SC07-32 – James Lescher v. Florida Department Of Highway Safety And Motor Vehicles

State: Florida

Docket No: SC07-32

Case Date: 01/10/2008

Preview:Supreme Court of Florida
____________ No. SC07-32 ____________ JAMES LESCHER, Petitioner, vs. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. [July 3, 2008] CANTERO, J. In this case we consider whether a statutory amendment constitutes an ex post facto law. Florida law provides that after four convictions for driving under the influence (DUI), the defendant's driver's license shall be permanently revoked. After five years such drivers previously could apply for hardship licenses. The Legislature, however, recently amended the statute to remove that driver's license eligibility. The petitioner, who could have applied for a hardship license before the amendment, argues that the amendment constitutes an ex post facto law. Because the prohibition against ex post facto laws applies only to criminal punishments,

however, and the provisions at issue do not constitute punishment, we conclude that the amendment is not an ex post facto law. Below, we first explain the relevant factual, statutory, and procedural history of this case. Then we apply the test delineated in Hudson v. United States, 522 U.S. 93, 99 (1997), to the question of whether driver's license revocation and the unavailability of a hardship license constitutes criminal punishment. I. FACTS AND RELEVANT STATUTORY HISTORY Lescher was convicted of DUI four times: in 1979, 1983, 1991, and 2000. Section 322.28(2)(e), Florida Statutes (2000), required that "[t]he court shall permanently revoke the driver's license or driving privilege of a person who has been convicted four times" for this offense. After his 2000 conviction, therefore, Lescher's license was permanently revoked. Section 322.271(4), Florida Statutes (1997), formerly provided that drivers whose licenses had been permanently revoked under section 322.28(2)(e) could, after five years, petition for reinstatement of the "driving privilege." 1 A petitioner

1. The statute provided in pertinent part as follows: (4) Notwithstanding the provisions of s. 322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted four times of violating s. 316.193 or former s. 316.1931 or because he or she has been convicted of DUI manslaughter in violation of s. 316.193 may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years -2-

had to establish that he qualified. The Department of Highway Safety and Motor Vehicles (Department or DHSMV) then had the "discretion" to issue a "hardship license" with specific restrictions. See

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