December 28, 1976
Mr. Donald Dahlin, Secretary
Department of Public Safety
Public Safety Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-123
Authority of Department of Public Safety in driver's license revocation matters
Dear Secretary Dahlin:
You have requested an opinion based on the following factual situation:
FACTS:
On January 5, 1976, "X" was convicted of OWL The Department of Public Safety received notice of the conviction on January 12, 1976. On January 15 the Department issued an order revoking his drivers license for a period of thirty days. The revocation period expired on February 4, 1976, and on February 6, X was authorized to make application for a new driver's license. He made application on that date and was issued a temporary license. His permanent license was mailed from the Department on February 12, 1976.
On February 19, 1976, the Department received notice that X had been convicted of DWl on February 13, 1976. At the time of this conviction he surrendered the temporary license of February 6, but did not then or at any time thereafter surrender the permanent license dated February 12, 1976. As a result of the February 13 conviction, the Department, on February 25, 1976, revoked his license for a period of sixty days on the basis of records indicating two DWl convictions within the preceding four years.
On July 23, 1976, X appeared at a driver's license exam station, attempting to make application for a new driver's license. The examiner checked with the department and was told that X could not make application for a new license due to the fact he had not surrendered his driver's license which was revoked following the February 13, 1976, DWl conviction. X was advised that his period of revocation would expire sixty days after the license was received by the Department.
The specific questions you ask are:
QUESTION:
1. When a person is charged and convicted as a first offender but Department records reveal previous DWl convictions within the preceding four years, may the Department invoke the revocation periods set forth in SDCL 32-12-52(2)?
2. What constitutes the surrender of a driver's license to the Department? Did X comply with SDCL 32-12-48 by surrendering only his temporary permit to the court on the date of conviction?
IN RE QUESTION NO.1:
Subdivision (2) of SDCL 32-12-52 provides:
The department of public safety shall forthwith revoke the license or permit of any operator upon receiving a record of such operator's conviction of the following offenses:
(1) . . .
(2) A violation of the provisions of §32-23-1 when the judgment and sentence of the trial court fails to invoke the mandatory provisions of §§32-23-2 through 32-23-4 and to the extent that privileges of driving should have been revoked; . . .
SDCL 32-23-2 through 32-23-4 provide for increased periods of mandatory driver's license revocation for second and subsequent DWl convictions. However, if the prosecution does not charge and convict a person as a second or subsequent offender, the court certainly cannot, as part of the sentence, impose the mandatory revocation provided therefor. Thus, the question is whether the intent of the Legislature was to give the Department of Public Safety authority to do something which the prosecutor and court did not do.
Courts in other jursidictions have almost uniformly held that such statutes are not violative of the separation of powers doctrine. The justification, therefore, is the fact that the Legislature has declared the elimination of drunken drivers from the highway to be a compelling public interest. The mandatory and progressive license revocation scheme was established by legislation and the agency (Department of Public Safety) is merely performing a ministerial function based on the information in the public records they are required to keep. Cook v. Bright, 25 Cal. Rptr. 116; Burns v. Department of Public Safety, 328 S. 2d 819.
In my opinion, the language of subdivision (2) of SDCL 32-12-52 referring to the "mandatory provisions of §§32-23-2 through 32-23-4" means the applicable mandatory revocation period per the department's record of an individual during the previous four-year period. To otherwise interpret this provision would be to limit its application to oversights of a court of failing to revoke a license upon conviction. This interpretation does not infringe upon the province and discretion of the court regarding an increased revocation period pursuant to SDCL 32-23-2 to 32-23-4 or criminal penalties uner the habitual offender statutes.
IN RE QUEST/ON NO.2:
The answer to your second question is found in SDCL 32-12-48 which states in part:
Whenever a defendant has been convicted under the provisions of §32-23-2 or §32-23-3, the period of revocation shall commence on the date the license was surrendered to and received by the department, provided that such surrender to the court at the time of conviction shall be deemed a surrender to the department.
In my opinion the "license" referred to therein is the permanent operator's license referred to throughout SDCL 32-12 and specifically in 32-12-17. The temporary driving privileges extended to "X" were done so pursuant to SDCL 32-12-19 by issuance of a temporary "permit" which becomes "invalid when the applicant's license has been issued or for good cause has been refused." Therefore, as of the date of the second conviction of "X," the temporary permit was invalid since his permanent license had been issued (mailed by the department) at least one day previous. X was required to surrender "all valid operator's licenses then held" (SDCL 32-12-55).
The period of revocation commences on the day the valid operator's license is received by the department.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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