Brett C. Cass v. District of Columbia (see 10/6/03 order amending opinion)

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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 99-CT-969 B RETT C. C ASS, A PPELLANT, v. D ISTRICT OF C OLUMBIA , A PPELLEE. Appeal from the Superior Court of the District of C olumbia (D-4175-98) (Hon. Tim Murphy, Trial Judge) (Argued October 12, 2000 Decided July 31, 2003) Thomas C. Willcox for appellan t. Sidney R. Bixler, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Coun sel at the time th e brief w as filed, Charlotte W. Parker, Acting D eputy Corporation Counsel, and Rosalyn Calbert Groce, Director, Policy and Appeals Branch, were on the brief for appellee. Before W AGNER, Chief Judge, and FARRELL and R UIZ, Associate Judges. R UIZ, Associate Judge: Brett Cass was convicted of possessing an alcoholic beverage while he was under t wenty -one ye ars of ag e, see D.C. Code § 25-130 (a) (Supp. 2000), and sentenced to nine months of probation, under D.C. Code § 25-130 (b-1), a $300 fine under 2 D.C. Code § 25-130 (b-2), and 40 hours of community service work.1 While Cass does not dispute that he violated the Alcoholic Beverage Control Act ( A BC Act ), he contends that his infraction is not a crime punishable under D.C. Code § 25-130 (b-1) or any other provision of the AB C Act. 2 He claims that the only sanctions available for underage possession of alcohol are an administrative fine and a temporary suspension of driving privileges, which are civil in character and shou ld not cause him to su ffer the ancillary penalties associated with a m isdemeanor, such as, for example, having to disclose the conviction on employment applications. In the alterna tive, he sugg ests that the AB C Act is ambiguous, and any d oubts abo ut its mean ing should be resolved in his favor u nder the rule of lenity . While the text of the Act is clear that the possession of alcohol by a person under twenty-one is prohibited, an array of cross-references among the penalty provisions lead the reader in a circle. Th e two pen alties that clearly a pply to po ssession im ply the existence of other penalties: one sanction identifie s itself as a n altern ative p enalty, see D.C. Code § 25130 (b-2), while anoth er indica tes on its face tha t it is an a ddition [al] san ction, see D.C. 1 The relevant sections of the Alcoholic Bev erage Control A ct were amended on May 3, 2001. 48 D.C. Reg. 2959 (2001). The new version of former § 25-130 is now codified at D.C. Code § 25-1002 (2001), and the new version of D.C. Code § 25-132 is codified at D.C. Code § 25-831 (2001). Because these new amendments do not apply to the case at bar, the older citations will be used throughout this opinion. Although we refer to the current provisions where useful as a point of comparison, our opinion does not decide any issue under t he statu te as am ended after ap pellant s violatio n. 2 Cass ente red a cond itional plea of g uilty, pendin g our resolu tion of this app eal. 3 Code § 25-130 (c). Yet the o nly two candidates fo r non-additional and non-alternative penalties are on their face inapplicable to underage possession of alcohol: one can be applied only when no [other] specific penalty is provided, see D.C. Code § 25-132 (a) (1996 ), which is not the case here, while the other ex pressly app lies to misrep resentation o f age to obtain a lcohol, b ut not to posses sion, see D.C. C ode § 2 5-130 (b-1). As we analyze in this opinion, however, we are able to conclude that the apparent confusion can be rendered intelligible upon a close reading of the Act s sub sections in context. For example, the cross-references to other penalties the words a lternative in section 25-130 (b-2) and in addition in section 25-130 (c) can be understood as applying only to the offense of misrepresentation of age, b ut not to the pos session of alcoh ol. Read in such a manner, the confusing references to phantom pen alties for alcohol possession disappear, but no words a re rendered superfluous because they remain meaningful in the context of a different violation. Such a reading is also consistent with legislative history, which shows that the Council of the District of Columbia intended to repeal the harsh penalties for alcohol possession in the previous version of the statute and replace them with milder penalties following our decision in District of Columbia v. Morrissey, 668 A.2d 792, 800 (D.C. 199 5). See D.C. Code § 25-132 (a). We thus concur with Cass albeit for very different reasons that the only penalties available for the possession of alcohol by a person und