Swanson v. State, Department of Commerce & Regulation

agree majority that Although I SWANSON, misperceived Eugene the Internal

the trial court Leo Petitioner laws, I am convinced that such Appellant, Revenue significant factor error is immaterial. v. no appeal in this is that evidence Dakota, STATE of South DEPARTMENT trial presented to the trial court and the REGULATION, OF AND COMMERCE finding that there had been court made no Respondent Appellee. change modi in circumstances warrant 25-4-45; fication. ex rel. No. 15657. (S.D.

Dryden Dryden, Supreme Court of South Dakota. 1987); Gross, (S.D. Gross 1984); Tank, (S.D. Tank v. Dec. 1987.

1978). findings, such evidence and Absent improper for the trial court and

it was

majority the merit issues deal to address

ing Revenue laws. with Internal agree

I Henderson that the with Justice inap- attorney fees and costs is

award of

propriate in this case.

SABERS, (dissenting). Justice trial court held there was change of circumstances to:

sufficient

1) monthly support child increase $525, and

$375 to

2) claim minor children allow wife to exemptions

as for Federal income tax

purposes. (1), thus, appeal from

Husband did not argument change of circumstance Therefore, must

final. Husband establish its court abused discretion.

that the trial

Husband not and can meet Therefore, we should affirm the

burden.

trial court.

Judy prevailed have and she should fees, attorney’s awarded

should have been

tax, 15-17-7. Even and costs under SDCL prevail, I

though did not concur with she writing attorney’s Morgan’s

Justice

fees, tax, special and costs because circum-

stances here which warrant them. exist

him his driver’s license would be automati- cally provisions revoked under the of SDCL petitioned unless he for a 32-23-11 Department thirty days. within before request any hearing, He and the his Department revoked driver’s license for pursuant to 32-23-11. year, one Secretary also states that the This section Regulation may adopt and of Commerce (1) eligi- restricted licenses as to rules for determination; (4) (3) (2) application; bility; limitations; and, grounds for revocation. thereto, Secretary has Pursuant pro- adopted rule for restricted licenses viding part: person previously has been con- A who 32-23-1 or a violation of SDCL victed of under revoked whose license been provisions of SDCL 2-23-11 within the date of five-year period preceding eligible receive a re- refusal notified stricted license. He need not be privilege applying for such a of the of when notice of revocation is license mailed.

