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Minchenko v. Vermont Commissioner of Motor Vehicles12/18/1995
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Defendant driver sued the Commissioner of Motor Vehicles to vacate a license suspension for a third conviction of driving while under the influence (DUI) and to require that any suspension be based on a record of DUI, first offense. The Windsor Superior Court granted the State's motion for summary judgment. We affirm.
In August 1994, defendant was cited for DUI, refusal. Pursuant to 23 V.S.A. § 1205 he was also given a notice of intent to suspend his driver's license. Defendant pled not guilty to the criminal charge and requested a hearing with respect to the civil suspension. At the final hearing on the suspension, defendant stipulated to a finding in favor of the State, and his license was suspended for six months. He subsequently pled guilty to a charge of DUI, first offense, and was sentenced to serve three months to two years in jail, with all time to serve suspended, a fine, and probation.
Following the criminal conviction, the State issued a second notice suspending defendant's driver's license for three years pursuant to 23 V.S.A. § 1208(b). The suspension was based on the Department's motor vehicle records, reflecting prior convictions for "DW1" in June 1981 and "DW2" in January 1983.
Defendant brought the present action to vacate the State's second suspension notice and to require that any suspension be based upon a record of DUI, first offense. The court granted the State's motion for summary judgment, and this appeal followed.
At issue is action the commissioner took in accordance with 23 V.S.A. § 1208(b), which provides:
Upon a third conviction of a person violating a provision of section 1201 of this title and upon final determination of any appeal, the court shall forward the conviction report forthwith to the commissioner of motor vehicles. The commissioner shall immediately revoke the person's operating license, or nonresident operating privilege or the privilege of an unlicensed operator to operate a motor vehicle for three years and until the defendant complies with section 1209a.
Defendant's sole argument is that the DUI court identified his conviction as a first offense and that the principle of separation of powers embodied in Chapter II, § 5 of the Vermont Constitution bars administrative agencies like the Department of Motor Vehicles from exercising judicial power to change the nature of his criminal conviction and the consequences that flow from it.
It is important to note that defendant does not challenge the constitutionality of the statutory license suspension scheme as a whole. He rather limits his argument to the point that if the DUI court denominated his conviction as a first offense, the commissioner, who serves in the executive, not the judicial, branch of government, lacks the power to change the nature of the conviction in her suspension process.
We disagree, because the commissioner did not effect any change in the nature or incidents of the criminal conviction. It is true, but irrelevant to the present case, that the determination of whether a person is subject to liability as a subsequent offender is a criminal rather than a civil proceeding. State v. Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 280 (1967). Thus, under 23 V.S.A. § 1210 the number of DUI convictions is relevant to the sentencing court, since enhanced criminal penalties may result.
But the suspension or revocation of an operator's license as a result of a DUI conviction is an administrative, not a criminal, action performed by the Commissioner of Motor Vehicles. In re Bolio, 126 Vt. 424, 427, 234 A.2
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