er twenty-one are civil: a fine pursuant 4 to the Civil Infractions Act, D.C. Code §§ 6-2701 to 2723,3 see D.C. Code § 25-130 (b-2), and the suspension of driving privileges un der D.C. Cod e § 25-130 (c). W e therefore reverse the judgm ent of the trial co urt sentencin g Cass to nine months probation under D.C. Code § 25-1 30 (b-1). ANAL YSIS Because this is a pure question of statutory construction, our review is de novo. See Morrissey, 668 A.2d at 79 5-96. As a lways, w e begin w ith the plain language of the statute. See People s Drug Stores, Inc. v. District of C olumbia , 470 A.2d 751, 753 (D.C. 1983) (citation omitted). N ext, because we find individual subsections to be c apable of more than one reading, our task is to search for an interpretation that makes sense of the statute as a whole. See Carey v. Crane Serv. Co., 457 A.2d 110 2, 1108 (D.C. 19 83) (citations omitted). Lastly, we turn to legislative history to determine whether our interpretation is consistent with leg islative in tent. See People s Drug Store, Inc., 470 A.2d at 754 (citations omitted). A. Plain La nguage of the Statu te Several sections of the statute are clear on their face. It is indisputable, and undisputed by the parties, that the possession of alcohol by a person under twenty-one is unlawfu l: [n]o person who is under 21 years of age shall purchase, attempt to purchase, 3 The provisions of the Civil Infractions Act are now codified at D.C. Code §§ 21801.01 to 1803 .03 (2001). 5 possess, or drink any alcoholic beverage in the District . . . . D.C. Code § 25-130 (a) (Supp. 2000). 4 It is equally clear that a violation of this provision can result, at a minimum, in the imposition of a civil fine under D.C. Code § 25-130 (b-2) and the revocation of driving privileges under D .C. Co de § 25 -130 (c ). See Con necticut Na t'l Bank v. G ermain , 503 U.S. 249, 254 (1992) (holding that, when the words of a statute are cle ar, the judicia l inquiry is complete ) (citation om itted). What is not clear is whether other penalties are available as well. Both sections 25130 (b-2) and 25-130 (c) imply that other sanctions exist. Section 25-130 (b -2) explicitly states that the civil fine may serve as an alternative sanction for any infraction of the ABC Act. 5 Use of the word alternative implies that the fine is but one of two or m ore possible 4 A different section of the statute prohibits misrepresentation of age for the purpose of obtaining alcohol: No person shall falsely represent his or her age, or possess or present as proof of a ge an iden tification docu ment w hich is in any way fraudulent, for the purpose of pro curing an a lcoholic beverage in the District. D.C. Code § 25-130 (b). 5 D.C. Code § 25-130 (b-2) states as follows: A civil fine may be im posed as an alternative san ction for any infraction of this section, or any rules or regulations issued under the authority of this chapter, pursuant to §§ 6-2701 to 62723 ( Civil Infractions Act ). Adjudication of any infraction of this section shall be pursuant to §§ 6-2701 to 6-2723. (contin ued...) 6 choices as sanc tions, see W EBSTER S II N EW R IVERSIDE U NIVERSITY D ICTIONARY 96 (1st ed. 1984), but those other choices are not identified. Section 25-130 (c) specifies that its penalties may be imposed [i]n addition to the penalties provided in subsections (b-1) and (b-2). 6 The phrase in addition to suggests that the penalties described are over and 5 (...continued) As amended in 2001, that section now reads: As an alternative sanction to the misdemeanor penalties provided in subsectio n c of this sec tion [fine of up to $300 o r, in default, imprisonment of up to 30 days for misrepresentation of age], a person who violates subsection a [underage possession or consum ption of alco hol] or b [m isrepresenta tion of age for the purpose of obtaining alcohol] of this section shall be subject to the following civil penalties: (A) (B) (C) Upon the first violation, a penalty of $300; Upon the second violation, a penalty of $600; and Upon the third and subseque nt violation, a penalty of $1,000 and the suspension of his or her driving privileges in the District for one year. D.C. Code § 25-1002 (e) (1) (200 1). 