Erno v. Commissioner of Motor Vehicles

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-391


David Erno                                   Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Franklin Circuit

Commissioner of Motor Vehicles               December Term, 1990



Edward J. Cashman, J.

Steve Dunham, Public Defender, St. Albans, for plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, and Thomas A. McCormick, Assistant
   Attorney General, Montpelier, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



     JOHNSON, J.   Plaintiff, David Erno, appeals the dismissal by the
Franklin District Court of his appeal from a suspension of his driver's
license by the Vermont Commissioner of Motor Vehicles (hereinafter
Commissioner).  We reverse and remand to the district court for a hearing on
the merits of Erno's appeal.
     In January 1987, Erno was convicted in Vermont of driving while under
the influence (DUI).  In February 1988, Erno was convicted of DUI in
Florida.  On November 21, 1988, the Commissioner issued an eighteen-month
suspension of Erno's right to drive, based on the Vermont and Florida
convictions.  The Commissioner did not notify Erno of a right to request a
pre-suspension hearing on an out-of-state conviction; instead the suspension
automatically became effective five days after the date of mailing.
     In April 1989, Erno was charged with driving with license suspended
and was assigned counsel.  Although Erno's license had been suspended since
November 1988, he requested a hearing on the suspension pursuant to 23
V.S.A. { 671a.   On May 10, 1989, the Commissioner held a hearing on, and
confirmed, Erno's suspension.  Erno filed a timely appeal from the hearing
decision to the Franklin District Court pursuant to { 671a(c), which affords
parties a de novo hearing before the district court to challenge an adverse
decision of the Commissioner.  The Franklin District Court dismissed the
appeal because Erno had not requested a hearing before the Commissioner
within ten days of the initial suspension in November 1988, despite the
Commissioner's failure to notify Erno of his right to a hearing.  The court
reasoned that by failing to make a timely request, Erno waived his rights
under the statute.  This appeal followed.
      The issue is whether Erno was entitled to notice and an opportunity to
request a pre-suspension hearing on an out-of-state conviction for a DUI
offense pursuant to { 671a.  Section 671a requires the Commissioner to give
effect to out-of-state convictions for DUI offenses, as if the offenses
were committed in Vermont; however, the statute also provides that "the
commissioner may not order the revocation or suspension based upon any
conviction of the operator in any other state . . . until after notice and
hearing, if the person or operator of the motor vehicle requests a hearing
. . . ."  23 V.S.A. { 671a (emphasis added).
     The Commissioner contends that { 671a did not apply to Erno's Florida
conviction because Florida is a member of the Driver License Compact, 23
V.S.A. {{ 3901-3910.  Section 3905 of the Driver License Compact states, in
relevant part:
          (a) The licensing authority in the home state, for the
          purposes of suspension . . . of the license to operate a
          motor vehicle, shall give the same effect to the conduct
          reported, pursuant to Article III of this compact, as it
          would if the conduct had occurred in the home state, in
          the case of convictions for:

               . . . .

               (2) driving a motor vehicle while under the
          influence of intoxicating liquor or narcotic drug, or
          under the influence of any other drug to a degree that
          renders the driver incapable of safely driving a motor
          vehicle . . . .

