10/11/73 The State of Washington, v. Richard R. Scheffel et al.
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF WASHINGTON
[2] The State of Washington, Respondent,
v.
[3] Richard R. Scheffel et al., Appellants
[4] No. 42637
[5] 514 P.2d 1052, 82 Wash. 2d 872
[6] October 11, 1973
[7] Appeal from a judgment of the Superior Court for Spokane County
No. 205814. William H. Williams, J., entered May 30, 1972.
[8] Petition for Rehearing Denied December 12, 1973.
[9] SYLLABUS
[10] Prosecutions under the habitual traffic offender act. The
defendants appeal from convictions and revocations of driving
privileges.
BLUE BOOK CITATION FORM: 1973.WA.318 (http://www.versuslaw.com)
[11] APPELLATE PANEL:
[12] En Banc. Hunter, J. Hale, C.J., Finley, Rosellini, Hamilton,
Stafford, Wright, Utter, and Brachtenbach, JJ., concur.
[13] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HUNTER
[14] These are consolidated cases in which the appellants
(defendants), Richard R. Scheffel and Hideo Saiki, raise several
constitutional objections to the Washington Habitual Traffic Offenders
Act, RCW 46.65 (effective August 9, 1971).
[15] The facts as stipulated to by counsel are as follows. On
February 10, 1972, the defendants were ordered to appear in the Superior
Court for Spokane County to show cause why they should not be barred as
habitual offenders from operating motor vehicles on the highways of the
state. Subsequent to the signing of the order, the defendants were each
served with the order to show cause and with a complaint for habitual
offender status.
[16] The defendant, Scheffel, was alleged to be an habitual traffic
offender on the basis of three distinct convictions of driving while
under the influence of alcohol. The respective dates of such alleged
convictions were September 1, 1970, December 11, 1970, and October 2,
1971. The defendant, Saiki, was also alleged to be an habitual traffic
offender on the basis of three distinct convictions of driving while
under the influence of alcohol. The respective dates of the alleged
convictions were May 4, 1968, December 6, 1970, and August 21, 1971.
[17] At the hearing, both defendants were represented by counsel who
submitted supporting memoranda of law, presented testimony and argued
orally. The court had before it the records, files, and testimony in
this cause.
[18] After considering respective counsel's argument as to the
constitutional invalidity of the Washington Habitual Traffic Offenders
Act, RCW 46.65, the testimony of the defendants and the evidence
presented, the trial court upheld the validity of the act, held the
defendants to be habitual offenders, and revoked their licenses for the
statutory period.
[19] We accepted direct appeal here because of the fundamental issues
requiring ultimate determination by this court.
[20] Before discussing the contentions raised by the defendants, a
brief review of the pertinent provisions of RCW 45.65 is necessary in
order to fully understand the arguments of the parties.
[21] The policy of the act is stated in RCW 46.65.010, which
provides:
[22] It is hereby declared to be the policy of the state of
Washington:
[23] (1) To provide maximum safety for all persons who travel or
otherwise use the public highways of this state; and
[24] (2) To deny the privilege of operating motor vehicles on such
highways to persons who by their conduct and record have demonstrated
their indifference for the safety and welfare of others and their
disrespect for the laws of the state, the orders of her courts and the
statutorily required acts of her administrative agencies; and
[25] (3) To discourage repetition of criminal acts by individuals
against the peace and dignity of the state and her political
subdivisions and to impose increased and added deprivation of the
privilege to operate motor vehicles upon habitual offenders who have
been convicted repeatedly of violations of traffic laws.
[26] To achieve this goal, RCW 46.65.020(1) provides for the license
revocation of anyone who, within a five-year period receives
[27] Three or more convictions, singularly or in combination, of the
following offenses:
[28] (a) Negligent homicide as defined in RCW 46.61.520; or
[29] (b) Driving or operating a motor vehicle while under the
influence of intoxicants or drugs; or
[30] (c) Driving a motor vehicle while his license, permit, or
privilege to drive has been suspended or revoked; or
[31] (d) Failure of the driver of any vehicle involved in an accident
resulting in the injury or death of any person to immediately stop such
vehicle at the scene of such accident or as close thereto as possible
and to forthwith return to and in every event remain at, the scene of
such accident until he has fulfilled the requirements of RCW 46.52.020.
[32] RCW 46.65.030 requires that the director of the Department of
Motor Vehicles certify transcripts of any person coming within the
definition of an habitual offender to the prosecuting attorney of the
county in which the person resides. Under RCW 46.65.040 the prosecuting
attorney is required to file a complaint against the person named in the
transcript. Pursuant to RCW 46.65.050, the court in which the complaint
is filed enters an order to the defendant to show cause why he should
not be barred as an habitual offender from operating any vehicle on the
highways of this state.
[33] The hearing is governed by RCW 46.65.060, which basically limits
the hearing to determining whether or not the person named in the
complaint is the person named in the transcript and whether or not the
person is an habitual offender as defined. If the court answers both of
these questions in the positive, then the defendant's license is revoked
for 5 years. After 2 years one whose license has been suspended may
petition for the return of his operator's license.
