeanor, and the court shall, in pronouncing sentence, unconditionally revoke the defendant’s driving privilege for a period of not less than one year. However, upon the successful completion of a court-approved alcohol treatment program, the court may permit the person to drive fоr the purpose of employment and may restrict the privilege by the imposition of such conditions as the court sees fit. If such person is cоnvicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than three days, which sentence may not be suspended.
(emphasis added). Clearly, the trial court had no statutory authority to revoke Du-Fault’s driver’s license for any length of time less than one year. By the plain language of the statute, it logically follows that the trial court had the statutory authority and mandate to revoke his driver’s license for a period of one year or greater. The trial court did so. There is no statutory “cap” on the court’s discretion in fashioning an appropriate revocation period under this statute.2
[¶ 10.] In State v. Groethe, 439 N.W.2d 554 (S.D.1989), we modified a sentence that revoked the defendant’s driver’s license for the remainder of his life, citing
[¶ 11.] A review of the circumstancеs of this case shows DuFault’s continued disregard for the law, two previous substance abuse treatments, prior incarcerations in jail and the pеnitentiary, and the court’s expressed concern for public safety. As the State notes in its brief, nothing thus far has captured DuFault’s attention. No errоr, plain or otherwise, has been shown on this record. We affirm.
[¶ 12.] MILLER, Chief Justice, AMUNDSON, and KONENKAMP, Justices, concur. [¶ 13.] SABERS, Justice, concurs in part and dissents in part.Notes
. This statute provides:
No previous conviction for, or plea of guilty to, a violation of§ 32-23-1 occurring more than five years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense. However, any period of time during which thе defendant was incarcerated for a previous violation may not be included when calculating if the time period provided in this section has elapsed.
DuFault‘s 15-day jail sentence in 1995 did not preclude application of this statute.
. We note that the 2000 Legislature expanded thе length of time a driver‘s license could be revoked for a person who causes the death of another while drinking and driving from two years to “such рeriod of time as may be determined by the court.”
Concurrence Opinion
(concurring in part and dissenting in part).
[¶ 14.] I agree in part but I would modify the 15 year driver’s license revocation to add: “... or until the further ordеr of the circuit court upon adequate proof of alcohol rehabilitation.”
[¶ 15.] I believe this modification provides some positivе incentive to try to rehabilitate an otherwise hopeless case. In addition, it makes clear that the circuit court has the power to reinstate the driver’s license even after the expiration of one year.
[¶ 16.] It is not necessary to show error, it is just an improvement on the sentence. As stated in Groethe by an almost unanimous court: “We believe that such a provision will comport with the views that sentencing should be consistent with rehabilitation.” Id.