     The Commissioner interprets { 3905 to apply both substantively and
procedurally, arguing that since there is no right to a pre-suspension
hearing for subsequent Vermont DUI convictions, 23 V.S.A. { 671(e), there is
none for out-of-state convictions from participating jurisdictions.  Conse-
quently, the Commissioner supports the decision of the district court, but
for different reasons.  We conclude that Erno was entitled to notice and an
opportunity to be heard by the Commissioner before suspension.  Given the
Commissioner's failure to notify him of his rights, his failure to request a
hearing within ten days of the suspension did not constitute a waiver of his
rights under the statute.
      The Driver License Compact was enacted in 1987; section 671a was
amended in the same year.  There is no language in either statute that
limits the application of { 671a to suspensions based on convictions from
non-Compact states.  Since the legislature retained the language in { 671a
that provides for a pre-suspension hearing for suspensions based on any out-
of-state conviction, the Driver License Compact and { 671a are best harmo-
nized by giving effect to the provisions of each statute.  See Verrill v.
Daley, 126 Vt. 444, 446, 236 A.2d 238, 240 (1967)("Statutes in pari materia
are to be construed with reference to each other as parts of one system").
Therefore, the Commissioner shall use the procedures set forth in { 671a for
any suspension based on an out-of-state conviction.
     As noted above, Erno eventually was granted a hearing by the
Commissioner, from which he took a timely appeal to the district court.
Because we reverse the decision of the district court, Erno is now entitled
to his hearing on the merits in that court.  Therefore, we address Erno's
argument that the Florida conviction should have been treated as a first
offense to prevent the unconstitutional ex post facto application of 23
V.S.A. { 1211 and the Driver License Compact.
     Erno points out that in January 1987, when he was convicted of DUI in
Vermont, an out-of-state conviction would not automatically have been used
to calculate subsequent convictions under 23 V.S.A. { 1208.  The Driver
License Compact was enacted and { 1211 modified in July 1987 to mandate
consideration of out-of-state DUI convictions in computing subsequent
convictions.  Therefore, Erno argues that, using the pre-amendment 1987
Vermont conviction in conjunction with an out-of-state conviction to
compute subsequent convictions under { 1208 constituted an ex post facto
application of the statute, even though the out-of-state conviction occurred
after the enactment of the Driver License Compact and the amendment of {
1211.  We disagree.
     In Carpenter v. Vermont Department of Motor Vehicles, 143 Vt. 329, 333,
465 A.2d 1379, 1382 (1983), we explained that retrospective or retroactive
laws are "'defined, from a legal viewpoint, as those which take away or
impair vested rights acquired under existing laws, or create a new
obligation, impose a new duty, or attach a new disability in respect to
transactions or considerations already past'" (quoting Barbieri v. Morris,
315 S.W.2d 711, 714 (Mo. 1958)).  See Shaw v. Vermont District Court, 152
Vt. 1, 7, 563 A.2d 636, 640 (1989).  The test, we stated, is "whether 'the
act which trigger[ed] application of the amended statute occur[red] after
the effective date of the amended statute.'"  Carpenter at 333, 465 A.2d  at
1382 (quoting Nix v. Tice, 44 Colo. App. 42, 43, 607 P.2d 399, 400 (1980)).
     The facts in Carpenter are almost identical to the facts in the
instant case.  Plaintiff, in Carpenter, was convicted of DUI in 1975 and in
1979.  The DUI statute was then amended to require (a) suspension of a
person's license for six years upon a third refusal to submit to a breath
test and (b) treatment of convictions prior to the amendment as refusals.
Subsequently, in 1981, plaintiff was stopped for suspected DUI and asked to
submit to a breath test.  He refused.  Pursuant to the amended statute, the
two convictions which occurred prior to amendment were treated as refusals.
Consequently, the 1981 refusal was treated as a third refusal and
plaintiff's license was suspended for six years.  Plaintiff argued that the
statute had been applied retrospectively but we disagreed because "the
statute's enactment [would have] had no impact whatsoever on his prior DUI
convictions, absent some new act by plaintiff which triggered the statute's
rule."  Id. at 333, 465 A.2d  at 1382.  Similarly, here, the statutory
amendments would have had "no impact whatsoever" on Erno's prior conviction
absent a new act by him which triggered the new rule.  Accordingly, there
has been no impermissible ex post facto application of the Driver License
Compact and { 1211.  See Id. at 333-34, 465 A.2d  at 1382; Shaw, at 7, 563 A.2d  at 640.

     Cause remanded for a hearing before the district court on the merits of
Erno's appeal.






                                   FOR THE COURT:



                                   Associate Justice