Leathers v. Cotton

Timothy LEATHERS, In His Official Capacity as
Commissioner of Revenues, Arkansas Department
of Finance and Administration, Office of
Driver Control v. William W. COTTON

97-619                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1998


1.   Statutes -- construction -- basic rule. -- The basic rule of
     statutory construction to which all other interpretive guides
     must yield is to give effect to the intent of the legislature;
     where the language of a statute is plain and unambiguous, we
     determine legislative intent from the ordinary meaning of the
     language used; the first rule in considering the meaning of a
     statute is to construe it just as it reads, giving the words
     their ordinary and usually accepted meaning in common
     language.

2.   Criminal law -- DWI -- administrative suspension -- two separate
     convictions of first-offense DWI counted as two previous offenses. -- In
     determining the number of "previous offenses" on which to base
     the administrative suspension of a driver's license, the
     administrative agency is clearly directed by Ark. Code Ann. 
     5-65-104(a)(9)(A) (Repl. 1997) to include "[a]ny convictions"
     for offenses under Ark. Code Ann.  5-65-103 (Repl. 1997);
     under this provision, two separate convictions of first-
     offense DWI, both violations of section 5-65-103, should be
     counted as two "previous offenses."

3.   Criminal law -- DWI -- administrative suspension -- trial court erred in
     finding agency could not suspend appellee's license. -- First-offense
     DWI is just as much a violation of Ark. Code Ann.  5-65-103
     as is second-offense DWI; the difference is only one of
     quantity; while the municipal court acquitted appellee of
     second-offense DWI, it did not acquit him of the "charge" of
     violating section 5-65-103; once convicted of first-offense
     DWI, appellee simply had two separate convictions of violating
     section 5-65-103, and, pursuant to section 5-65-104(a)(9)(A),
     the agency was required to consider both of these violations
     of section 5-65-103 as "previous offenses"; there was no
     "acquittal on the charges" under section 5-65-104(d)(2)(B)
     because the municipal court never acquitted appellee of
     violating section 5-65-103; thus, the decision of the
     municipal court had no effect on the administrative
     suspension; accordingly, the supreme court, concluding that
     the trial court erred in finding that the agency could not
     suspend appellee's license for sixteen months, reversed and
     remanded the matter. 

4.   Criminal law -- DWI -- factual determination of violation of Ark. Code
     Ann.  5-65-103 left to judiciary. -- Arkansas Code Annotated
     section 5-65-104 ultimately leaves the factual determination
     of whether there has been a violation of section 5-65-103,
     which sets forth unlawful acts, in the hands of the judiciary.

     Appeal from Sebastian Circuit Court; Don R. Langston, Judge;
reversed and remanded.
     Daniel S. Smith, for appellant.
     Ray Hodnett, for appellee.

     Annabelle Clinton Imber, Justice.
     This case presents a question of statutory interpretation.  It
specifically concerns the effect of a final adjudication of a
lesser-included DWI offense on the administrative suspension of a
driver's license.
     The undisputed facts are as follows.  On October 26, 1994,
Cotton was convicted of DWI first offense in Fort Smith Municipal
Court.  On October 13, 1996, Cotton was charged with DWI second
offense in Van Buren Municipal Court.  Pursuant to Ark. Code Ann.
 5-65-104 (Repl. 1997), Cotton's license was temporarily suspended
by the Office of Driver Services of the Revenue Division of the
Department of Finance & Administration, and Cotton subsequently
exercised his right to an administrative hearing.  Cotton, a sales
manager for a distributing company, would lose his job without a
driver's license or a permit.  While he did not contest the
suspension of his license, he did request a work permit due to
hardship.  Following a hearing on October 28, 1996, the hearing
officer found that there had been a violation of Act 802 of 1995,
and imposed second-offense sanctions, suspending Cotton's license
for sixteen months, and denying the work permit "as it [was] more
than DWI 1st offense within three years."
     On November 14, 1996, Cotton filed a petition for de novo
review in Sebastian County Circuit Court pursuant to section 5-65-
104(c).  On January 8, 1997, the Van Buren Municipal Court found
Cotton guilty of DWI first offense.  Given that the municipal court
had acquitted him of DWI second offense, Cotton asserted that the
trial court now had jurisdiction to issue a work permit in the
administrative review proceeding.  Following a hearing on the
matter, the trial court entered an order finding that Cotton's
acquittal on the DWI second-offense charge in municipal court had
"turned this charge into a First Offense Driving While
Intoxicated."  The court further found that "[s]ince this is a
First Offense Driving While Intoxicated case by finding of the Van
Buren Municipal Court, the Office of Driver Control cannot suspend
the Plaintiff's drivers license for sixteen (16) months." 
Accordingly, the trial court ordered DF&A to suspend Cotton's
license for 120 days "for Driving While Intoxicated, First Offense,
in accordance with the Judgment of the Van Buren Municipal Court." 
Because this time period had already expired given the effective
date of suspension, October 28, 1996, the trial court ordered
Cotton's license reinstated.  DF&A brings the present appeal.
     DF&A's sole argument for reversal is that the trial court
erroneously interpreted section 5-65-104.  Specifically, DF&A
contends that the municipal court's acquittal on DWI second offense
did not preclude it from considering the DWI first-offense
conviction in calculating the total number of offenses for
imposition of second-offense sanctions under section 5-65-104.    
     Administrative suspension or revocation of driver's licenses,
which constitutes a remedial civil sanction, see Pyron v. State,
330 Ark. 88, 953 S.W.2d 874 (1997), is primarily governed by
section 5-65-104.  When DF&A initially suspends or revokes the
driving privilege of a person arrested for DWI violating Ark. Code
Ann.  5-65-103 (Repl. 1997), "[t]he suspension or revocation shall
be based on the number of previous offenses as follows:" 
(A)(i) Suspension for one hundred twenty (120) days for
the first offense of operating or being in actual
physical control of a motor vehicle while intoxicated or
while there was one-tenth of one percent (0.1%) or more
by weight of alcohol in the person's blood,  5-65-103;