6 D.C. Code § 25-130 (c) (2000 Supp.) provides as follows: In addition to the penalties provided in subsections (b-1) and (b2) of this section, any person who violates any prov ision of this section shall be subject to the following additional penalties: (1) Upon th e first violation, sh all have his or her driving privileges in the District suspended for a period of 90 consecutive days; (2) Upon the second violation, shall have his or her driving privileges in the District suspended for a period of 180 days; and (contin ued...) 7 above or besides othe r penalti es. See W EBSTER S II N EW R IVERSIDE U NIVERSITY D ICTIONARY 77 (1st e d. 1984 ). There are only two prov isions in the ABC Act that could provide those other sanctions, D.C. Code §§ 25-130 (b-1) and 25-132 (a); their plain language, however, makes them inapplicable to a charge of possession of alcohol by a minor. Section 25-130 (b-1) explicitly states that it applies to a misrepresentation of age for the purpose of procuring alcohol. 7 Section 25 -132 (a) state s that it applies to any vio lation for w hich no sp ecific penalty is provid ed. 8 The civil fine of section 25-130 (b-2) and the suspension of driving 6 7 (...continued) (3) Upon the third violation and each subsequent violation, shall have his or her driving privileges in the District suspen ded for a period of 1 yea r. D.C. Code § 25-130 (b-1) states as follows: Any person un der 21 ye ars of age w ho falsely rep resents his or her age for the purpose of procuring [any] alcoh olic [] beverage shall be deemed guilty of a misdemeanor and be fined for each offense not more than $300, and in default in the payment of the fine shall be imprisoned not exceeding 30 days. 8 D.C. Code § 25-132 (a) (1996) provides: Any person who violates any of the provisions of this chapter for which no specific penalty is provided, or any of the rules and regulations pursuant thereto for which no specific p enalty is provided, upon conviction thereof, shall be fined not more than $1,000 or imprisoned for not more than 1 year, or both. (contin ued...) 8 privileges under section 25-130 (c) are undoubtedly spec ific penalties, and therefore section 25- 132 (a) is ren dered inap plicable to a c harge of p ossession. W e are thus left a t a seeming dead end: two provisions, D.C. Code §§ 25-130 (b-2) and (c), indicate that other alternative or primary sanctions are available for underage possession of alcohol, but none other in the ABC Act appears to be applicable. B. Construing Subsections Together Faced with this apparent contradiction, we move to the next stage of our analysis: deciding whether seemingly inconsistent provisions can be interpreted in a way that would harmonize them. See Carey, 457 A.2d at 1108 ( [S]tatutory provisions are to be construed not in isolation, but together with othe r related provisions. ) (citation omitted). Sections 25-130 (b -1) and 25 -132 (a) bo th indicate on their face that they do not app ly to the underage possession of alcohol. We should therefore construe section 25-130 (b-2) in light of this fact, and read the word alternative as not applying to underage possession. 8 (...continued) Given the foregoing language of section 25-132 (a), that the penalties contained in sections 25-130 (b-2) and (c) are civil, rather than criminal, in nature does not affect our analysis. Section 25-132 (a) does not require that a penalty be criminal but that it be specific. As we explain in th e text, sections 25 -130 (b-2) a nd (c) con tain specific pen alties that apply to underage possession of alcohol. T his is in contra st to violations fo r which n o specific pe nalty has been pro vided, such as the sale of a lcoholic beverages without a license. See D.C. Code § 25-109 (a) (1) (199 6). 9 This would no t make the wo rd alternative superfluous, as it would still indicate that the civil penalties of section 25-130 (b-2) constitute an alternative to the criminal penalties of section 25-130 (b -1) for misre presentation of age in ord er to obtain a lcohol in vio lation of section 25-130 (b). The advantage of such a reading is that it would eliminate the seeming confusion surrounding the penalties available for possession of alcohol by a minor. Under that reading, a civil fine would be the primary penalty for possession, and the phrase in addition to in section 25-130 (c) would indicate that the suspension of driving privileges may be impo sed as a supple ment to that civil f ine. There wou ld be no references to oth er, nonex istent, san ctions. The District of Columbia concurs with this approach, but reaches a different conclusion. It points to a general provision of the ABC Act which provides that [p]rosecutions for violations of [the Act] . . . shall be on information filed in the Superior Court of the D istrict of C olum bia by th e Corp oration Coun sel. D.C . Code § 25-132 (c). The Morrissey opinion commented that the references to prosecution and information in this sub section imply that viol ations o f the Ac t are crim inal in na ture. See