
    Marcus HALL, Plaintiff-Appellant, v. STATE of Louisiana Through DEPARTMENT OF PUBLIC SAFETY, OFFICE OF MOTOR VEHICLES, DRIVER MANAGEMENT BUREAU, Defendant-Appellee.
    No. 84-647.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 22, 1985.
    
      Patrick L. Durusau, Jena, for plaintiff-appellant.
    Ralph W. Stephenson, Jr., Baton Rouge, for defendant-appellee.
    Before STOKER, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Plaintiff Marcus Hall, an adjudicated habitual offender, requested that defendant Department of Public Safety (DPS) restore his driving privileges. DPS denied plaintiffs request. Plaintiff then filed a petition in district court seeking restoration of driving privileges, which was opposed by DPS. The trial judge held for defendant DPS. Plaintiff appeals. We reverse and render.

The facts in this case are simple and undisputed. They are presented to this court, as they were at trial, by stipulation of the parties.

Plaintiff was adjudicated an habitual offender on September 17, 1980, pursuant to the provisions of Louisiana Revised Statute 32:1472. Based on this adjudication, DPS terminated plaintiffs driving privileges and required plaintiff to surrender his driver’s license pursuant to Revised Statute 32:1477(A).

It is important to note that neither section 1472, which defines “habitual offender,” nor section 1477(A), which directs DPS to revoke the driving privileges of habitual offenders, provides minimum or maximum time limits for the revocation. These provisions simply terminate driving privileges; it is left to the offender to seek restoration of driving privileges, under separate statutory authority.

In early 1984, plaintiff sought restoration of his driving privileges and the return of his license. He asserted to DPS that his driving privileges should be restored under the following statutory provision:

“No license to operate motor vehicles in this state shall be issued to a habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state until all of the following requirements have been complied with:
(1) A period of three years has elapsed since the date of the order of the court finding such person to be a habitual offender.
(2) Financial responsibility requirements are met.
(3) If after the lapse of the three year period provided above, the department determines that the person has faithfully complied with the order declaring him to be a habitual offender, the department shall restore to such person the privilege to operate a motor vehicle in this state.”

La.Rev.Stat. 32:1479.

DPS agreed that plaintiff had met all the requirements of the statute: more than three years had passed since the date of his adjudication (September 17, 1980), plaintiff proved financial responsibility, and plaintiff had faithfully complied with the order declaring him to be an habitual offender. However, DPS refused to restore plaintiffs driving privileges.

On September 17, 1980, when plaintiff was adjudicated an habitual offender, section 1479 was similar in substance to its present form, except the statutory time period set forth in subsection (1) and again in subsection (3) provided for a lapse of at least five years from the date of adjudication before restoration of privileges could be considered. Acts 1982, number 555, section 1 amended this statute to provide for the present three year lapse. DPS reasoned that to restore plaintiffs driving privileges in accord with the time period contained in the statute as amended in 1982 would give retroactive effect to that amendment.

Plaintiff filed suit in district court seeking to overturn DPS’s decision. See La. Rev.Stat. 32:1478. The district judge, however, in reasons for judgment rendered May 21, 1984, agreed with the position taken by DPS. This appeal followed.

Initially, we note that any special considerations governing our review of administrative actions are inapplicable in this case. The sole issue presented for our consideration is whether the current version of Revised Statute 32:1479 or its predecessor before the 1982 amendment governs plaintiffs claim for restoration of driving privileges. In interpreting this statute enacted (and amended) by our legislature, this court need not grant any deference to the interpretation favored by DPS. We are presented solely with a question of law, and deciding such questions is entirely within our province.

We note that it is stipulated that plaintiff meets all the requirements of the current section 1479. DPS states that but for its belief that plaintiff must wait five years before regaining driving privileges, plaintiff would have his license and privileges returned to him. We add that section 1479 mandates that DPS restore driving privileges to an adjudicated offender if that statute’s criteria are met. Thus, if we find that the statute, as amended in 1982, applies to plaintiff, then DPS must return his license and driving privileges.

We hold that section 1479, in its present form,' is applicable to plaintiff. The reasoning of DPS and of the trial judge to the contrary is mistaken. There is simply no problem of retroactivity presented by this case. Section 1479 was not involved in plaintiffs adjudication as an habitual offender, nor in the termination of his driving privileges. Section 1479 merely provides plaintiff with a statutory means of regaining his driver’s license and privileges. Plaintiff’s adjudication as an offender is not retroactively affected by a restoration of privileges under section 1479.

It has been repeatedly held that the laws governing habitual offenders are civil in nature. See, e.g., State v. Woodard, 387 So.2d 1066, 1068 (La.1980). Thus, we are not presented here with a criminal statute which has had its penalty provisions changed subsequent to a conviction. Potential ex post facto considerations, if any, are irrelevant. Plaintiff presents a claim of the same nature as that presented by any other petitioner in a civil matter.

Section 1479 does not affect any vested rights of the State in the remedy that it affords plaintiff. That section, on its face, does not affect plaintiff’s prior adjudication. There is no indication that the legislature intended to treat those adjudicated as habitual offenders prior to the passage of the amendment to section 1479 differently than those adjudicated as habitual offenders subsequent to its passage. In the absence of such an indication, and because the statute is facially applicable to plaintiff, we find that he is entitled to the remedy thereunder.

