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Moreno v. State6/9/1989
Petitioner Louis L. Moreno, a self-employed mechanic, challenges a district court affirmance of the proposed suspension of his driver's license by the State of Wyoming. He argues that W.S. 31-7-105(d) (Cum.Supp. 1988), which denies an independent administrative hearing examiner the discretion to allow limited driving privileges to a person convicted of driving while under the influence (DWUI) twice in a five year period, creates an irrebuttable presumption of the person's unsafe driving behavior in violation of the federal and state constitutions.
We affirm.
Moreno was convicted of driving while under the influence (DWUI) in violation of W.S. 31-5-233 (Cum.Supp. 1985) on June 25, 1985. On November 3, 1987, he was arrested and charged with DWUI in violation of W.S. 31-5-233 (Cum.Supp. 1988). He later received notice of a ninety-day suspension of his license based on the results of a field chemical test under W.S. 31-6-102(e) (Cum.Supp. 1988).
On January 5, 1988, Moreno pled guilty to his second DWUI violation and was convicted. In a January 29, 1988 letter, respondent the State of Wyoming Department of Revenue and Taxation (Department) notified him that under W.S. 31-7-105(d)(iii)(A) (Cum.Supp. 1988), his driver's license would be suspended through November 30, 1988, because the January offense was Moreno's second conviction for DWUI within the same five-year period.
On February 23, 1988, the Department received a letter from Moreno requesting a hearing on the enhanced suspension of his license and arguing that he needed to drive to be able to work. Moreno received timely notice of a hearing and was granted a temporary driver's permit for March 3, 1988, to May 2, 1988. The hearing took place on April 5, 1988. The hearing officer concluded in his written order: "Wyoming Law prohibits modification of a suspension based upon a second Driving While Under the Influence conviction within a five (5) year period." Moreno's driving privileges were then ordered suspended from May 3, 1988, through February 2, 1989.
Moreno challenged the constitutionality of the enhanced suspension provision in W.S. 31-7-105(d)(iii)(A) in a petition for judicial review in the district court filed April 29, 1988. On November 29, 1988, the district court affirmed the hearing officer's final order in all respects. This appeal from the district court's decision followed.
Moreno's issue focuses on that portion of W.S. 31-7-105(d), which provides in pertinent part:
* * * the [hearing examiner's] discretion to continue or modify any order of suspension so as to allow driving privileges is limited as follows:
(iii) It may be extended to a person convicted under W.S. 31-5-233 or other law prohibiting driving while under the influence only if:
(A) Within the five (5) year period preceding the date of the most recent offense, the person has not been convicted under W.S. 31-5-233 or other law prohibiting driving under the influence * * *.
Moreno admits in his brief that he has received procedural due process. Cf. Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94 (1971). He also admits the classification made by the state in treating second time DWUI offenders differently from other DWUI offenders is rationally related to a legitimate state purpose. Moreno further concedes that a Wyoming driver's license is a privilege and not a property right and recognizes this court's recent pronouncement that proceedings to suspend or revoke a driver's license are civil, not criminal , in nature. Department of Revenue and Taxation v. Hull, 751 P.2d 351, 356 (Wyo. 1988).
Having mad
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