Opinion
No. 76-695
Decided July 21, 1977. Rehearing denied August 25, 1977. Certiorari denied November 29, 1977.
Driver's license was revoked on the basis on his being habitual offender through his having driven while his application for a license was under denial. District court reversed that revocation, and department of revenue appealed.
Reversed
1. AUTOMOBILES — Driving Under Denial — Within Ambit — Habitual Offender Law — Basis — Revocation of License. The offense of driving under denial in violation of § 42-2-130, C.R.S. 1973, is within the ambit of the habitual offender law such that one convicted of the offense of driving under denial may have his right to drive revoked pursuant to the provisions of the habitual offender statute.
Appeal from the District Court of Prowers County, Honorable John C. Statler, Judge.
Johnson, McLachlan DiCola, Anthony J. DiCola, for plaintiff-appellee.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Arthur G. Staliwe, Special Assistant Attorney General, for defendant-appellant.
Defendant, Motor Vehicle Division of the Colorado Department of Revenue, appeals from a judgment of the district court reversing defendant's revocation of plaintiff's right to drive a motor vehicle for five years, pursuant to § 42-2-202(2)(a)(III), C.R.S. 1973 of the habitual offender law. We reverse.
Following expiration of plaintiff's driver's license, he had his driving privileges denied on April 9, 1974. Thereafter, between July 10, 1974, and February 8, 1975, plaintiff was cited and convicted of a number of moving violations, including the offense of driving under denial in violation of § 42-2-130, C.R.S. 1973. On December 3, 1975, plaintiff's right to drive was revoked for five years pursuant to the aforementioned habitual offender law. On review, the district court reversed plaintiff's revocation, finding that the offense of driving under denial was not within the ambit of § 42-2-202(2)(a)(III), C.R.S. 1973.
[1] The sole question presented on this appeal is whether the offense of driving under denial is within the ambit of § 42-2-202(2)(a)(III), C.R.S. 1973. Holding that it is, we reverse the district court judgment.
Section 42-2-202, C.R.S. 1973, in pertinent part, provides:
"(2)(a) An habitual offender is one having, within such seven-year period or portion thereof, three or more convictions of any of the following separate and distinct offenses arising out of separate acts:
. . . .
"(III) Operating a motor vehicle while his license or privilege to drive a motor vehicle has been suspended or revoked, in violation of section 42-2-130."
Section 42-2-130, C.R.S. 1973, in pertinent part, provides:
" Driving while license suspended or revoked — penalty. (1)(a) Any person who drives a motor vehicle upon any highway of this state at a time when his . . . driver's license or driving privilege . . . is denied, suspended, or revoked, is guilty of a misdemeanor . . . ." (emphasis added)
The district court was of the opinion that since § 42-2-202(2)(a)(III), C.R.S. 1973, speaks only of suspension and revocation, that by implication, the legislature intended to exclude from the habitual offender law the offense of driving while under denial. However, § 42-2-202(2)(a)(III), C.R.S. 1973, refers specifically to § 42-2-130, C.R.S. 1973, and, in our view, by referring to that statute, the legislature intended to include all violations contained therein, including driving while under denial. The "suspended or revoked" language contained in § 42-2-202(2)(a)(III), C.R.S. 1973, refers to the title of § 42-2-130, C.R.S. 1973, but that title forms no part of the legislative text. Section 2-5-120, C.R.S. 1973. Accordingly, we hold that § 42-2-202(2)(a)(III), C.R.S. 1973, was intended to incorporate all offenses contained in § 42-2-130, C.R.S. 1973.
Our conclusion is buttressed by the legislative declaration concerning habitual offenders of the motor vehicle laws, § 42-2-201, C.R.S. 1973, which provides in part:
"(1) It is declared to be the policy of this state:
. . . .
"(b) 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
"(c) To discourage repetition of criminal acts by individuals against the peace and dignity of this state and its 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."
In light of this declared legislative intent, we find it unreasonable to assume that the legislature intended that those who drive without a license would be exempt from the sanctions imposed under the habitual offender law, while those who do acquire a license which is suspended or revoked must bear the burden of the law for committing the same offenses. See § 2-4-201, C.R.S. 1973; § 2-4-203, C.R.S. 1973.
The judgment of the district court is reversed and the Department of Motor Vehicle's revocation of plaintiff's driving privileges is reinstated.
JUDGE COYTE and JUDGE KELLY concur.