ARSD 61:19:01:02. 26,1986, appellant pled guilty August On Bradsky Brad- Bradsky & A. David arising from his charge of DWI to the appel- and sky, Rapid City, petitioner for second arrest. Pursuant lant. charging him II of the information Count Gen., Pierre, Coit, Atty. Richard D. Asst. dismissed. with a second offense was Roger A. Tel- appellee; respondent and Upon receiving notice of the second DWI Pierre, Gen., Atty. on brief. linghuisen, appel- Department revoked period of one lant’s driver’s license for a WUEST, Chief Justice. 1986, August year to commence Swanson, appeals a cir- Appellant, Leo This action date of his second conviction. affirming a De- cuit court decision 32-12-52.1 pursuant to SDCL was taken (De- Regulation and partment of Commerce provides: refusing to issue him a partment) decision reg- Department of commerce license. We affirm. restricted driver’s the license or shall revoke ulation 2, 1985, August appellant was con- On upon receiving notice of any operator Influ- Driving Under the victed of While conviction for a violation operator’s an (DWI) Beverage Alcoholic ence of an 32-23-1 to the extent provisions of § April 32-23-1. On violation of SDCL have operator’s privileges should that the charged with the he was arrested revoked, judgment and sen- if the Following the second second DWI offense. court failed to invoke of the trial tence arrest, test of a chemical refused provisions of 32-23-2 mandatory §§ Implied provisions under blood operator or the 32-23-4, inclusive, 32-23-10. Consent Law. SDCL with the convicted consistent had been commerce department records appel- Department was informed added). (Emphasis regulations. 16,1986 notified April lant’s refusal on McGow legitimate state interest. thers appellant submitted On October 420, 425-426, Maryland, an v. a re- 366 U.S. application to the 1101, 1105, pursuant to SDCL 6 L.Ed.2d driver’s S.Ct. stricted Dept. Transp., Department denied Veach Iowa 32-23-11. ineligible for a (Iowa he was grounds 1985), on plication petitioner N.W.2d 248 chal 61:19:01:02. license under ARSD lenged constitutionality of an adminis ineligible for regulation he was Under adopted by depart trative rule the state’s (1) test of Refusing chemical reasons: two transportation ment of which declared ineli (2) five DWI within and his second blood gible permits, persons op for work whose years. erating privileges were revoked for a refus to a al to submit chemical test. Persons vio- 61:19:01:02 Appellant claims ARSD testing to who submitted chemical were process clause of the State lates the due eligible temporary permit work vague- of and Federal Constitution because if the chemical even test resulted a find disagree. We ness. ing The Iowa of intoxication. if is unconstitutional A civil statute Court, application of the traditional ra convey sufficient def language does not its constitutionality, tional test of de basis conduct, warning proscribed when inite of so, doing stated: clared the rule valid and understanding or by common measured motorist to re- The of arrested necessarily causing persons to practice, testing fuse chemical is not mandated meaning applicability. guess its and at Constitution, ‘simply is a matter Zoning Adj. Bd. Dav Greenawalt legisla- grace bestowed the ... (Ia.1984). A state enport, ture.’ ... pass the regulation must administrative public safety muster as a state stat interest is same constitutional The State’s Law substantially by treating people ute. Am.Jur.2d Constitutional served testing differently refuse chemical who §§ testing. to people who submit is clear both its ARSD 61:19:01:02 obtaining strong interest State has a clearly The rule meaning applicability. and evidence of the amount the best available (1) who, persons ineligible have: holds all at alcohol in a driver’s bloodstream of a violation of previously convicted been results, Accurate test the time of arrest. years, five or had 32-23-1 within evidence in positive, provide if valuable refusal to submit license revoked for their legislature prosecution, and the criminal case, appellant In this to a chemical test. high priority ‘the enforce- given to ineligible criteria. under both prohibiting operation of a of laws ment regulation argues Appellant further the influence while under motor vehicle unreasonable, arbitrary and fundamen- having certain amount of while ... or regulation ar- argues He tally unfair. ... in the blood.’ alcohol against bitrarily unfairly discriminates and challenged encour- rule here The DOT refuse to submit to a chemical those who to chemical test- ages drivers to submit is unreasonable because it does test and cooper- citizen ing thereby facilitates and hearing persons for those provide a not highway in the enforcement of ation who are denied a restricted because permit of a work safety. denial they ineligible are under ARSD 61:19:01:02. refusal to submit upon a driver’s disagree. We simply method testing is one chemical govern by a Differential treatment goal. legitimate achieve that used to agency persons who refuse mental agree the rationale Id. at 250. We testing persons who submit chemical Court. the Iowa DWI, testing and are convicted chemical regulation is Appellant argues the constitutionally permissi is reasonable it constitutionally because unreasonable test, a class the rational basis ble. Under provide rationally if fur- does it distinction will survive DWI, convicted of previously been he was for a restricted license. We application his quite reluctant to apparently enter a disagree. DWI. Pursuant to a second-offense to a govern the case where the This bargain, he entered a depriving someone of a vested lib ment is DWI, in return for which the first-offense property right procedural without erty or charge was dismissed. second-offense regu appellant’s process. this case due him to surrender magistrate required revoked, already lar license had days, thirty issued him driver’s license for requesting issuance of a restricted he was period, ordered for that work license, i.e., a new license. Where the weekly Anony- Alcoholics attendance question whether a license should issue time, extended meetings mous for an ordinarily initially, process due does thirty days jail, in him to serve sentenced hearing. Sag require opportunity for a upon payment of the fine suspended Ass’n., Valley Trotting Inc. v. Mich. inaw compliance the court order. and his with Com’r, (Mich.Ct.App. R. 1978). this was not a revocation of Department Since now the Com- Consider driving appel privileges but a denial of Regulation merce and of this State. It request driving privileges, once, there lant’s for suspended his driver’s license not fore, governmental “taking” was in no Department initially revoked twice! The required. and no 19, 1986, volved year, May his license for a receiving appellant after notice that had respect I Justice Henderson’s per refused to take a blood-alcohol test dissent, appeal but the issue on is whether not, appellant ap- SDCL 32-23-11. As process, A.R.S.D. 61:19:01:02violates due this, parently, is little we can contest there guilty. my a not withdrawal of do. He did not use the administrative ave- opinion we should stick to the issues on open suspension, nues to him. The second appeal. my dissenting opinion in See again year, by for full was made (S.D.1987). Jones, N.W.2d 366 appellant pled guilty after be- magistrate, fore the and ran from the date MORGAN, MILLER, SABERS and August JJ., of his 1986. This concur. suspension predicated on the fact that HENDERSON, J., dissents. appellant was convicted of DWI twice in HENDERSON, (dissenting). Justice statutory period set in out SDCL 32- Court, As I often see in this critical facts 23-4. majority opinion have been omitted in the Department, suspen- in this second require specially. Legal

