Lescher v. FLORIDA DEPT. OF HIGHWAY SAFETY AND MOTOR VEHICLES

985 So. 2d 1078, 33 Fla. L. Weekly Supp. 434, 2008 Fla. LEXIS 1221, 2008 WL 2608621
CourtSupreme Court of Florida
DecidedJuly 3, 2008
DocketSC07-32
StatusPublished
Cited by10 cases

This text of 985 So. 2d 1078 (Lescher v. FLORIDA DEPT. OF HIGHWAY SAFETY AND MOTOR VEHICLES) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lescher v. FLORIDA DEPT. OF HIGHWAY SAFETY AND MOTOR VEHICLES, 985 So. 2d 1078, 33 Fla. L. Weekly Supp. 434, 2008 Fla. LEXIS 1221, 2008 WL 2608621 (Fla. 2008).

Opinion

985 So.2d 1078 (2008)

James LESCHER, Petitioner,
v.
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.

No. SC07-32.

Supreme Court of Florida.

July 3, 2008.

*1079 Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, FL, for Petitioner.

Judson M. Chapman, General Counsel and Heather Rose Cramer, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Lake Worth, FL, for Respondent.

CANTERO, J.

In this case we consider whether a statutory amendment constitutes an ex post facto law. Florida law provides that after four convictions for driving under the influence (DUI), the defendant's driver's license shall be permanently revoked. After five years such drivers previously could apply for hardship licenses. The Legislature, however, recently amended the statute to remove that driver's license eligibility. The petitioner, who could have applied for a hardship license before the amendment, argues that the amendment constitutes an ex post facto law. Because the prohibition against ex post facto laws applies only to criminal punishments, however, and the provisions at issue do not constitute punishment, we conclude that the amendment is not an ex post facto law.

Below, we first explain the relevant factual, statutory, and procedural history of this case. Then we apply the test delineated in Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), to the question of whether driver's license revocation and the unavailability of a hardship license constitutes criminal punishment.

I. FACTS AND RELEVANT STATUTORY HISTORY

Lescher was convicted of DUI four times: in 1979, 1983, 1991, and 2000. Section 322.28(2)(e), Florida Statutes (2000), required that "[t]he court shall permanently revoke the driver's license or driving privilege of a person who has been convicted four times" for this offense. After his 2000 conviction, therefore, Lescher's license was permanently revoked.

Section 322.271(4), Florida Statutes (1997), formerly provided that drivers whose licenses had been permanently revoked under section 322.28(2)(e) could, after five years, petition for reinstatement of the "driving privilege."[1] A petitioner had *1080 to establish that he qualified. The Department of Highway Safety and Motor Vehicles (Department or DHSMV) then had the "discretion" to issue a "hardship license" with specific restrictions. See § 322.271(4), Fla. Stat. (1997).[2] In 1998— before Lescher's license was revoked—the Legislature amended this provision by eliminating the eligibility for hardship licenses for drivers with four DUI convictions. See 322.271(4), Fla. Stat. (Supp. 1998). However, in Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), we held invalid the session law containing the amendment because of a single-subject violation. In effect, our holding revived the pre-1998 law permitting hardship licenses. Shortly after our decision in Critchfield, however, the Legislature readopted the amendment.[3] The net effect is that when Lescher's license was revoked, he could have applied for a hardship license after five years.

In August 2005, although five years had not yet elapsed since his license was revoked, Lescher petitioned for a hardship license. The Department denied the petition, concluding that the applicable statute was the one in effect at the time of his application. Under that statute, Lescher was not eligible for a hardship license.[4]

The circuit court denied Lescher's petition for a writ of certiorari. On review, the Fourth District Court of Appeal denied a petition as well, finding no ex post facto violation. See Lescher v. Dep't of Highway Safety & Motor Veh'ls, 946 So.2d 1140, 1142 (Fla. 4th DCA 2006). However, noting that the court had "a number" of similar petitions and "anticipat[ing] that other districts will also," the court certified the following question as one of great public importance:

Does the amendment to section 322.271(4), Florida Statutes, which eliminated hardship driver's licenses effective July 1, 2003, violate the prohibition *1081 against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?

Id. We have jurisdiction and granted review. See art. V, § 3(b)(4), Fla. Const; Lescher v. Dep't of Highway Safety & Motor Veh'ls, 949 So.2d 198 (Fla.2007) (granting review).

II. CIVIL PENALTY OR CRIMINAL PUNISHMENT?

Both the United States and Florida Constitutions prohibit ex post facto laws. See U.S. Const. art. I, § 10; art. I, § 10, Fla. Const. The United States Supreme Court has defined an ex post facto law as one that (a) operates retrospectively, and (b) "make[s] innocent acts criminal, alter[s] the nature of the offense, or increase[s] the punishment." Collins v. Youngblood, 497 U.S. 37, 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); accord Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ("After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of `disadvantage,' ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable."). Thus, the prohibition on ex post facto laws applies only to criminal or penal provisions. See Westerheide v. State, 831 So.2d 93, 99 (2002). The answer to the certified question, therefore, depends on whether the unavailability of a hardship license to a driver whose license was revoked after four DUI convictions is a civil remedy or criminal punishment. "Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Hudson, 522 U.S. at 99, 118 S.Ct. 488. Under Hudson, the first step in the analysis is to ascertain the legislature's intent, and then to determine the effect of the statute under the following seven factors:

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment — retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

Id. at 99-100, 118 S.Ct. 488 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)); see Goad v. Fla. Dep't of Corrections, 845 So.2d 880 (Fla.2003) (concluding under a Hudson analysis that sections of the Florida Civil Restitution Lien and Crime Victims' Remedy Act did not operate as a criminal punishment).

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985 So. 2d 1078, 33 Fla. L. Weekly Supp. 434, 2008 Fla. LEXIS 1221, 2008 WL 2608621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lescher-v-florida-dept-of-highway-safety-and-motor-vehicles-fla-2008.