Opinion · Vtlaw Vermont

STATE v. MOHR, 146 Vt. 193 (1985)

State of Vt. v. Raymond M. Mohr, 499 A.2d 769 (Vt. 1985)

Type: Opinion
Court: Vtlaw Vermont
Jurisdiction: Vtlaw
Date: 1985-08-02
Topic: general

STATE v. MOHR, 146 Vt. 193 (1985) 499 A.2d 769 State of Vermont v. Raymond M. Mohr No. 84-406Supreme Court of Vermont. Opinion Filed August 2, 1985 1.

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STATE v. MOHR,146 Vt. 193(1985)

499 A.2d 769

State of Vermont v. Raymond M. Mohr

No. 84-406

Supreme Court of Vermont.

Opinion Filed August 2, 1985

1. Motor Vehicles — Driving With License Suspended — Jurisdictionto Issue Suspension

Defendant charged with driving with license suspended can attack legality of suspension in criminal proceeding, if challenge to suspension goes to jurisdiction of Department of Motor Vehicles to issue suspension; challenge must be to underlying authority of Department to order suspension.23 V.S.A. § 674.2. Motor Vehicles — Driving With License Suspended — Jurisdictionto Issue Suspension

In trial for driving while license suspended in violation of23 V.S.A. § 674, where defendant attempted to prove that Department of Motor Vehicles was without authority to suspend his license, pursuant to23 V.S.A. § 803, because that statute authorizes suspension only on date that insurance expires, trial court erred by excluding all evidence that defendant's insurance had never expired, and thus that suspension was beyond Department's authority.

Appealby defendant from conviction of driving with license suspended. District Court, Unit No. 1, Bennington Circuit,Grussing,J., presiding.Reversed and remanded for new trial.

Raymond G. Bolton,Bennington County State's Attorney, andRalph H. Sheppard,Deputy State's Attorney, Bennington, for Plaintiff-Appellee.Stephen L. KleinandMary Billings Munger,Rutland, for Defendant-Appellant.

Present:Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.

Peck, J.

The defendant appeals his conviction of driving with license suspended in violation of23 V.S.A. § 674. Defendant claims the trial court erred when it refused to admit evidence that the Commissioner of Motor Vehicles lacked authority to suspend defendant's license. We agree with defendant and reverse and remand for a new trial.

The alleged offense occurred on February 11, 1984. By a letter dated January 9, 1984, the defendant had been notified by the Department of Motor Vehicles that the "Certificate of Insurance, evidencing proof that you are covered by Financial ResponsibilityPage 194Insurance has been cancelled by your Insurance Company" and that his license to operate "is hereby suspended effective January 21, 1984." The defendant also received from his insurance carrier a "Notice of Cancellation or Nonrenewal" indicating that the cancellation would be effective on January 21, 1984, for nonpayment of premium. This notice also indicated the amount of premium due. The defendant stated that his check for the premium due had been "sent out" on January 15. He offered to prove that he had received a letter back from the insurance company, dated February 9, stating, "kindly disregard your notice of cancellation," but the letter was excluded as hearsay.

The defendant's right to operate was reinstated on February 29, 1984, upon receipt by the Department of an SR-22 Form (a Uniform Financial Responsibility form) submitted by the defendant's insurance company. The State's witness on this issue testified that his examination of the Department's records did not reveal any other SR-22 filing between January 21, 1984, and the date of the alleged offense.

The defendant, albeit somewhat inartfully, attempted to establish that the insurance carrier had sent an SR-22 to the Department prior to the date of the alleged offense which would have established that the insurance was never terminated. The court sustained the State's objections to defendant's attempts to make this showing on the ground that "it is not open to the defendant to question the validity of the suspension . . . ." at the trial for the alleged offense.

InStatev.Putnam,137 Vt. 410, 414,407 A.2d 161, 163 (1979), this Court held that a defendant charged with driving with license suspended can attack the legality of the suspension in the criminal proceeding, if the challenge to the suspension goes to the jurisdiction of the Department of Motor Vehicles to issue the suspension. The challenge must be to "the underlying authority of the Department to order the suspension."Id.

The defendant here attempted to prove that the Department was without authority to suspend his license, pursuant to23 V.S.A. § 803, because that statute authorizes suspension only "on the date that the insurance expires." The court below excluded all evidence that the defendant's insurance had never expired, and thus that the suspension was beyond the Department's authority.

Indeed it was unclear from the record that the insurance ever expired. While the notice to the defendant stated that the certificatePage 195had been cancelled, the State conceded in its brief that at the time the Department of Motor Vehicles notice was sent the cancellation was only "impending."Reversed and remanded.