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Williams v. State ex rel Dep't of Public Safety3/15/2002
stead "corrected" the revocation to a period of six months, as would be the case where there was no prior revocation within five years under §6-205.1(A)(1). Department brings this appeal from the trial court's judgment. We find the trial court's determination is grounded on a clearly impermissible collateral attack on the final 1997 conviction and revocation. Hodges v. State, 1991 OK CIV APP 96, 827 P.2d 176.
The facts in Hodges are similar to those here. There, the trial court, which in fact was the same as here, refused to admit Department's evidence of two prior revocations. The trial court ruled that neither Hodges' deferred sentence on his first arrest, nor his bond forfeiture on the second, constituted "convictions" under the statute authorizing a three year revocation where there were two previous revocations. The evidence in Hodges was, as it is here, Department's uncontroverted records.
The Court of Civil Appeals in Hodges found the trial court erred in refusing Department's proffered records. The Hodges Court held, contrary to the trial court's findings, the records were admissible, and that Hodges had improperly sought to attack the validity of the two previous arrests and revocations. The Court went on to note:
..., we find the validity of both of Hodges' previous revocations beyond the reach of the current proceedings, Hodges having failed to timely object or request review thereof in 1985. To allow Hodges to now escape the mandatory revocation period imposed by 47 O.S. §6-205.1 by evidentiary objection, in our opinion, amounts to nothing more than an impermissible collateral attack on his previous revocations, a course of action we will neither condone nor permit.
The trial court in the present matter has again based its determination on such a collateral attack as was found impermissible in Hodges. The record establishes the 1997 conviction and revocation were final long before Williams' most recent arrest. Even assuming Department's 1997 determination -- that the arresting officer's affidavit was somehow insufficient -- was in any way applicable to the DUI conviction, Williams took no timely action to assert that theory. He lost any right to attack the 1997 conviction long ago.
Department's records were properly admitted and document Williams' final 1997 conviction of driving under the influence of alcohol. Under 47 O.S. Supp. 1996 §205(A)(2), revocation of driving privileges was mandatory for such a conviction. The 1997 revocation provided the requisite prior revocation under §205.1(A)(2). The Legislature has mandated that revocations pursuant to §205.1(A)(2) "shall not be modified."
Use of "shall" by the Legislature is normally considered a legislative command. Comerford v. Pryor Foundry, 1999 OK CIV APP 82, 987 P.2d 434. We find nothing in §205.1(A)(2) to suggest the Legislature intended to afford district courts any discretion under the circumstances set out therein. The trial court erred, as a matter of law, in modifying Williams' revocation. The trial court's judgment is therefore REVERSED, and this matter is REMANDED. The trial court is instructed to enter judgment in favor of Department.
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