[34] With this brief outline of the pertinent provisions of the act
in mind, we turn to the issues raised by the parties.
[35] The defendants' first contention is that the hearing, as
restricted by the trial court and by the apparent language of the act,
constitutes a denial of procedural due process guaranteed by the
fourteenth amendment to the United States Constitution. We disagree.
[36] [1, 2] The possession of a motor vehicle operator's license,
whether such possession be denominated a privilege or right, is an
interest of sufficient value that due process of law requires a full
hearing at some stage of the deprivation proceeding. Ledgering v. State,
63 Wash. 2d 94, 385 P.2d 522 (1963). The purpose of the hearing will be
a controlling factor in determining what specific procedures are
appropriate. Olympic Forest Prods. v. Chaussee Corp., 82 Wash. 2d 418,
511 P.2d 1002 (1973). The purpose of the hearing in the instant case is
to determine whether or not the individual is an habitual offender as
defined by the legislature. The procedure adopted by the legislature in
the instant case, and followed by the trial court, is designed to insure
that the individual's license is not wrongfully revoked. It is designed
to insure that the individual did in fact accumulate the number of
violations he is charged with and that he does in fact come within the
legislative definition of an habitual offender. As such the hearing does
not appear to be in violation of the due process provision of either the
federal or state constitution.
[37] The defendants argue, however, that the hearing is too limited
in scope. The hearing, they argue, should include consideration by the
court of not only the law, but also of the facts bearing upon the merits
of the suspension, including the facts and circumstances bearing upon
the wisdom of the suspension in keeping with public safety, accident
prevention, and owner and driver responsibility. We disagree.
[38] [3] The prevention of the habitually reckless or negligent from
operating their vehicles upon the public highways is well within the
police power of the legislature. Gnecchi v. State, 58 Wash. 2d 467, 364
P.2d 225 (1961). The wisdom of the revocation or suspension in keeping
with public safety, accident prevention and owner-driver responsibility
has been determined by the legislature. Once an area of the law is
conceded to be subject to the state's police power, the wisdom,
necessity or expediency of the particular legislative enactment is not
subject to judicial review. Petstel, Inc. v. County of King, 77 Wash. 2d
144, 459 P.2d 937 (1969).
[39] The defendants further argue, however, that Ledgering v. State,
supra, and Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586
(1971), compel the consideration of the merits of the suspension on an
individual basis. We disagree.
[40] In the Ledgering case we were discussing the discretionary power
to suspend motor vehicle operators' licenses conferred upon the
director of the Department of Motor Vehicles, and the review of the
director's exercise of his discretion. The case is thus distinguishable
upon the facts and the law applicable to the facts of that case.
[41] Bell v. Burson, supra, dealt with the hearing afforded an
uninsured motorist who failed to post security to cover the amount of
damages after an accident. The hearing provided for under the Georgia
law did not consider the question of liability and the court held that
the state had to look into the question of liability since liability, in
the sense of an ultimate judicial determination of responsibility,
played a crucial role under the state's statutory scheme for motor
vehicle safety responsibility.
[42] [4] The ultimate judicial determination which plays the crucial
role under this state's statutory scheme is whether or not the defendant
had previously been convicted of driving while under the influence of
intoxicating liquors and/or drugs. Due process is accorded the defendant
for the act provides that the defendant may appear in court and contest
any of the allegations of the state as to the prior convictions. As the
trial court stated, procedural due process could not be more complete
than it is in these cases determining the ultimate question of the
extent of the defendants' prior convictions.
[43] [5, 6] The defendants next contend that the act as applied is
retrospective and therefore unconstitutional because by relying upon
convictions prior to the act's effective date it imposes a new penalty,
unfairly alters one's situation to his disadvantage, punishes conductinnocent when it occurred, and constitutes an increase of previously
imposed punishment. We disagree, and answer these contentions in the
order stated. In Hammack v. Monroe St. Lumber Co., 54 Wash. 2d 224, 229,
339 P.2d 684 (1959), we quoted Society for the Propagation of the Gospel
v. Wheeler, 22 Fed. Cas. 756 (No. 13,156) (Cir. Ct. N. H. 1814), with
approval for the following with regard to retroactive laws:
[44] ". . . Upon principle, every statute, which takes away or
impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, in respect
to transactions or considerations already past, must be deemed
retrospective; . . ."
[45] Each of the defendants in the instant case had accrued two
convictions prior to the effective date of the act. At that time they
were not classified as habitual offenders. Upon the effective date of
the act, they were on notice that if they accrued one more violation
within the statutory period, they would be classified as habitual
offenders. Each accrued another violation within the act's prohibition.
But for the additional violation they would not be classified as
habitual offenders. It was the final violation which brought them within
the ambit of the act.
[46] We find no vested right which has been impaired or taken away.
The act does not impose any new duty, and it does not attach any
disability on either of the defendants in respect to transactions. The
defendants could have avoided the impact of the act by restraining
themselves from breaking the law of this state.
