State Ex Rel. Van Natta v. Rising , 262 Ind. 33 ( 1974 )

Arterburn, C.J.

This appeal is from a proceeding brought under the Habitual Traffic Offenders Statute, IC 1971, 9-4-13-1 et seq. [Burns Ind. Ann. Stat. §47-2334 et seq.]. On March 2, 1973, the prosecuting attorney in Putnam County, pursuant to the aforesaid Act, filed an affidavit in the Circuit Court for a proceeding against the appellee to have his motor vehicle operator’s license revoked by automatic operation of the statute because of three (3) convictions of driving while under the influence of intoxicating liquor. Two (2) of the convictions were prior to the enactment of the statute under which the proceeding was instituted. (January, 1965, and January, 1969). The last conviction occurred on November 11, 1972, which was subsequent to the enactment of the statute. The statute specifically provides that it shall be operative when there have been three (3) such convictions, only one of which need be subsequent to the date of the enactment of the statute.

The contention is made that this statutory proceeding for the revocation of the operator’s license is ex post facto in its application because it involves two (2) offenses which occurred before the statute became effective. The trial court took this view and declared the statute unconstitutional. The State appeals from that judgment.-

The error of those who think that such a law as the one before us is ex post facto is evident from an examination of Chief Justice Marshall’s formulation of an ex post facto law as “one which renders an act punishable in a manner in which it was not punishable when it was committed.” Fletcher v. Peck (1810), 6 Cranch 87 at 138, 3 L.Ed. 162 at 178, 10 U.S. 85 at 138. Defendant in this case before us is not being punished for an act of driving while intoxicated which occurred prior to the enactment of the statute under which he is being punished. As a matter of fact, strictly speaking defendant is not being punished for driving while intoxicated. What the legislature has done is to create a new crime. The new crime or act for which defendant is being punished is the act of driving while intoxicated by one twice convicted of driving while intoxicated. It is the conviction for this new crime which triggers the imposition of the penalty simultaneously created for this new crime. This new crime with which we are here concerned is one of degree. Crimes of degree are not unknown to our jurisprudence. For instance, while it is not a crime to drink in a public place, it is a crime to drink to the degree of intoxication in a public place. IC 1971, 7-1-1-32 (11) [Burns Ind. Ann. Stat. § 12-611 (1956 Repl.)]. Similarly, discretionary sentencing procedures may involve a consideration of degree. A judge sentencing a speeder who was doing 100 m.p.h. in a 30 m.p.h. zone may consider the fact that the driver was also violating the law as he did 40 m.p.h., 50 m.p.h., 60 m.p.h. and so on on his way to the 100 m.p.h. for which he is being punished. Furthermore, it has long been recognized that the purpose of ex post facto prohibitions is to insure that no person “shall be subjected by subsequent legislation to any penalty, liability, or consequence that was not attached to the transgression when it occurred.” Blackburn v. State (1893), 50 Ohio 428 at 438, 36 N.E. 18 at 21. In other words, ex post facto provisions insure notice. Thus, habitual criminal and habitual traffic offender statutes are not ex post facto laws since they do give notice that if persons persist in certain behavior they will be punished more severely than previously.

It should be noted that even though the proceeding is not a criminal one, but is one which becomes operative upon certain criminal convictions, the statute provides for a separate revocation hearing after three (3) convictions and complies with Lawrence v. State (1972), 259 Ind. 306, 286 N.E.2d 830, in which we held that there must be a two-stage trial where a person is charged with being an habitual criminal. Thus, although this is not a criminal proceeding, it nevertheless complies with the due process requirements of similar criminal proceedings. It is true that the statute before us does have retrospective characteristics in that it takes into consideration for classification purposes certain events which were in existence or occurred prior to the enactment of the statute. We find nothing , invalid in this respect. The purpose of the law is to classify those who—in the interest of the public safety and health— should be prohibited from using the highways. The same rationale could be used where a statute prohibits a person with impaired eyesight from driving. A classification based upon conditions existing prior to the statute, although retrospective in application, is not constitutionally infirm when the classification is relevant to the objective of the statute, in this case, public safety and health. Kirtley v. State (1949), 227 Ind. 175, 84 N.E.2d 712; State Board of Barber Examiners v. Cloud et al. (1942), 220 Ind. 552, 44 N.E.2d 972, Blue v. Beach et al. (1900), 155 Ind. 121, 56 N.E. 89. The operation of this statute, which results in the deprivation of the license to drive, is not a punishment as a result of a criminal proceeding, but is rather an exercise of the police power for the protection of the public. The appellee is not receiving increased punishment for the previous convictions, but is automatically falling into a class of persons prohibited from driving on the public highways for the protection of the remaining public using the highways. We find nothing presented to us that shows the statute to be unconstitutional. The judgment of the trial court is reversed with directions to enter judgment in conformity with the statute.

Givan, Hunter and Prentice, JJ., concur; DeBruler, J., dissents'with opinion.