Leo Eugene SWANSON, Petitioner and Appellant, v. STATE of South Dakota, DEPARTMENT OF COMMERCE AND REGULATION, Respondent and Appellee, 417 N.W.2d 385

WUEST, Chief Justice. Appellant, Leo Swanson, appeals a circuit court decision affirming a State Department of Commerce and Regulation (Department) decision refusing to issue him a restricted driver’s license. We affirm. On August 2, 1985, appellant was convicted of Driving While Under the Influence of an Alcoholic Beverage (DWI) in violation of SDCL 32-23-1. On April 13, 1986, he was arrested and charged with the second DWI offense. Following the second arrest, he refused a chemical test of his blood under the provisions of the Implied Consent Law. SDCL 32-23-10.

The Department was informed of appellant’s refusal on April 16,1986 and notified him his driver’s license would be automatically revoked under the provisions of SDCL 32-23-11 unless he petitioned for a hearing before the Department within thirty days. He did not request any hearing, and the Department revoked his driver’s license for one year, pursuant to SDCL 32-23-11. This

section also states that the Secretary of Commerce and Regulation may adopt rules for restricted licenses as to (1) eligibility; (2) application; (3) determination; (4) limitations; and, (5) grounds for revocation. Pursuant thereto, the Secretary has adopted a rule for restricted licenses providing in part: A person who has previously been convicted of a violation of SDCL 32-23-1 or whose license has been revoked under the provisions of SDCL 2-23-11 within the five-year period preceding the date of refusal is not eligible to receive a restricted license.

He need not be notified of the privilege of applying for such a license when notice of revocation is mailed. ARSD 61:19:01:02. On August 26,1986, appellant pled guilty to the charge of DWI arising from his second arrest. Pursuant to a plea bargain, Count II of the information charging him with a second offense was dismissed. Upon receiving notice of the second DWI conviction, the Department revoked appellant’s driver’s license for a period of one year to commence on August 26, 1986, the date of his second conviction.

This action was taken pursuant to SDCL 32-12-52.1 which provides: The Department of commerce and regulation shall revoke the license or permit of any operator upon receiving notice of an operator’s conviction for a violation of the provisions of § 32-23-1 to the extent that the operator’s privileges should have been revoked, if the judgment and sentence of the trial court failed to invoke the mandatory provisions of §§ 32-23-2 to 32-23-4, inclusive, or the operator had been convicted consistent with the records of the department of commerce and regulations. (Emphasis added).

On October 8, 1986, appellant submitted an application to the Department for a restricted driver’s license pursuant to SDCL 32-23-11. The Department denied his application on grounds he was ineligible for a restricted license under ARSD 61:19:01:02. Under this regulation he was ineligible for two reasons:

(1) Refusing chemical test of blood and (2) his second DWI within five years. Appellant claims ARSD 61:19:01:02 violates the due process clause of the State and Federal Constitution because of vagueness. We disagree. A civil statute is unconstitutional if its language does not convey sufficient definite warning of proscribed conduct, when measured by common understanding or practice, causing persons to necessarily guess at its meaning and applicability. Greenawalt v. Zoning Bd. of Adj. of Davenport, 345 N.W.2d 537 (Ia.1984).

A state administrative regulation must pass the same constitutional muster as a state statute. 2 Am.Jur.2d Constitutional Law §§ 297, 298 (1962). ARSD 61:19:01:02 is clear in both its meaning and applicability. The rule clearly holds all persons ineligible who, have: (1) been previously convicted of a violation of SDCL 32-23-1 within five years, or (2) had their license revoked for refusal to submit to a chemical test. In this case, appellant was ineligible under both criteria. Appellant further argues the regulation is unreasonable, arbitrary and fundamentally unfair.

He argues the regulation arbitrarily and unfairly discriminates against those who refuse to submit to a chemical test and is unreasonable because it does not provide a hearing for those persons who are denied a restricted license because they are ineligible under ARSD 61:19:01:02. We disagree. Differential treatment by a governmental agency of persons who refuse chemical testing and persons who submit to chemical testing and are convicted of DWI, is reasonable and constitutionally permissible. Under the rational basis test, a class distinction will survive if it rationally furthers a legitimate state interest.

McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961). In Veach v. Iowa Dept. of Transp., 374 N.W.2d 248 (Iowa 1985), the petitioner challenged the constitutionality of an administrative rule adopted by the state’s department of transportation which declared ineligible for work permits, persons whose operating privileges were revoked for a refusal to submit to a chemical test. Persons who submitted to chemical testing were eligible for the temporary work permit even if the chemical test resulted in a finding of intoxication.

The Iowa Supreme Court, on application of the traditional rational basis test of constitutionality, declared the rule valid and in doing so, stated: The right of an arrested motorist to refuse chemical testing is not mandated by the Constitution, but is ‘simply a matter of grace bestowed by the ... legislature.’ ... The State’s interest in public safety is substantially served by treating people who refuse chemical testing differently from people who submit to testing. The State has a strong interest in obtaining the best available evidence of the amount of alcohol in a driver’s bloodstream at the time of arrest.

Accurate test results, if positive, provide valuable evidence in criminal prosecution, and the legislature has given high priority to ‘the enforcement of laws prohibiting operation of a motor vehicle while under the influence ... or while having a certain amount of alcohol in the blood.’ ... The DOT rule here challenged encourages drivers to submit to chemical testing and thereby facilitates citizen cooperation in the enforcement of highway safety. The denial of a work permit upon a driver’s refusal to submit to chemical testing is simply one method used to achieve that legitimate goal. Id. at 250.

We agree with the rationale of the Iowa Court. Appellant argues the regulation is constitutionally unreasonable because it does not provide the appellant a hearing on his application for a restricted license. We disagree. This is not the case where the government is depriving someone of a vested liberty or property right without procedural due process. In this case appellant’s regular license had already been revoked, and he was requesting issuance of a restricted license, i.e., a new license.

Where the question is whether a license should issue initially, due process ordinarily does not require an opportunity for a hearing. Saginaw Valley Trotting Ass’n., Inc. v. Mich. R. Com’r, 269 N.W.2d 676 (Mich.Ct.App.1978). Since this was not a revocation of driving privileges but a denial of appellant’s request for driving privileges, therefore, no governmental “taking” was involved and no hearing was required. I respect Justice Henderson’s right to dissent, but the issue on appeal is whether A.R.S.D. 61:19:01:02 violates due process, not withdrawal of a plea of guilty.

In my opinion we should stick to the issues on appeal. See my dissenting opinion in State v. Jones, 406 N.W.2d 366 (S.D.1987). MORGAN, SABERS and MILLER, JJ., concur. HENDERSON, J., dissents.