Morrissey, 668 A.2d at 796 (explaining that prosecutions on information is terminology commonly used in criminal proceedings). The government contends that, because the alternative civil fines of section 25-130 (b-2) and the additional license suspensions of section 25-130 (c) are not criminal penalties, the language of section 25-132 (c) compels that we apply some criminal sanction to underage possession of alcohol. Because the criminal sanction in section 25-132 10 (a) was expressly eliminated as a possible penalty by the Council for underage possession of alcohol (in response to this court s decision in Morrissey, as discussed below), the District argues that the misdemeanor penalties described in section 25-130 (b-1) must be applicable. We do not agree w ith the District s interpretation of the statute. With limited exceptions, unam biguou s statuto ry lang uage tru mps a ll other c onside rations. See Connecticut Nat l Bank, 503 U.S. at 254 (holding that, when the wo rds of a statute are clear, the judicial inquiry is co mplete ) ( citation om itted); People s Drug Stores, Inc., 470 A.2d at 754 (noting that literal meaning will no t be follo wed, inter alia, where result is absurd). Section 25-130 (b-1) is unambig uous: [a]n y person u nder 21 y ears of age who false ly represents his or her age for the purpose of procuring [any] alcoholic . . . beverage shall be deemed guilty o f a misd emea nor. D .C. Co de § 25 -130 (b -1) (Su pp. 200 0). On its face, it does not app ly to m ere pos session of alcoh ol by a m inor. See id. Plain words such as these canno t be altere d by a s econd ary rule of cons truction . Nor do we think, contrary to the dictum in Morrissey, that the language of section 25132 (c) requires us to impose criminal sanctions for all violations of the ABC Act. The language of section 25- 132 (c) refe rencing crim inal sanction s, does not n ecessarily implicate all violations of the Act. Rather, it can be read to distinguish between those criminal violations of the ABC Act which are prosecuted as felonies by the United States Attorney, and those other criminal violations that are misdemeanors prosecuted based on information 11 filed in Superior Court by the Corporation Counsel. We therefore understand that section 25-132 (c) does not c ompel a criminal sa nction, but m erely provid es, with resp ect to violations of the Act that are criminal in nature, how they are to be prosecuted: misdemea nors by the Co rporation C ounsel, and felonies by the U.S. A ttorney. Th is interpretation is supported by the pro visions for h ow pure ly civil infraction s whic h the District agrees are clearly contemplated by the statute are to be pursued. For example, section 25-130 (b-2), whic h was ad ded post- Morrissey, expressly provides that [a]djudication of any infraction of this section [providing for an alternative civil fine] shall be pursuant to §§ 6-2701 to 6-2723 (the Civil Infractions Act ). This, by its own terms, is a civil sa nction. That leaves the suspension of driving privileges und er section 25 -130 (c), w hich is cast in the m andato ry sha ll, and follows automatically from an adjudication of a violation, with the length o f suspensio n also dictated by the statute, depending on whether it is the first, second or third violation of the ABC Act. Although whether this particular sanction is civil or crim inal is in th e first insta nce a m atter of sta tutory c onstruc tion, see Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted), we find little guidance in its language, other than b y contrast w ith the expre ss labeling o f the fine in 25-130 (b-2) as civil. We conclude that the suspension of driving privileges for violations of the Act by underage persons who possess or consume alcohol, or who lie about their age in order to do so, also is a civil sanction, because of its ma ndatory character and because its primary 12 objective is traffic safety, n ot retribu tion and deterre nce. See id.; Commonwealth v. Duffey, 639 A.2d 1174, 1177 (Pa. 1994) (holding that statute requiring that whenever a person is convicted . . . the court . . . shall order the operating privilege of the person suspended was civil in nature because of the ministerial nature of the judge s role and the involvement of administrative agency) (c itations om itted); cf. Hills v. Iowa Dep t. of Transp. & Motor Vehicle Div., 534 N.W.2d 640, 642 (Iowa 1995) (holding that license revocation upon conviction for drug possession was criminal punishment within the meaning of the Ex Post Facto Clause be cause it was not primarily related to traffic safety, but