
    Delima v. McCullion, Registrar, Bureau of Motor Vehicles. 
    (No. 86-3104
    Decided April 24, 1987.)
    Court of Common Pleas of Montgomery County.
    
      Matthew W. Wilson, for plaintiff.
    
      Anthony J. Celebrezze, Jr., attorney general, and Sharon M. Chambers, for defendant.
   Meagher, J.

This matter is before the court on plaintiffs motion to declare Ohio Adm. Code 4501:1-1-16 unconstitutional.

The facts indicate that defendant suspended plaintiffs driver’s license for a six-month period pursuant to R.C. 4507.08(A) which forbids the issuance of a driver’s license to an alcoholic. Ohio Adm. Code 4501:1-1-16(B) defines “alcoholic” as anyone convicted three or more times within the immediately preceding three-year period of driving under the influence of alcohol. Although his suspension has run, plaintiff nevertheless urges this court to decide whether Ohio Adm. Code 4501:1-1-16 is constitutional. Plaintiff argues that this matter is jus-ticiable because he and others could again be subjected to the sanctions imposed by R.C. 4507.08. The court finds that the controversy here is one likely to recur and may in the future again evade review. Therefore, the issues presented are not moot. United States v. New York Tel. Co. (1977), 434 U.S. 159; Roe v. Wade (1973), 410 U.S. 113.

Plaintiff claims that the definition of “alcoholic” set forth in Ohio Adm. Code 4501:1-1-16 is violative of the Due Process Clauses of the Ohio and United States Constitutions, because it conclusively presumes that a person is an alcoholic if convicted of driving under the influence of alcohol three times within a three-year period. In support of the constitutionality of Ohio Adm. Code 4501:1-1-16, defendant maintains that if plaintiff was accorded his constitutional rights at the time of his three convictions, his due process rights were protected and the suspension imposed is but a consequence of prior judicial determinations.

A driver’s license may not be taken away without due process of law. Bell v. Burson (1971), 402 U.S. 535. Conclusive presumptions violate due process. Williams v. Dollison (1980), 62 Ohio St. 2d 297, 16 O.O. 3d 350, 405 N.E. 2d 714.

“Due process of law implies, in its most comprehensive sense, the right of the person affected thereby to be present before the tribunal which pronounces judgment * * * and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, such is not due process of law.” Id. at 299, 16 O.O. 3d at 351, 405 N.E. 2d at 716.

The court in Gatts v. State (1984), 13 Ohio App. 3d 380, 13 OBR 463, 469 N.E. 2d 562, found that the definition of “alcoholic” in Ohio Adm. Code 4501:1-1-16 established a conclusive presumption and was, therefore, unconstitutional. “The frequency of convictions for driving under the influence of intoxicating liquor may or may not be indicative of such status. * * * It is not the fact of the convictions, which appellant does not contest, but the result of such fact, i.e., the status as an alcoholic, which is the substance of the conclusive presumption. The appellant has never had the opportunity to offer evidence on the existence of the essential condition which would mandate the suspension of his * * * license.” Id. at 382, 13 OBR at 465, 469 N.E. 2d at 563.

In the instant matter, plaintiff’s status as an “alcoholic” is conclusively presumed by virtue of his three drunk driving convictions. Ohio Adm. Code 4501:1-1-16 abrogates an individual’s right to controvert every material fact which bears on the matter, and, therefore, establishes a conclusive presumption violative of due process.

Accordingly, plaintiff’s motion to declare Ohio Adm. Code 4501:1-1-16 unconstitutional is sustained.

Judgment accordingly.  