STATE of North Dakota, Respondent, v. Richard Walter SINNER, Petitioner.
Cr. No. 437.
Supreme Court of North Dakota.
April 13, 1972.
250 N.W.2d 495
George E. Duis, Fargo, for petitioner.
PAULSON, Judge.
Richard Walter Sinner [hereinafter petitioner] is applying to this court for a writ of habeas corpus under
The petitioner then applied to the District Court of Burleigh County for a writ of habeas corpus, which writ was issued and, after a hearing, was quashed on January 17, 1973. Petitioner now applies for an original writ of habeas corpus from this court.
The petitioner raises several issues in his application for a writ of habeas corpus. The principal issue is that the statutory procedure by which his driver‘s license was suspended by the Safety Responsibility Division of the North Dakota State Highway Department is unconstitutional as being violative of the Due Process Clause of the
In support of his contention, the petitioner cites the recent United States Supreme Court decision in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). In Bell, the United States Supreme Court dealt with Georgia‘s Motor Vehicle Safety Responsibility Act,
The petitioner also cites Reese v. Kassab, 334 F.Supp. 744 (1971), wherein a three-judge Federal District Court held that the Pennsylvania point system for driver‘s license suspension contravened the Due Process Clause of the
The decisions covering the issue of the constitutionality of suspending a driver‘s license without a pre-suspension hearing are not in accord. The Court of Appeals of Kentucky, in the case of Commonwealth of Kentucky, Department of Public Safety v. Thomas, 467 S.W.2d 335 (1971), held that the Kentucky statute which allowed discretionary suspension of a driver‘s license without a pre-suspension hearing was unconstitutional. That statute,
“The department . . . may immediately suspend the license of any person . . . with or without hearing, and with or without receiving a record of conviction of that person of a crime, whenever the department has reason to believe that:” [The statute then lists seven causes for suspension.]
The license of the driver in the Thomas case, supra, was suspended under
“The department may suspend the license of any resident upon receiving notice of the conviction of that person in another state of an offense there which if committed in this state would be grounds for the suspension or revocation of an operator‘s license. . . .”
The court in the Thomas case determined that there must be an evidentiary hearing prior to a discretionary suspension under
The Court of Chancery of Delaware, in the case of Broughton v. Warren, 281 A.2d 625 (Del.Ch. 1971), reached the opposite conclusion with regard to its discretionary suspension law.
“(a) The Department may immediately suspend the license . . . of any person without hearing and without receiving a record of conviction of such person of crime whenever the Department has reason to believe that such person— . . .” [The statute then lists six causes for suspension.]
“. . . it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.”
The Delaware court held that the driver‘s record in Broughton came within the purview of the emergency doctrine enunciated in the Bell decision and that a pre-suspension hearing was not required in order to comply with the requirements of due process. Taking judicial notice of the serious injuries and deaths occurring on our highways, the Delaware court stated in Broughton v. Warren, supra 281 A.2d at 629:
“The suspension of a driver‘s license, under the kind of statute and proceeding here involved, is not to punish the driver but to protect the public from those who have demonstrated that their driving presents a hazard to life and property.” Citing Bungardeanu v. England, 219 A.2d 104 (D.C.Ct.App.1966).
After considering the Broughton and Thomas decisions, we adopt the view expressed by the Supreme Court of Delaware in the Broughton case.
In the case of Kosmatka v. Safety Responsibility Division of the North Dakota State Highway Department, 196 N.W.2d 402 (N.D.1972), we held that a conviction for driving while intoxicated came within the purview of an emergency situation, under Bell v. Burson, supra, and that our statute providing for mandatory revocation upon such conviction,
In Kosmatka we cited the Broughton case, supra, and concluded that the factual situation existing in Kosmatka fell between the factual situations existing in Broughton and in Bell. We now hold, as did the Delaware court in Broughton v. Warren, supra, that a record of frequent driving violations constitutes an emergency situation under the Bell decision and that the public interest in removing an offender from the highways outweighs an individual‘s right to a hearing prior to suspension of his operator‘s license. In the instant case the petitioner‘s license was suspended under
Furthermore, the petitioner had an opportunity for a hearing each time that he was charged with the offenses for which he was ultimately convicted through forfeitures of bonds. He chose not to take advantage of these opportunities to contest the motor vehicle violation charges; or of the opportunity, when his license was suspended, for a post-suspension hearing provided him by the highway commissioner pursuant to
The petitioner also asserts that he did not receive proper notice of his license suspension, since the letter sent to him advising him of the suspension was not mailed to him by registered or certified mail as required by
” . . . The agency shall give notice of its decision or determination in any proceeding heard by it by delivering a copy of such decision or determination to all the parties to the proceeding either personally or by registered or certified mail . . . ” [Emphasis added.]
In addition, in the case of State v. Johnson, 139 N.W.2d 157 (N.D.1965), where the defendant driver claimed the State did not prove that such driver had received notice of suspension orders since they were addressed to him at Esmond, North Dakota, from which address he had moved to Minnewaukan, North Dakota, this court held such contention to be without merit on the ground that it is a driver‘s duty to keep the highway commissioner informed of any change in such driver‘s address. The court stated in the Johnson case, supra, in paragraph 1 of the syllabus:
“1. Where a defendant is served with order of suspension of his driver‘s license by the mailing of copy of such order to him at the address shown on his application for driver‘s license or address shown on such license, he cannot complain on the ground that he no longer lives at that address. The law requires the holder of a driver‘s license to notify the Highway Commissioner in writing of any change of address within ten days after such change.
