Judges: MARK PRYOR, Attorney General
Filed Date: 11/19/2002
Status: Precedential
Modified Date: 7/5/2016
The Honorable H.G. Foster, Prosecuting Attorney Twentieth Judicial District P.O. Box 1105 Faulkner County Courthouse Conway, AR 72033
Dear Mr. Foster:
You have presented the following question for my opinion:
Is a proposed bill constitutional if it provides for the revocation of a defendant's driver's license upon the issuance of an arrest warrant for writing a hot check (i.e., prior to conviction)?
You have attached a copy of the proposed bill that is the subject of your question. It is entitled "An Act to Enhance the Enforcement of the Arkansas Hot Check Law, and states in full:
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
Section 1. (a) An Arkansas court that issues an arrest warrant for the violation of The Arkansas Hot Check Law" may certify in writing to the Director of the Department of Finance and Administration, or the director's designee, that the warrant has been issued and request the department of revoke, suspend, or refuse to renew the debtor's motor vehicle registration or driver's license. The department is authorized to comply with the court's request.
(b) For driver's license revocation, the court must provide the department with the debtor's full name, social security number, and last known address.
(c) For motor vehicle registration revocation, the court must provide the department with the debtor's full name and the license plate number or vehicle identification number of the debtor's vehicle.
RESPONSE
It is my opinion that the proposed bill gives rise to constitutional concerns. The particular constitutional principle that is implicated by this bill is the principle of procedural due process. A possible concern also arises out of the principle of substantive due process. Both principles arise out of the
Procedural Due Process
The proposed bill is primarily problematic under the principle of procedural due process. Under this constitutional principle, the state cannot deprive individuals of protectable liberty or property interests without providing notice and an opportunity for a hearing. In Bell v.Burson,
The proposed legislation under consideration fails to provide for any notice or opportunity for a hearing prior or subsequent to the deprivation of the driver's license. In this regard, I note the proposed bill is apparently modeled after A.C.A. §
The proposed bill about which you have inquired is also distinguishable from the statutes permitting the revocation of driver's licenses upon arrest for violation of the laws prohibiting driving while intoxicated.See A.C.A. §§
Substantive Due Process
Although the principle of substantive due process does not give rise to as great a concern about the proposed bill, I will nevertheless discuss this principle for the purpose of pointing out a possible weakness in the bill. Under the principle of substantive due process, legislation that imposes a restriction on life, liberty, or property must not be arbitrary. In order for such restrictions to avoid being deemed arbitrary, they must bear an appropriate relation to their purpose. If the restriction in question impacts anything other than a fundamental right, it need only bear a rational relation to a legitimate governmental interest. See generally Washington v. Glucksberg,
Pre-Conviction Punishment
Finally, a related due process issue that gives rise to constitutional concern with the proposed bill is the fact that it permits punishment in the absence of any finding of either civil fault or criminal guilt. Pre-conviction civil remedies can be constitutionally permissible if they are imposed after the required civil burden of proof has been met. For example, the Arkansas Supreme Court has recognized the validity of pre-conviction administrative suspensions of driver's licenses under the DWI statutes as appropriate civil remedies. See Pyron v. State,
In contrast to the suspensions that can be imposed under the DWI statutes, the proposed bill about which you have inquired does not require any level of proof of the charge of hot check writing before the suspension may be imposed. Moreover, the bill does not provide that the suspension is to be temporary, nor does it provide any alternatives means for the defendant to engage in necessary driving. A pre-conviction suspension imposed in the absence of any such safeguards could constitute a violation of due process.
For all of the above-described reasons, I must conclude that the proposed bill about which you have inquired may be deemed to suffer from both procedural and substantive due process infirmities that should be addressed if the bill is to survive constitutional challenge.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General