Opinion
C.A. No. 01A-11-003
Date Submitted: January 22, 2002
March 6, 2002
Andre M. Beauregard, Esquire, Rehoboth Beach, DE.
James J. Hanley, Esquire, Department of Justice, Wilmington, DE.
Dear Counsel:
Pending before the Court is an appeal which James P. Cleary ("appellant") has filed from a decision of the Court of Common Pleas ("CCP") affirming a decision of the Department of Motor Vehicles, Driver Improvement Unit ("DMV") revoking appellant's driving privileges. This is my decision reversing the decisions below.
FACTS
The record establishes the following facts.
In an "Official Notice of Revocation" mailed on July 27, 1998, DMV notified appellant it was revoking his driver's license and/or driving privileges. Under the section captioned "REASON FOR REVOCATION", the following information appeared beside a checked block:
DRIVING UNDER THE INFLUENCE (First Offender Election) Authorized by 21 Del. C. § 8101 Art. IV Maryland
Appellant sought a hearing.
A hearing took place on August 28, 1998 before a DMV Hearing Officer. At the hearing, the Hearing Officer noted that the only two issues were whether appellant was the person identified by the arrest summons and whether the conviction was on appeal. The Hearing Officer stated that he needed to ask appellant those two questions. Appellant's attorney responded that he believed the burden was on the State to prove those two elements and consequently, he would not "furnish any information concerning any self incrimination of the defendant."
In the appeal record is a computer-generated notice from Maryland providing the following information.
VIOLATION INFORMATION
CITATION #: U481002 VIOLATION DATE: 0412098 TRIAL DATE: 070998 LOCATION OF VIOLATION: WB 260 AT 778 SECTION VIOLATED: TA210902 B FINE: M/A DESCRIPTION OF VIOLATION:
DRIVING/ATTEMPTING TO DR WHILE UNDER INFLUENCE OF ALCOHOL
Appellant contends the document was not introduced in the record, and the transcript reflects that to be the case.
The Hearing Officer, in a document captioned "DRIVER IMPROVEMENT UNIT HEARING DISPOSITION" ("Hearing Disposition"), set forth the limited issues in the appeal and noted that appellant's attorney took the position that the burden of proof lies with the State. He then found and concluded as follows:
The Hearing Officer ruled that the above issue was irrelevant based on the following:
(1) This is a "Show Cause" hearing which requires a party to appear and "show cause" [argue] why a certain thing [revocation in this case] should not be done or permitted.
(2) The Delaware Division of Motor Vehicles received conviction information on . . . [appellant] from the Maryland District Court, Citation No. U481002, violation dated 4/12/98, Section violated TA 210902 B Driving/Attempted to Driver [sic] While Under Influence of Alcohol. (copy part of the record), and thirdly;
(3) The Driver's License Compact which Delaware and Maryland are members further states under Article I(a)(3) "The continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated."
The State of Delaware mailed an official Notice of Revocation on July 27, 1998 to become effective on July 31, 1998, to . . . [appellant] due to being convicted of driving under the influence in the State of Maryland. This revocation is authorized by 21 Del. C. Section 8101, Article IV(a)(2)(c).
It is the decision of this Hearing Officer to maintain . . . [appellant's] revocation against his Delaware driver's license.
Appellant filed an appeal therefrom with CCP.
By letter dated September 11, 1998, DMV notified appellant in pertinent part as follows:
On August 28, 1998, you appeared with your attorney . . . before . . . the Division's Hearing Officer . . . pursuant to your hearing under 21 Del. C. Section 2733. The issues for the administrative hearing were: (1) Whether the defendant was the person identified by the arrest, summons/citation; and (2) Whether the conviction is under appeal (in such case the defendant must furnish evidence that it is being appealed).
Evidence was not introduced relevant to the issues stated above. The Division of Motor Vehicles will maintain your revocation for the conviction of Driving Under the Influence in the State of Maryland as authorized by statute ( 21 Del. C. Section 8101, Article III, Article Iv(a)(2)(c) [sic] of the Driver's License Compact of which Delaware and Maryland are members. [Emphasis in original.]
On appeal, appellant argued there was no record from Maryland introduced at the hearing; the State had the burden to identify appellant as the person to whom the notice applied; and the State failed to meet its burden. The parties briefed the matter.
The CCP Commissioner filed a Report and Recommendation wherein he concluded the decision of the Hearing Officer was correct; the hearing procedure employed by DMV to implement 21 Del. C. § 2733(d) is constitutionally adequate for purposes of the due process clause and is the correct application of the statute; and the procedure does not violate appellant's privilege against self-incrimination.
See footnote 3, infra, for text of this statutory provision.
