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Mcguire v. State4/17/1991
This appeal is from an order of the district court affirming a Department of Revenue and Taxation's (Department) report and decision suspending appellant Thomas McGuire's driver's license for one year, pursuant to W.S. 31-5-233 and 31-7-128, because of a second driving while under the influence (DWUI) conviction.
We affirm.
Appellant presents the following issues:
I. Whether the Department of Revenue and Taxation erred in its interpretation of W.S. 31-7-128 and subsequently:
A. Erred in imposing a second DWUI penalty rather than a first offense DWUI penalty;
B. Erred in treating the second DWUI conviction as a second offense when the district court treated it as a first offense; and
C. Abused its power of discretion and therefore acted unconstitutionally.
II. W.S. 31-7-128 is unconstitutional.
FACTS
Appellant Thomas McGuire was arrested for DWUI on June 7, 1983, in violation of W.S. 31-5-233. At that time, Gooden v. State, 711 P.2d 405 (Wyo. 1985), was pending before the Wyoming Supreme Court presenting the question whether Wyoming's DWUI statute was constitutional. Appellant, on September 11, 1983, joined other cases then before the court to challenge the constitutionality of W.S. 31-5-233. In the Gooden case, the Wyoming Supreme Court held the statute constitutional. Appellant's case came to trial on December 19, 1984. He appeared pro se and pled guilty to the DWUI charge.
Appellant was convicted again for DWUI on September 11, 1989. Upon receipt of appellant's driver record, the Department, pursuant to W.S. 31-5-233 and 31-7-128, notified appellant that his driver's license would be suspended for one year.
Appellant requested an administrative hearing to challenge the length of driver's license suspension. At the hearing he asserted that the length of time between his first arrest (June 7, 1983) and second arrest (July 11, 1989) exceeded the five-year period prescribed in W.S. 31-7-128. He contended that the Department must use either the date of offense or the date of conviction, not both, to determine when the five-year period would begin which would enhance the subsequent DWUI conviction. Appellant argued that the date of arrest for his first DWUI conviction should have been the controlling date.
The Department, upon review of the hearing record and its interpretation of W.S. 31-7-128, determined that the offense and conviction of the second DWUI occurred within five years of the first DWUI conviction. Appellant's driver's license was suspended for one year — a first offense DWUI penalty would have resulted in a 90-day suspension.
DISCUSSION
Central to this appeal is the Department's interpretation of W.S. 31-7-128 (June 1989 pamphlet), which states in pertinent part:
"(b) Upon receiving a record of a driver's conviction under W.S. 31-5-233 or other law prohibiting driving while under the influence, the division shall suspend the license * * * for:
"(i) Ninety (90) days for the first conviction;
"(ii) One (1) year, if the person has been previously convicted once under W.S. 31-5-233 or other law prohibiting driving while under the influence within the five (5) year period preceding:
"(A) The date of the offense upon which the conviction is based; or
"(B) The date of the conviction at issue." (emphasis added)
The standard of judicial review for administrative actions is governed by W.R.A.P. 12.09 and W.S. 16-3-114(c). Wyoming Statute 16-3-114(c)(ii) states the court shall set aside agency action, findings and
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