which me to write sion, 32-12-52.1, relied on SDCL which au- briefs, by the nor authorities not furnished it to override trial thorizes courts which majority opinion, must discussed impose more lenient sentences than those Weighing attend the these omitted facts. required by other DWI It later statutes. and, a different result authorities creates appellant’s application refused to consider therefore, respectfully I dissent. pursuant for a limited license to ARSD 61:19:01:02, rancher, Appellant living categorically excludes is a bachelor area, ap- transportation a remote from consideration for such licenses all to whom food, medication, supplies plicants convicted of parts and ranch DWI or violation implied five necessity. permit, is a vital To consent statute within lose work license, very years previous to a current test refusal. addition to his driver’s is a themselves, penalty. By severe these facts case, inconsist- In this we are treated to might simply sympathy, well be a matter of State, positions ent and discordant legal weight. of little offering ap- through Attorney, the State’s sentence, Add, however, ap- pellant a lenient which was the uncontested fact that a sentence guilty proved by magistrate, entered a before law- DWI; but, magistrate magistrate propriate trained court of to a first-offense thereafter, per 32- Having Department, court of this State. (S.D.1983) (citing Solem, 12-52.1, the effect of the Watkins v. then nullified (8th own, Cir.1978)). F.2d That imposed its more sentence and court’s of covenant was inadvertent breach is irrel- severe, penalty. One instrument Santobello, evant. 404 U.S. at appear totally agreeable to be State would S.Ct. at 30 L.Ed.2d at 433. bargain, another whereas totally anti- agency of the State takes a facts, Looking at these position. posture to the first thetical Attorney magis- misled. The State’s up trate lived to their ends of the dismiss, out-of-hand, plea- I do not Department, an arm but the of the same Appellant bargaining had bargain issue. Dakota, sovereign, the State of South re- State, securing guilty chips. The plea bargain nullity. duced the to a itself the time and trouble of a plea, saved State, through Department, took back consideration trial. This is not insufficient through it him what had offered the State’s plea bargain. generally See Santo Attorney magistrate. and ratified York, 92 S.Ct. bello v. New U.S. Obviously, injustice it is a manifest awhen 30 L.Ed.2d 427 United agreement defendant enters into an Court, had States sovereign reneges agreement. on the say plea bargaining, about after this to concerned, sovereign far as I am the As is analyzing governments: benefits to the sovereign. sovereign the cannot do phase process the of criminal This way employing in business this our courts adjudicative element in- justice, and the giv- administrative action to controvert its accepting plea guilty, in a must herent up any degree en word and end by safeguards to insure the be attended honor. cannot We have dishonorable reasonably is due in the defendant what reneging government. We cannot have on Those circumstances will circumstances. plea bargains. teaching is the the This that when a vary, but a constant factor is Supreme Court in United States Santobel- any significant degree on a plea rests in plea Having secured this rancher’s lo. agreement prosecutor, promise or of the proceed- Dakota guilty, the State of South part it can be said to be so that just An old rancher ed to break its word. consideration, prom- or such inducement figure can’t this out and neither can I. fulfilled. ise must be past cases have indicated that there is Our 499, at 92 S.Ct. at 30 L.Ed.2d 404 U.S. judicial proceed- separation a between at 433. proceedings. ings and administrative See recently analysis This was summarized (S.D.1986); Malone, In re 387 N.W.2d Gonzalez-Sanchez, 825 v. United States (S.D.1979). Mehrer, re In (1st Cir.1987): F.2d “Contractual convincing in cases are not this con- These they are rele- principles apply insofar as allega- text. The Mehrer case involved the determining government what the vant punishment a conviction and tion that DWI If the defendant ‘owes’ the defendant. punishment under the precluded separate bargain, up to his end of the lives dealt with an implied consent law. Malone promises.” government is bound to its implied penalty inflicted where the consent omitted.) Lohnes, (Footnotes In v. State charged second- was not with a defendant (S.D.1984), this Court DWI, 344 N.W.2d there was no bar- offense but invalidating rule in applied Here, looking Santobello we are at a gain involved. DWI, en- grounded on a defendant’s a conviction for a second subsequent punishment tering guilty plea based on a misunder- infirm. a DWI conviction