[47] A statute is not retroactive merely because it relates to prior
facts or transactions where it does not change their legal effect. It is
not retroactive because some of the requisites for its actions are drawn
from a time antecedent to its passage or because it fixes the status of
a person for the purposes of its operation. See Barbieri v. Morris, 315
S.W.2d 711 (Mo. 1958), and Bates v. McLeod, 11 Wash. 2d 648, 120 P.2d
472 (1941). See also Cooley v. Texas Dep't of Pub. Safety, 348 S.W.2d
267 (Tex. Civ. App. 1961).
[48] [7] We also disagree with the defendants' argument that the
revocation of a driver's license is a punishment. While recognizing in
one context that it might be so interpreted, it has been almost
universally held that the suspension or revocation of a driver's license
is not penal in nature and is not intended as punishment, but is
designed solely for the protection of the public in the use of the
highways. See Anderson v. Commissioner of Highways, 267 Minn. 308, 126
N.W.2d 778 (1964), and the cases cited therein; State Dep't of Highways
v. Normandin, 284 Minn. 24, 169 N.W.2d 222 (1969); and Huffman v.
Commonwealth, 210 Va. 530, 172 S.E.2d 788 (1970), and the cases cited
therein. It is also well established that a proceeding to revoke a
driver's license is a civil not a criminal action. Huffman v.
Commonwealth, supra; Barbieri v. Morris, supra ; and Cooley v. Texas
Dep't of Pub. Safety, supra.
[49] The defendants next contend that the prosecution by the state to
impose an additional penalty for the acts already punished violates the
constitutional protection against double punishment and double jeopardy
found in Const. art. 1, § 9, and in the fifth and fourteenth amendments
to the United States Constitution. We disagree.
[50] As heretofore stated, the revocation of a license is not a
punishment, but it is rather an exercise of the police power for the
protection of the users of the highways. The court, in Anderson v.
Commissioner of Highways, supra, addressed a similar issue and stated on
page 316:
[51] Petitioner's argument that the suspension here violates
constitutional prohibitions against double jeopardy is of no merit as it
is well established that suspension or revocation of a license is not a
punishment but is rather an exercise of the police power for the
protection of the public.
[52] (Footnote and citations omitted.)
[53] The privilege to operate an automobile is a valuable one and may
not be unreasonably or arbitrarily taken away; however, the enjoyment of
the privilege depends upon compliance with the conditions prescribed by
the law and is always subject to such reasonable regulation and control
as the legislature may see fit to impose under the police power in the
interest of public safety and welfare. See Anderson v. Commissioner of
Highways, supra.
[54] The defendants also contend that the act denies the defendants
and their class equal protection of the laws guaranteed by the
fourteenth amendment to the United States Constitution by mandating
license suspension upon accumulation of a specified number of violations
without regard to the issue of validity of conviction, and without due
process in the review procedure. We disagree.
[55] The issue as to the validity of the convictions is determined at
the prior trials or bail forfeitures. If the defendants wished to
challenge the validity of the convictions, they should have done so at
that time.
[56] [8] We have heretofore determined that there is no apparent
violation of due process involved in the instant case, and therefore
there is no need to determine whether or not the defendants are being
denied equal protection of the laws. The defendants argue in effect that
the act impinges upon a fundamental right, the right to travel, and
therefore cannot be justified as there is no compelling state interest
available to uphold the act. We disagree. There is no constitutional
right to a particular mode of travel. The right to travel is not being
denied. The defendants are being prohibited from using a particular mode
of travel in a particular way, due to their repeated offenses, in order
to protect the public at large which we find to be reasonable under the
circumstances. See Eggert v. Seattle, 81 Wash. 2d 840, 505 P.2d 801
(1973), for a discussion of the right to travel.
[57] Moreover, the governmental interest asserted in support of the
classification, we believe, is such that it meets the more stringent
test of compelling state interest as fully explained in the Eggert case.
The act calls for the revocation of the privilege of operating a vehicle
where one has demonstrated his disregard for the traffic safety of
others by accumulating the specified number of bail forfeitures or
convictions. The governmental interest involved is that of the
protection of the individuals who use the highways. Even fundamental
liberties cannot be used to jeopardize the members of the community and
where one does so use his liberties, he is subject to having said
liberties curtailed.
[58] Finally, the defendants contend that the Washington Habitual
Traffic Offenders Act, as it affects them, constitutes in effect a bill
of attainder prohibited by U.S. Const. art. 1, § 9, cl. 3, and Const.
art. 1, § 23. We find this contention to be without merit.
[59] [9] A bill of attainder is a legislative act which applies to
named individuals or to easily ascertained members of a group in such a
way as to inflict punishment on them without judicial trial. United
States v. Brown, 381 U.S. 437, 14 L. Ed. 2d 484, 85 S. Ct. 1707 (1965),
and the cases cited therein. As heretofore stated, the act provides for
a trial which is appropriate for the nature of the case. Furthermore,
the act does not single out any individual or easily ascertained members
of a group, as the act applies to all users of the highways who come
within the ambit of the definition of an habitual traffic offender.
[60] The order entered by the trial court is affirmed.
[61] CASE RESOLUTION
[62] Affirmed.
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19731011
1973.WA.318