December 21, 1979

Mr. Thomas R. Havelaar 
Driver Improvement Program 
Department of Public Safety 
Pierre, South Dakota 57501

Official Opinion No. 79-49

Suspension of driver's license for failure to pay fine or comply with terms of citation--retroactive effect of statutes

Dear Mr. Havelaar:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

While drafting procedures for suspending a South Dakota resident's driving privilege for failure to comply with the terms of a citation, the question arose whether SDCL 32-12-49(6) and SDCL 32-12-49(7) would only affect citations issued after July 1, 1979, or could be interpreted as affecting citations issued before July 1, 1979.

Based on the above facts, you have asked the following question:

QUESTION: 

Does SDCL 32-12-49 affect citations issued before or after July 1, 1979?

SDCL 32-12-49 was amended by Chapters 218 and 219 of the Session Laws of 1979.  Neither chapter contained an emergency provision, and both amendments became effective July 1, 1979.

Chapter 219 substituted language in subdivision (2) of 32-12-49 and Chapter 218 added subdivisions (6) and (7).

SDCL 32-12-49, as amended, now provides, in pertinent part, as follows: 

Suspension after opportunity for hearing--Grounds--Old offenses not considered--Rules.  The department of public safety may suspend the license of an operator after opportunity for hearing pursuant to chapter 1-26 if hearing is demanded, upon a showing by its records or other sufficient evidence that the licensee: 

(6)  Has failed to pay a fine or comply with the terms of a citation issued in the state; or 

(7)  Has failed to pay a fine or comply with the terms of a citation issued by a state covered by the nonresident violators compact.

Your question is answered as follows.  Subdivisions (6) and (7) of SDCL 32-12-49 affect only failures to pay a fine or failures to comply with the terms of a citation in those cases where such failure to pay, or failure to comply, occurred after July 1, 1979. Such a “failure” to pay or comply is the controlling event, not the date of imposition of fine or issuance of citation. Necessarily, citations issued after July 1, 1979 (when failure has occurred) are affected.  However, there may be instances of issuance before July 1, 1979, where the failure occurred after that date, to which these provisions would also apply.

The applicable rule of statutory construction is that, in the absence of clearly expressed legislative intent, retroactive effect will not be given to a statute.  That rule is recognized by the Supreme Court of South Dakota, and several cases enunciating the rule are annotated as footnotes to SDCL 2-14- 21.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:CBL:esp