State v. Myers

411 N.W.2d 402, 1987 S.D. LEXIS 333

• Court: South Dakota Supreme Court
• Decided: August 19, 1987
• Docket: 15601
• Status: Published

Opinions

MILLER, Justice.

This case involves the propriety of a sentence consisting in part of a lifetime revocation of driving privileges for a DUI (third offense) (felony). We affirm.

FACTS

Thomas Myers (Myers), was charged with and pleaded guilty to driving under the influence (DUI) in violation of SDCL 32-23-1(2) and SDCL 32-23-4. A presen-tence investigation was ordered. Based upon Myers’ long history of alcohol abuse and prior felony convictions, the trial court imposed a two-year sentence in the South Dakota State Penitentiary and unconditionally revoked all driving privileges for the remainder of Myers’ life.

ISSUE

Myers argues that the trial court abused its discretion in revoking his driving privileges for the remainder of his life.

PROPORTIONALITY REVIEW

Myers asks this court to apply an Eighth Amendment proportionality review to the lifetime revocation of his driving privileges while State asserts that the proportionality review does not apply.

The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), provided a three-prong analysis for determining the proportionality of a sentence under the Eighth Amendment. Subsequently, we held in State v. Williamson, 342 N.W.2d 15, 18 (S.D.1983), that “we must consider the proportionality of the sentence when a life sentence without parole is imposed.” (Emphasis in original.) See also State v. Dillon, 349 N.W.2d 55 (S.D.1984). Both Williamson and Dillon were modified by State v. Weiker, 366 N.W.2d 823 (S.D.1985), wherein we extended the Eighth Amendment proportionality review to felony sentences for a term of years. However, we further stated in Weiker that we would not subject every felony sentence to exhaustive review. In Weiker, we quoted the United States Supreme Court in Solem v. Helm as stating:

‘We do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.... Successful challenges to proportionality of particular sentences will be exceedingly rare.’

Weiker, 366 N.W.2d at 827 (citations omitted).

In light of the foregoing, this court will not extend an Eighth Amendment proportionality analysis to that part of a felony sentence which consists in the lifetime revocation of a driving privilege.¹ Cf. State v. Crotinger, 75 Ohio App. 443, 62 N.E.2d 494 (1945). Revocation of Myers’ driver’s license was done for the protection of the public and not merely for the purpose of enhancing his punishment.²

ABUSE OF DISCRETION

Nor do we find that the trial court acted unreasonably or abused its discretion in the lifetime revocation of Myers’ license. Myers was sentenced under the purview of SDCL 32-23-4, which provides:

If conviction for a violation of .§ 32-23-1 is for a third offense, or subsequent offense thereafter, the person is guilty of a Class 6 felony, and the court, in pronouncing sentence, shall unconditionally revoke the defendant’s driving privileges for such period of time as may be determined by the court, but in no event less than one year from the date of his final discharge. If the person is convicted of driving without a license during that period, he shall be sentenced to the county jail for not less than ten days, which sentence may not be suspended.

At sentencing, the trial judge openly reviewed Myers’ record with him. This record consisted of seven prior felony convictions (mostly check-related convictions) with eleven DUI convictions in the states of South Dakota, Texas, and Colorado. On at least three previous occasions, Myers had been arrested for driving without a license or driving under suspension or revocation. Myers appeared at sentencing with a broken nose, which was the result of a drunken spree while he was free on bail. Further, Myers has been unsuccessfully hospitalized for alcohol treatment on seven different occasions since 1969. The trial court stated at sentencing:

.... I’m going to unconditionally revoke your driving privileges for the remainder of your life because I feel that your history is [a] clear indication that you are not able to stop drinking.

Myers claims that there is little rationality for a lifetime revocation because the sentence would presuppose that Myers can never again gain sobriety or ever again safely operate a motor vehicle in this state. Myers further contends that the punishment is far in excess of anything justified in his prior record and that his driving record reveals no aggravating circumstances such as an accident or a fatality.

We do not agree with Myers. First, his license has been permanently revoked for the public’s safety. We simply cannot overlook the awesome duty owed to society to attempt to insure safety on the highways of this state. Under SDCL 32-23-4, the trial court has the capability, authority, and responsibility to determine whether a lifetime revocation is appropriate under the circumstances.

Secondly, in light of his forty-year problem with alcohol, his several unsuccessful hospital treatments for alcohol, and numerous DUI convictions, Myers has demonstrated that he is not a likely candidate for rehabilitation. He does not deserve to possess the privilege of driving, primarily because of his lack of concern for the safety of others and his general disrespect for the law and society in general. This court will not wait for Myers to become involved in a serious accident, and perhaps one that would maim or kill, before approving the revocation of his license privilege. In a case such as this, a lifetime revocation is reasonable under the police power of the state pursuant to SDCL 32-23-4. The trial court has not abused its powers or discretion in imposing the lifetime revocation.

Affirmed.

WUEST, C.J., and MORGAN and SABERS, JJ., concur. HENDERSON, J., specially concurs.

1 . In Matter of Hansen, 298 N.W.2d 816 (S.D.1980), we cited Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 631, 164 N.W.2d 351, 352-53 (1969), as stating: "The right of a citizen to operate a motor vehicle upon the highways of this state is not a natural or unrestricted right, but a privilege which is subject to reasonable regulation under the police power of the state in the interest of the public safety and welfare.” 298 N.W.2d at 817 (citations omitted).

2 . See generally 7A Am.Jur.2d Automobile and Highway Traffic § 112 (1980); 60 C.J.S. Motor Vehicles § 164.1 (1969); Szczech v. Commissioner of Public Safety, 343 N.W.2d 305 (Minn.App.1984); Anderson v. Commissioner of Highways, 126 N.W.2d 778, 783-84 (Minn.1964). Cf. State v. Blood, 360 N.W.2d 820, 821 (Iowa 1985); State v. Pettit, 360 N.W.2d 833 (Iowa 1985). In Thompson v. Thompson, 78 N.W.2d 395, 399 (N.D.1956), it is stated that:

The question as to whether the revocation of a license because of an act for which the licensee has been convicted or because of the conviction itself is an added punishment has frequently been before the courts. The universal holding is that such a revocation is not an added punishment, but is a finding that by reason of the commission of the act or the conviction of the licensee, the latter is no longer a fit person to hold and enjoy the privilege which the state had theretofore granted to him under its police power. The authorities agree that the purpose of the revocation is to protect the public and not to punish the licensee. (Citations omitted.)