DPS concedes that plaintiff meets the criteria of section 1479, which mandates restoration of driving privileges if its provisions are met. We have the authority to order relief in this case. La.Rev.Stat. 32:1478; see also La.Code Civ.Proc. art. 2164. Because we find that the current form of Louisiana Revised Statute 32:1479 applies to plaintiff, we grant his remedy thereunder.

DECREE

It is ordered, adjudged, and decreed that driving privileges are hereby restored to plaintiff Marcus Hall. It is further ordered, adjudged, and decreed that defendant State of Louisiana, Department of Public Safety, return to plaintiff his driver’s license. Costs of this appeal are assessed to defendant.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns written reasons.

YELVERTON, J., concurs for the reasons assigned by STOKER, J.

STOKER, Judge,

concurring.

I fully concur with the expressions contained in the majority opinion. I add a few additional observations which I feel worthy of note.

The plaintiff-appellant lost his driving privileges as a result of a court-conducted inquiry under LSA-R.S. 32:1471, et seq. which is entitled “MOTOR VEHICLE HABITUAL OFFENDER LAW.” The declaration of policy contained in Section 1471 of the statute reads as follows:

“It is hereby declared to be the policy of this state:
(1) To provide maximum safety for all persons who travel or otherwise use the public highways of this state; and
(2) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts, and the statutorily required acts of its administrative agencies; and
(3) To discourage repetition of criminal acts by individuals against the peace and dignity of this state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of the traffic laws.”

Marcus Hall was adjudicated an habitual offender on September 17,1980, under R.S. 32:1472, and was required to surrender his driver’s license pursuant to R.S. 32:1477(A). The law at the time of that proceeding empowered the court to revoke driving privileges. Legislative amendment in 1982 placed the responsibility with the Department of Public Safety (DPS). La.Acts 1982, No. 555, Sec. 1. Under neither the old provisions nor the amendments were the responsible bodies given the authority to specify the period of suspension. Their only function was to make the determination to suspend, based on the criteria in Section 1472.

Restoration of driving privileges to an habitual offender is governed by LSA-R.S. 32:1479. The provisions of this section should not have been involved in the 1980 adjudication. They are expressions by the Legislature that at some point, the licensing of an habitual offender is no longer in contravention of the policy declared in Section 1471. The suspension of a driver’s license under this chapter is not intended as a punishment of the driver; it is a method of protecting the safety of persons using public thoroughfares. The Legislature has determined that once the habitual offender has met the requirements of Section 1479, there is no longer any reason to deny him driving privileges.

It appears from the judgment issued in plaintiff-appellant’s case dated September 17, 1980, that he was not only adjudged an habitual offender within the meaning of LSA-R.S. 32:1472, but the judgment provided that “he is prohibited from operating a motor vehicle on the public highways of the State of Louisiana for a period of five years beginning September 16, 1980.” Thus, the judgment stated a positive prohibition although the statute did not call for a judgment in such form and, on the contrary, contained a specific separate provision in the statute (Section 1479) providing a minimum time before which the habitual offender could not apply for reissuance of a driver’s license. Before 1982, that period was five years. It was shortened by La. Acts 1982, No. 555, to three years. Nevertheless, the DPS claims that Marcus Hall should be bound by the term provided in the 1980 judgment. To apply the new law, the DPS argues, would give the amendment improper retroactive effect.

I am of the opinion that it was never intended by the Legislature that judgments (now simply orders of the Department) revoking licenses should contain provisions which in themselves fixed a period during which the revocation should last. When the Legislature in 1982 changed the period for seeking restoration of driving privileges from five years to three years, it thereby indicated that the waiting period was a policy matter over which the Legislature intended to exercise control. Viewed in this light, I am of the opinion that questions of retroactivity are not relevant to the issue in this case. The statute is not penal in nature and has been held to be civil in nature. State v. Woodard, 387 So.2d 1066 (La.1980); State v. Hill, 383 So.2d 67 (La. App. 3d Cir.1980); State v. Wilson, 354 So.2d 1077 (La.App. 2d Cir.1978), and State v. Skyeagle, 345 So.2d 189 (La.App. 3d Cir.1977). No issues of ex post facto law or vested rights arise. In fact, if in 1982 the Legislature had increased the waiting period, say to six or seven years, plaintiff-appellant could not have complained. He would have had to adhere to the law and would have had to wait out the prescribed period.

I think the logic of the analysis given above is supported if one recalls the policy declaration with which the statute opens, considers the fact that the statute is civil in nature, and recognizes that the Legislature is free to set policies for driving on the State’s highways.

The trial court in this case remarked in its reasons for judgment that its judgment of September 17, 1980 was a final judgment. This of course is true. However, as noted above, it is my opinion that the positive prohibition provision probably went beyond what was legislatively authorized. Accordingly, under our broad power contained in LSA-C.C.P. 2164, I would not hesitate under the circumstances to consider this particular provision of the judgment as purely ministerial in force and a provision which we may ignore.

In short, the Legislature fixes the period of time that must pass before driving privileges may be restored, and not the tribunal (judicial or administrative) which revokes the license in the first instance.  