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Novak v. State5/15/1990
The State of Arizona, through its Department of Transportation, appeals from the trial court's reversal of a Department order suspending appellee Mark Jeffrey Novak's driver's license for six months pursuant to A.R.S. § 28-452(A) and (E). The sole issue is whether a person under the legal drinking age who uses the valid driver's or identification license of a person who is over the legal drinking age to obtain an alcoholic beverage is subject to mandatory suspension of his own driver's license pursuant to A.R.S. § 28-452. We hold that he is and reverse.
The pertinent facts are undisputed. Novak was born on May 16, 1968. On May 20, 1988, Sergeant Perkins and other investigators of the Arizona State Liquor Department were at a Beach Boys concert in Gilbert, Arizona. They were looking for underage persons possessing or consuming alcohol. Perkins saw Novak and a friend drinking beer from plastic cups while they were walking away from a lighted beer concession stand. On Perkins' inquiry, Novak produced a valid Arizona identification card issued to one Matt T. Draper. Draper's identification card showed August 11, 1965 as the date of birth. Novak admitted he had exhibited Draper's identification card at the concession stand for the purpose of buying beer.
Pursuant to A.R.S. § 28-452(D), Sergeant Perkins filed an affidavit with the
Department of Transportation indicating that Novak had used Draper's Arizona identification card to obtain beer. Thereafter, the Department issued an order pursuant to A.R.S. § 28-452(E) suspending Novak's own driver's license for six months effective July 3, 1988. Novak requested a hearing before the Department pursuant to A.R.S. § 28-452(G).
A hearing was conducted before a hearing officer on August 26, 1988. The hearing officer rejected Novak's argument that A.R.S. § 28-452(A) does not authorize suspension of the driver's license of a person under the legal drinking age who obtains an alcoholic beverage using the properly issued driver's or identification license of another.
After exhausting his administrative remedies, Novak filed this administrative review action. See A.R.S. § 12-905(A). After briefing and argument, the trial court reversed the Department's order suspending Novak's driver's license. The trial court reasoned that A.R.S. § 28-452(A) contemplated the suspension of a person's driver's license only if he used his own license, not that of another person. The trial court stated in part:
The word "any" in "who is convicted of using 'any' such license" would indicate that the driver should be using his own driver's and identification license issued to him. It does not clearly indicate the use of another person's license. At the very least the section is subject to two interpretations -- his own or that of another.
Failure to clearly describe the prohibited conduct is a violation of due process.
The legislature included the words "identification of another person" in Sect. 4-241(E), A.R.S., to describe the crime and could have and should include those words in Sect. 28-452(A) as it did in Subsection (B) of A.R.S., Sect. 28-452, if it was the legislative intent to direct the suspension of the minor's driver's license.
It would also appear that the failure to have the words "license of another" in Subsection (A) when they were in Subsection (B) indicates that this was not the legislative intent.
The trial court entered a formal or
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