Opinion
No. 4-276 / 03-2090
May 14, 2004.
Appeal from the Iowa District Court for Hancock County, Jon Stuart Scoles, Judge.
William Bruck appeals from the six-year revocation of his driver's license. AFFIRMED.
David Johnson of Brinton, Bordwell Johnson, Clarion, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, and Karen Kaufman, County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
William Bruck was charged with third-offense operating while intoxicated (OWI) for events that took place on April 10, 2003. At trial, Bruck stipulated to driving while intoxicated on April 10, 2003, and that he had previously been convicted of OWI on January 18, 2000. The State introduced documentary evidence of a prior Nebraska OWI conviction from 1996. However, the trial court concluded the State failed to prove Bruck's Nebraska conviction beyond a reasonable doubt. Bruck was convicted of second-offense OWI.
Bruck's sentencing hearing was held on November 18, 2003. At the hearing, the prosecutor asked Bruck if he has been convicted of OWI in Nebraska in 1996. Bruck's counsel initially objected to the question on relevancy grounds, and then based on the Fifth Amendment. Counsel later withdrew his objection to the question, and Bruck admitted his 1996 conviction. Bruck was sentenced to thirty days in jail with all but seven days suspended. The court ordered briefs addressing the question of how long Bruck's driving privileges were to be revoked. Following submission of the briefs, the court ordered a six-year license revocation pursuant to Iowa Code section 321J.4(4) (2003) based upon the documentary evidence submitted at Bruck's trial and his admission at sentencing.
Bruck appeals the six-year license revocation. He contends the court erred in considering his Nebraska OWI conviction under the principles of collateral estoppel and double jeopardy. He also contends his Fifth Amendment right to remain silent was violated. Finally, Bruck claims the evidence is insufficient to establish the Nebraska conviction, and the court improperly considered an unproven offense at sentencing.
We conclude Bruck has failed to preserve error on his claims regarding collateral estoppel, double jeopardy, and the violation of his right to remain silent. Counsel withdrew his objections at the sentencing hearing. Accordingly, we will not consider them on appeal. See State v. Thomas, 520 N.W.2d 311, 312 (Iowa Ct.App. 1994).
We first note section 321J.4(4) merely requires the sentencing court to perform the first step in a civil revocation of a driver's license. State v. Dumire, 443 N.W.2d 338, 338-39 (Iowa 1989). It requires the court to order the Department of Transportation (DOT) to revoke a driver's license for six years for a "plea or verdict of guilty of a third or subsequent violation" for OWI. It does not expressly require a conviction of the offense of OWI third offense. Although Bruck's criminal prosecution for OWI and his civil license revocation proceedings arose from the same incident, they are separate and distinct actions, each proceeding independently from the other. Heidemann v. Sweitzer, 375 N.W.2d 665, 668 (Iowa 1985). We have nothing before us as to whether the DOT acted on the court's direction. We conclude sufficient evidence exists to show Bruck was convicted three times for OWI. The State presented documentary evidence of Bruck's 1996 Nebraska conviction. This evidence was buttressed by Bruck's own testimony.
We also conclude the sentencing court did not rely on an unproven offense. As stated above, Bruck's license revocation proceedings exist separately from his criminal conviction. Although the State failed to prove a third conviction for OWI beyond a reasonable doubt in the criminal proceeding, it did prove the Nebraska conviction by the requisite proof at the sentencing hearing. As such, there is no error.