intended to enhance punishment for drug possession). Regulations issued under the Traffic Act also require the Department of Motor Vehicles to revoke the license of any person under twenty-one who has any meas urable a moun t of alcoh ol in the b lood. See 18 DC MR § 301.1 (f) (1995). The suspension of driving privileges of an underage p erson wh o, though w ithout such m easurable blood alcohol, can be presumed to be headed down that path by possession or consumption of alcohol (or m isrepresentin g age in ord er to do so) sim ilarly supports traffic safety. That the Counc il sought to achieve this objective by deterring young people from alcohol with the prospect of losing their driv ing priv ileges, see C OMM. ON C ONSUMER AND R EGULATORY A FFAIRS, C OUNCIL OF T HE D ISTRICT OF C OLUMBIA, R EPORT ON B ILL 10-207, T HE A LCOHOLIC B EVERAGE C ONTROL A CT AND R ULES R EFORM A MENDMENT A CT OF 1993, S ECTION BY S ECTION A NALYSIS (December 15, 1993), does not alter its purpose of regulating traffic safety. The Counc il s purpose s ince it increase d the drinkin g age to twenty-one in 1986 has been traffic safety as persons under the age of 21 are inexperienced drivers and 13 thus more likely than any other age group to have their driving significantly impaired by even small quantities of alcohol. Jarrett v. Woodward Bros., Inc., 751 A.2d 972, 984 (D.C. 2000) (quoting C OMM. ON C ONSUMER AND R EGULATORY A FFAIRS, C OUNCIL OF THE D ISTRICT OF C OLUMBIA , R EPORT ON B ILL N O. 6-508, THE D ISTRICT OF C OLUMBIA A LCOHOLIC B EVERAGE C ONTROL A CT L EGAL D RINKING A GE A MENDMENT A CT OF 1986" (October 14, 1986)). Therefore, we do not think that section 25-132 (c) needs to be read as requiring that all violati ons of th e AB C Ac t are crim inal in na ture. C. Legislative History The goal of statutory interpretation is to give effect to the purpose of the legislature. See People s Drug Store, Inc., 470 A.2d at 754. The best evidence of that purpose is always the text of th e statute itself. See Connecticut Nat'l Bank, 503 U.S. at 254. Nevertheless, when faced with textual uncertainty, we may tu rn to extrinsic evidence, such as legislative history, as an aid in discerning its meaning.9 See People s Drug Store, Inc., 470 A.2d at 754. Possessio n of alcohol by a person under twenty-on e was punishab le under a predecessor statute by a $1,000 fine or imprisonment for up to a year. See Morrissey, 668 9 As we r eview leg islative history, we are m indful of Judg e Ha rold Lev enth al's observation that citing legislative history is akin to looking over a crowd and picking out your friends. See United States v. Bohai Trading Co., 45 F.3d 577, 581 n.11 (1st Cir. 1995) (quotin g Judg e Patrici a M. W ald, Some Observations On the Use of Legislative History in the 1981 Supreme Court Term , 68 Iowa L. Re v. 195, 214 (1983 )). We therefore use it to provide context to our primary analysis of the language of the statute. 14 A.2d at 799. The Morrissey court s reasoning was based on the text of the statute at that time. Section 25-132 (a) provided then, as it did at the time of Cass s violation and does now, that a fine of up to $1,000 or up to 1 year imprisonment may be imposed for any violation of the Alco holic Beverage Control Act for which no spe cific pen alty is pro vided. D.C. Code § 25-132 (a ) (1996); see D.C. Code § 25-831 (a) (2001). Unlike the version of the statute in effect at the time of Cass s violation, however, the previous version of section 25-130(c) in effect in Morrissey stated that driving privileges may be suspended [i]n addition to the pe nalties p rovide d in § 25 -132. D.C. Code § 25-1 30 (c) (1 996). Cf. D.C. Code § 25-1002(d) (20 01) supra note 3 (providing that driving p rivileges are su spended in addition to the misdemeanor penalties for misrepresentation of age). In Morrissey, the trial court determined, b ecause of the apparent conflict between the two subsections, that no misdemeanor penalty was applicable to underage possession of alco hol. See 668 A.2d at 795. This court rejected that analy sis, holding that the language o f section 25-130(c), enacted as an amendment after section 25-132(a) had been codified, trumped the language of section 25-132(a), and that a penalty of up to a year in prison was authorized for posses sion of a lcohol. See id. at 797, 8 00. In the Morrissey opinion, Ju dge Sch welb commented that [t]he notion that the ABC Act makes possession of a can of beer by a young man of nineteen a crime p unisha ble, inter alia, by imprisonment for one year initially astonished the author of this opinion, and it may