Sec. 39-06-20, N.D.C.C. ”
We adhere to this holding in the Johnson case; thus the petitioner‘s argument in the instant case is not persuasive.
The petitioner next asserts that he has been twice put in jeopardy for the same offense, in contravention of the
“3. Suspension of a driver‘s license is an exercise of police power for the protection of the public rather than the imposition of an additional penalty; accordingly, usual guarantees against double jeopardy, as well as the statute of limitations, do not apply.”
“The question as to whether the revocation of a license because of an act for which the licensee has been convicted or because of the conviction itself is an added punishment has frequently been before the courts. The universal holding is that such a revocation is not an added punishment, but is a finding that by reason of the commission of the act or the conviction of the licensee, the latter is no longer a fit person to hold and enjoy the privilege which the State had theretofore granted to him under its police power. The authorities agree that the purpose of the revocation is to protect the public and not to punish the licensee.‘”
We accordingly determine that the petitioner in the instant case has not been twice put in jeopardy for the same offense.
Petitioner further asserts that his Minnesota conviction for speeding on March 31, 1971, should not be included in the four offenses committed within a two-year period needed for suspension under
“The commissioner may suspend or revoke the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this state, would be grounds for the suspension or revocation of the license of an operator.”
Sections
The petitioner asserts further that even if a post-suspension hearing is sufficient to satisfy the requirements of due process, the hearing provided in North Dakota is not in compliance with due process since the functions of judge, prosecutor, and jury are embodied in the highway commissioner or his agent. We find this contention to be without merit.
In 1 Am.Jur.2d, Administrative Law § 78, page 873, it is stated:
“The danger of unfairness is particularly great in an agency in which there is a high degree of concentration of both prosecuting and judicial functions, especially where the functions are combined in the same men. The courts have pointed out that in such situations the agency members must be zealous in the recognition and preservation of the right to a hearing by impartial triers of the facts, and such fusion of functions has been subjected to considerable criticism. However, the combination of functions has never been held to violate constitutional right or deny due process of law.”
As was stated in 1 Am.Jur.2d, Administrative Law § 78, at page 873, the combination of prosecuting and judicial functions has never been held to violate due process, and since the petitioner at no time requested a hearing before the State Highway Department, he now has no premise upon which to base his assertion that he would not have been accorded a meaningful hearing.
On July 26, 1972, the Burleigh County Court issued its order revoking the suspended sentence of petitioner. The suspended sentence was revoked because of petitioner‘s convictions subsequent to October 14, 1971, for traffic violations, which included speeding and operating a motor vehicle while petitioner‘s driver‘s license was suspended. Petitioner was ordered to commence serving his six-month sentence, but execution of such order was stayed for six months from July 26, 1972, to allow the petitioner to challenge the constitutionality of the statutory procedure under which his driver‘s license was suspended. This stay of execution was conditioned, among other things, upon petitioner‘s not operating a motor vehicle during said period of six months unless he first obtained a license to do so.
Petitioner contends that if the statutory procedure by which his driver‘s license was suspended is unconstitutional, he need not abide by a court order issued pursuant to a conviction for violation of such statutes, because such order would be null and void and of no effect. Having decided herein that the statutory procedure by which the petitioner‘s driver‘s license was suspended is constitutional, we need not consider this issue further.
For the foregoing reasons the writ of habeas corpus is quashed.
STRUTZ, C. J., and ERICKSTAD and KNUDSON, JJ., concur.
TEIGEN, Judge (concurring specially).
I concur in the result. However I do not agree that a conviction of driving while a person‘s operator‘s license is suspended constitutes an “emergency situation” as envisioned under Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Bell lays down a rule which is restricted to a situation where “a State seeks to terminate an interest such as that here involved.” The “situation here involved” in Bell concerns Georgia‘s Motor Vehicle Safety Responsibility statute which provides that an uninsured motorist‘s vehicle registration and driver‘s license are subject to suspension if he is involved in an accident and fails to post security to cover the amount of damages claimed by the aggrieved party unless he has filed a release from liability executed by the injured party or there has been an adjudication of nonliability. The United States Supreme Court in Bell found that Georgia‘s statute was liability related and, therefore, procedural due process required a determination of whether there was a reasonable possibility of a judgment being rendered against the driver as a result of the accident before the State could suspend the person‘s automobile registration and driver‘s license. The court, in its reasoning, stated:
“Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important fac-
tor in the State‘s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing.” Bell v. Burson, supra, 402 U.S. at 541, 91 S.Ct. 1586 at 1590, 29 L.Ed.2d at 96.
The court concluded that the State must provide a forum for the determination of the question of whether there was a reasonable possibility of a judgment being rendered against the driver as a result of the accident before his driver‘s license and vehicle registration could be suspended, and then stated:
“We deem it inappropriate in this case to do more than lay down this requirement.” Bell v. Burson, supra, 402 U.S. at 542, 91 S.Ct. at 1591, 29 L.Ed.2d at 96.
As analyzed in State v. Harm, 200 N.W.2d 387 (N.D.1972), our statutory scheme is not liability related, that is, it is not fault related.
Therefore under our statutory scheme, if an accident occurred while the motorist was driving while his license was suspended, the action taken by the commissioner in respect to that person‘s driver‘s license, or the filing of proof of financial responsibility to obtain a renewal or issuance of a driver‘s license by such person, is in no way fault or liability related as no security need be filed to cover damages, if any, resulting from the past illegal driving.
For these reasons it is my opinion that Bell does not apply and for reasons set forth in State v. Harm, supra, procedural due process does not require a presuspension hearing.