Appellant appealed from the Commissioner's report and recommendation. CCP affirmed it.
Appellant then appealed to this Court. The parties have briefed the issues, and the matter is ripe for decision.
DISCUSSION
I quote from the decision of Mooney v. Shahan, Del. Super., C.A. No. 01A-02-002, Bradley, J. at 4, aff'd, Del. Supr., No. 461, 2001, Walsh, J. (December 14, 2001), in setting forth the standard of review:
When reviewing an appeal from the Court of Common Pleas, this Court assumes the same appeal posture as that of the Supreme Court. Baker v. Connell, Del. Super., 488 A.2d 1303, 1309 (1985). In that role, a two-fold standard of review is employed. First, this Court may review any error of law de novo. Downs v. State, Del. Supr., 570 A.2d 1142 (1990). Second, the Superior Court is bound by findings of fact made by the lower court which are supported by the record and which are the product of a logical and deductive process. Id. at 1144.
The question here is what procedure must take place to insure statutory requirements and due process are met. The Superior Court recently outlined the correct procedure in Husbands v. Shahan, Del. Super., C.A. No. 00A-03-003, Stokes, J. (February 27, 2002), and I quote extensively therefrom:
As DMV agreed . . ., a citizen is entitled to a hearing pursuant to 21 Del. C. § 2733(b) if their license is revoked pursuant to 21 Del. C. § 2733(d). The latter statutory provision speaks to receiving "notice of the conviction". The notice aspect is fleshed out in Article III of Delaware's Driver's License Compact Act located at 21 Del. C., ch. 81. Article III requires the licensing authority of a party state to report a conviction. As provided in Article III, a report of a conviction shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered . . . and shall include any special findings made in connection therewith. [Emphasis added.]
The Court reads 21 Del. C. § 2733(d) in para materia with Art. III of 21 Del. C. § 8101 in order to determine the requirements of the contents of the notice of a driving under the influence conviction so that it might give the appropriate effect of the conviction as Art. IV (a)(2) of § 8101 requires. Such a reading leads to the conclusion that the notice of conviction must contain the information which a report of a conviction requires. Such a reading also leads to the conclusion that the notice of conviction received from another state must be certified because, pursuant to 21 Del. C. § 2733(d), Delaware must send certified copies of records to other states in the situation where a nonresident obtains a driving under the influence conviction.
The applicable statutes and due process require the hearing officer to submit the certified notice and report of conviction into the record. Then the burden shifts to the citizen to show any reason why his or her license should not be suspended and/or revoked. The reasons for the hearing which DMV gives, i.e., that it is limited to identity and the pendency of an appeal, are not exclusive and not statutorily mandated as limitations. The power to suspend or revoke is a discretionary "may" and thus, the hearing should not be closed-ended; e.g., a Maryland driving under the influence law, which is dissimilar to Delaware's, should not have drastic Delaware consequences.
While the transcript of the hearing will evidence a hearing which is less extensive than a probable cause hearing pursuant to 21 Del. C. § 2742, the hearing nevertheless serves the vital function to ensure licenses, which are protected interests, are revoked properly.
In 21 Del. C. § 2733(b), it is provided in pertinent part:
Whenever the Department suspends the license of any person for any reason set forth in subsection (a) of this section, the Department shall immediately notify the licensee and afford the licensee an opportunity of a hearing before the Department in the county wherein the licensee resides. Upon such hearing the Department shall either rescind its order of suspension or, good cause appearing therefor, may suspend the license of such person for a further period or revoke the license.
In 21 Del. C. § 2733(d), it is provided in pertinent part:
The Department may suspend or revoke the license of any resident of this State upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this State, would be grounds for the suspension or revocation of the license of an operator. . . .
"`Conviction' means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation . . . and which conviction . . . is required to be reported to the licensing authority." 21 Del. C. § 8101, Art. II(c).
In Art. IV(a)(2) of 21 Del. C. § 8101, it is provided:
(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for:
* * *
(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle. . . .
In 21 Del. C. § 2733(d), it is provided in pertinent part:
The Department may, upon receiving a record of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the motor vehicle laws of this State, forward a certified copy of such record to the Motor Vehicle Administrator in the state wherein the person so convicted is a resident.
This procedure was not followed in the case at hand. Specifically, DMV did not submit a certified record of conviction nor was there any consideration as to whether the Maryland driving under the influence conviction is similar to Delaware's to warrant the revocation.
Based on the foregoing, I reverse the decision below. Appellant has represented in his briefing that he no longer is a resident of Delaware. Consequently, there is no need to consider whether the matter should be remanded for another hearing.
IT IS SO ORDERED.