surprise some readers as well, id. at 800, noting further that he found it odd that possession 15 of a can of beer by a n ineteen-ye ar old carries a harsher pe nalty than d riving wh ile intoxicated by a forty-year old. Id. n.14. Because [r]ewriting the statute to make it more humane transcends the judicial fun ction, he ur ged the C ouncil to enact clarifying legislation if it did not in tend to make the conduct with which Morrissey has been charged a crime subjec t to trial by jury an d punis hable b y, inter alia, a year in prison. Id. at 801. The Council amended the ABC Act the following year. The impact of Judge Schwelb s opinion is evident: the Committee report summarized the background of the amendment with a quote from Morrissey. See C OMM. ON C ONSUMER AND R EGULATORY A FFAIRS, C OUNCIL OF THE D ISTRICT OF C OLUMBIA , R EPORT ON B ILL 11-606, at 2 (May 30, 1996). In its amendment, the Council repealed the basis for the Morrissey holding the reference to the criminal penalties of section 25-13 2 (a) co ntained in sectio n 25-1 30 (c). See 43 D.C. Reg. 4515 (1996). The Counc il also enacted new, less se vere crim inal penalties in section 25-13 0 (b-1), and explicitly limited their application to misrepresentation of age.10 10 The penalties were reduced from $1,000 and up to one year in prison, to a misdemeanor offense with a fine of not more than $300, and in default of the payment of the fine, . . . impriso n[ment] not exceeding 30 days. The notion that misrepresentation of age should be treated differently, and more harshly, than the actual possession of alcohol is embedded in the history of the ABC Act. In 1934, the first act regulating the consumption of alcohol by minors penalized any minor who falsely represents his age for the purpose of procuring any [alcoholic] beverage with a $25.00 fine or 10 days in prison, but established no com parable punish ment f or poss ession. See A N A CT TO C ONTROL THE M ANUFACTURE, T RANSPORTATION, P OSSESSION, AND S ALE OF A LCOHOLIC B EVERAGES IN THE D ISTRICT OF C OLUMBIA , ch. 4, § 30, 48 Stat. 335; D.C. Code § 25-130 (Janua ry 24, 1934). Possession was n ot adde d as an i nfractio n until 1 993. See 40 D.C. Reg. 4020 (1993) (contin ued...) 16 See 43 D.C. Reg. 4515. It created an alternative penalty of a civil fine that could be imposed for any infraction of that sect ion, inclu ding po ssession . See id. Finally, section 25130 (c) explicitly provided that the suspension of driving permits would be in addition to the penalties provided for misrepresentation of age in section 25-130 (b-1) and the civil fine author ized in s ection 2 5-130 (b-2). See D.C. Code § 25-130 (c). In construing an amendment, [t]he legislature is presumed to know the prior construction of terms in the original act, and an amendment substituting a new term or phrase for one previously construed indicates that the judicial . . . construction of the former term or phrase did not corresp ond with the legislative in tent and a d ifferent interpre tation should be given the new term or phrase. SUTHERLAND S TAT. C ONST. § 22.30 (5th ed.). The fact that the legislature stripped the basis for the Morrissey holding from the statute and replaced it with lesser p enalties lends strong sup port to our statutory analysis that th e only penalties available for underage possession of alcohol are a civil fine and suspension of driving privileg es. Thus, the language and structure of the ABC Act, as well as its legislative history, lead us to conclude that the possession of an alcoh olic bevera ge by a pe rson unde r twenty-o ne is 10 (...continued) (amending section 30 of the District of Columbia Alcoholic Beverage Control Act). The 1996 post-Morrissey amendm ents to the ABC Act are a return to the earlier distinction between misrepresentation and possession. 17 punishab le only by a civil fine as described in D.C. Code § 25-130 (b-2) and suspension of driving privileges under D.C. Code § 25-130 (c).11 The judgment of the trial court sentencing appellant to nine mo nths of probation und er D.C. Code § 25-130 (b-1) is therefore Reversed. 11 Having considered the language, purpose and legislative history of the statute, we have no occasion to app ly the rule of lenity, which is a seco ndary rule of construction. See Luck v. United States, 617 A.2d 509, 515 (D.C. 1992) (The rule of lenity can tip the balance in favor of criminal defendants only where, exclusive of the rule, a penal statute s language, structur e, purpo se and l egislativ e history leave its mean ing gen uinely in doubt. ).

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