is the second where standing. hinged magistrate gave its decision on Attorney This Court The State’s offer, N.W.2d expectations. appeilant they had no the defendant’s what concept that in its per is The State at 689. The fundamental SDCL 32-23-3. effect, “nothing.” totality of the circum- offered we must look to the However, gave up jury trial. a whether a stances to determine he has dis- voluntarily knowingly entered. This rancher believes System be- honorably by treated the Court 720 n. 2 Bolger, 332 N.W.2d v. my writing. plea bargain precedent which he honest- See State cause of into, Jones, (S.D.1987); 367-68 whereby he was receive ly entered Johnson, permit Bayer DWI and a work 449-50 only a first offense (S.D.1984). why I well can understand this to drive. why plea a bar- rancher cannot understand subsequent This Court held that ac- handshake) (in days a the old it was gain parole by duly agency, a tion authorized being by honored the State South board, may affect a sentence’s dura- agency of an Pierre Dakota as result tion, destroy plea bargain is sufficient to import plea bargain. shredding the of the disappoint a where that action could de- rancher, Furthermore, this front of expectations. fendant’s reasonable judge rancher that court told this he circuit Lohnes, 344 N.W.2d at 689. While the necessary requirements met all of here, subsequent contemplated State action permit. him to a entitle restricted Department’s a limited li- denial of judge further and told circuit court went cense, integral part an of the sen- govern- lawyer that the the rancher Lohnes, only tence as was case in this agency relying outdated ment Here, appel- aggravates the unfairness. in the regulation. This all found record received, surface, what lant he If this was proceedings below. for, asked was later ambushed mind of enough up to build in the Lohnes, Department. In least the de- to make a rancher that was entitled fendant forewarned. permit driving bargain and obtain a States the United Court remanded work, any judge criticized court court, case to the state as the state denial of blanket was better situated to decide the court regula- to its government agency pursuant remedy, propriate either: that, expressed the court’s tions and a) plea Specific performance to a work opinion, the rancher was entitled agreement, or After all permit under circumstances. b) allowing the defendant withdraw buildup, spark psychological plea. gavel mightily, for struck him 262-63, 404 92 S.Ct. at U.S. that, judge though told even 499, 30 L.Ed.2d also ABA at 433. See feelings, all of harbored these beliefs 14-2.1(b)(2d for CriminalJustice Standards he, judge, did circuit court 1980), and 2 ed. Wharton’s Criminal Proce- authority grant the rancher’s have the 19J5), (C.E. 12th ed. dure 340 Torcía § application for a license. There plea there has been a withdrawal where officials, privity government between Here, bargain injustice. manifest Mehrer, 273 many circumstances. N.W.2d lacking legal was itself so foundation (Zastrow, J., J., Morgan, at 197-99 poisons that it cannot be enforced. It People concurring specially); generally see However, justice. system of neither can Staten, Ill.App.3d 110 Ill.Dec. sentence, second guilty N.E.2d As the stand, Departmental license revocation all misrepresenta- through secured which stemmed from that tainted tion, innocent, can- however the conviction Nonetheless, bargain. this neither affects It be that there may not stand. well the initial revocation here, may as he little benefit the later limited nor denial of the remand, but again convicted well be historically recog- because this Court has aside, should set even have been separation administrative nized sentencing, per SDCL 23A-27-11. after agencies power on revocation of courts argued matter While this 547; Malone, 387 N.W.2d license. See peal, right to fair trial is a constitu- Mehrer, 273 194. S.D.Const, issue, VI,

tional art. raisa- § court, Twice, illegal in an Long ago, this held sponte. ble sua most Court “ has, case that ‘the doctrine ultra recently, sponte, this Court sua raised contract issues, corpora- municipal there is vires does not absolve important so constitutional of common hones principles from the tions ” Independent Slagle Elk Point ty.’ Dist., 78, 166 N.W. S.D. Sch.

Consol. (citation omitted). apply here. State cannot should

same totally misleading a guilty plea by

secure

defendant. OF the STABIO

In re CANCELLATION RIGHT

DITCH WATER ON

SPEARFISH CREEK.

No. 15600. of South Dakota. Court 23, 1987.

Dec.

Case Details

Case Name: Swanson v. State, Department of Commerce & Regulation

Court Name: South Dakota Supreme Court

Date Published: Dec 23, 1987

Citation: 417 N.W.2d 385

Docket Number: 15657

Court Abbreviation: S.D.