Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

MEMORANDUM^** 

Connell appeals his conviction for driving with a suspended or revoked license on a federal military installation in violation of Haw.Rev.Stat. Sec. 286-132 (1985), a state violation made federal pursuant to the Assimilative Crimes Act (ACA), 18 U.S.C. § 13 (1988). He argues that the Hawaii statute under which his license was revoked, Haw.Rev.Stat. Sec. 287-20 (1985), is unconstitutional either facially or as applied. We disagree and affirm his conviction for driving without a license.

FACIAL CHALLENGE TO THE STATUTE

We first consider the facial challenge to Haw.Rev.Stat. Sec. 287-20, which provides that license suspension will follow conviction for driving without insurance. Appellant contends that the statute is unconstitutional on its face because it fails to provide notice and hearing prior to or after suspension of a driver's license. He relies on Bell v. Burson, 402 U.S. 535 (1971). In Bell, the Supreme Court found unconstitutional a Georgia statute that did not provide a fault determination prior to suspending the license of a driver who was involved in an accident and who did not post security for the amount of damages claimed by the aggrieved party. Id. at 542. The Bell Court, however, distinguished the facts before it from those present in this case: "If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment." Id. at 539. Haw.Rev.Stat. Sec. 287-20 conforms to this dictum.

Moreover, we note that Haw.Rev.Stat. Sec. 287-20 is not invoked until after conviction of an offense for which a hearing is available. Therefore, appellant's claim that the statute accords him no process at all fails. A hearing was available at the culpability phase. Hawaii need not provide a hearing at the penalty phase as well.¹  For these reasons, we cannot agree with appellant that the Hawaii statute is facially invalid under the Fourteenth Amendment.

THE "AS APPLIED" CHALLENGE

The gravamen of appellant's "as applied" claim is that the government did not prove that he received actual notice of the revocation or suspension of his license. The relevant Hawaii provision, Haw.Rev.Stat. Sec. 287-20, explicitly provides for automatic suspension if after thirty days a driver who has been convicted of driving without proof of no-fault insurance does not come forward and establish proof of financial responsibility. It was unreasonable for appellant to assume after such a conviction that his license would remain unaffected. A simple inquiry of the proper officials would have provided the proper notice. It does not violate procedural due process to require that much of one who operates an automobile without proper insurance.

THE REQUIRED STATE OF MIND

Appellant seeks to make his "no actual notice" procedural due process argument do double duty. He asserts that because he had no actual notice of the license suspension, he could not have had the state of mind required by Haw.Rev.Stat. Sec. 286-132, for driving with a suspended license.

The district court concluded that appellant demonstrated recklessness with respect to the operation of his automobile because he "should have known" that his license had been suspended. This conclusion conforms to that required by Haw.Rev.Stat. Sec. 702-204, which is applicable to the facts and law of this case and which states: "When the state of mind required to establish an element of an offense is not specified by law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly."

We agree with the district court's conclusion. This holding finds support in State v. Lesher, 66 Haw. 534, 669 P.2d 146 (1983), a case in which the vehicle being operated lacked a current no-fault card. In Lesher, the Hawaii Supreme Court stated: "By operating the vehicle in question without ascertaining that there was a valid, current no-fault card in the vehicle, appellant acted recklessly with respect to whether her conduct in driving the vehicle was in violation of Sec. 294-8(a) (1), HRS." Id. at 537, 669 P.2d at 148. The Lesher court carefully distinguished between a case where a driver innocently thought he had a valid no-fault insurance card even though it had been cancelled. See id. (citing Joshua v. MTL, Inc., 65 Haw. 623, 624, 656 P.2d 736, 1737 (1982)).

JUDICIAL NOTICE

With a modest degree of chutzpah, appellant falsely invokes an appeal to symmetry by arguing that not only should he not be required to know about any sanctions possibly applicable to his vehicular transgressions, but also the district court should not be permitted to inform itself judicially of the possibility of such sanctions. The appellant's strategy is obvious; to strike from the memory of all concerned his conviction under Haw.Rev.Stat. Sec. 287-20. That simply will not do.

The existence of the prior conviction was "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. Sec. 201(b) (2). It was clearly a matter of which judicial notice can be taken. Moreover, appellee asserts that appellant has raised this argument for the first time on appeal. Whether this is an adequate grounds for disposing of this judicial notice issue or not, it is clear that no error arose because of the juridical role taken with respect to the prior conviction.

AFFIRMED.