* * * 

(B)(i) Suspension for sixteen (16) months, during which
no restricted permits may be issued, for a second offense
of operating or being in actual physical control of a
motor vehicle while intoxicated or while there was
one-tenth of one percent (0.1%) or more by weight of
alcohol in the person's blood,  5-65-103, within three
years of the first offense.

Ark. Code Ann.  5-65-104(a)(4)(A)-(B).  In determining the number
of previous offenses a person has in considering suspension or
revocation, the Office of Driver Services is required to "consider
as a previous offense:"
(A) Any convictions for offenses of operating or being in
actual physical control of a motor vehicle while
intoxicated. . .under  5-65-103 or refusing to submit to
a chemical test under  5-65-202 which occurred prior to
July 1, 1996; and

(B) Any suspension or revocation of driving privileges
for arrests for operating or being in actual physical
control of a motor vehicle while intoxicated. . .under 
5-65-103 or refusing to submit to a chemical test under
 5-65-202 occurring on or after July 1, 1996, where the
person was not subsequently acquitted of the criminal
charges.

Ark. Code Ann.  5-65-104(a)(9)(A)-(B).  If in a criminal case, a
court of law renders any decision "arising from any violation of 
5-65-103," an acquittal "on the charges" will reverse the
administrative suspension or revocation of the driver's license
suspended or revoked.  Ark. Code Ann.  5-65-104(d)(2)(B).
     The basic rule of statutory construction to which all other
interpretive guides must yield is to give effect to the intent of
the legislature.  Mountain Home Sch. Dist. v. T.M.J. Bldrs., 313
Ark. 661, 858 S.W.2d 74 (1993).  Where the language of a statute is
plain and unambiguous, we determine legislative intent from the
ordinary meaning of the language used.  Id.  The first rule in
considering the meaning of a statute is to construe it just as it
reads, giving the words their ordinary and usually accepted meaning
in common language.  Id.
     In determining the number of "previous offenses" on which to
base its sanction, DF&A is clearly directed to include "[a]ny
convictions" for offenses under section 5-65-103.  Ark. Code Ann.
 5-65-104(a)(9)(A) (emphasis added).  Under this provision, it is
obvious that two separate convictions of DWI first offense, both
violations of section 5-65-103, should be counted as two "previous
offenses."    However, the crux of this case is the effect, if any,
of the municipal court's acquittal on the DWI second offense charge
in light of section 5-65-104(d)(2)(B).  Cotton's position is that
this acquittal of DWI second offense precludes DF&A from relying on
the DWI first-offense conviction as a basis for imposition of
second-offense sanctions.  In other words, he was "acquitt[ed] on
the charges" as that phrase is used in section 5-65-104(d)(2)(B),
requiring reversal of the administrative suspension.
      We must reject Cotton's argument because it fails to take
into consideration that DWI first offense is just as much a
violation of section 5-65-103 as is DWI second offense.  The
difference is only one of quantity.  See McElhanon v. State, 329
Ark. 261, 948 S.W.2d 89 (1997); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984).  While the Van Buren Municipal Court acquitted
Cotton of DWI second offense, it certainly did not acquit Cotton of
the "charge" of violating section 5-65-103.  Once the municipal
court convicted Cotton of DWI first offense, he simply had two
separate convictions of violating section 5-65-103:  one on October
26, 1994, and the other on January 8, 1997.  Pursuant to section 5-
65-104(a)(9)(A), DF&A was required to consider both of these
violations of section 5-65-103 as "previous offenses."  There was
no "acquittal on the charges" under section 5-65-104(d)(2)(B)
because the municipal court never acquitted Cotton of violating
section 5-65-103.  Given that there was no such acquittal, the
decision of the Van Buren Municipal Court had no effect on the
administrative suspension.  Accordingly, we conclude that the trial
court erred in finding that DF&A could not suspend Cotton's license
for sixteen months. 
     As an alternative theory for affirmance, Cotton makes the
assertion that "[i]f the Appellant's contention is allowed to stand
it would constitute an unlawful delegation of judicial power to the
executive branch."  His sole citation to authority to support this
contention is Davis v. Britt, 243 Ark. 556, 420 S.W.2d 863 (1967),
where this court held that a statute allowing the state hospital to
retain a defendant in custody until he was determined "sane" was an
unconstitutional delegation of judicial power to the executive
branch.  We fail to see how Davis is apposite to the present case. 
Moreover, section 5-65-104 ultimately leaves the factual
determination of whether there has been a violation of section 5-
65-103 in the hands of the judiciary.
     The judgment of the trial court is reversed and the case is
remanded for further proceedings consistent with this opinion.
     Reversed and remanded.