Appeal from the superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Trial Judge)
Before Rogers, Chief Judge, and Reilly and Belson,* Senior Judges.
The opinion of the court was delivered by: Reilly
In an appeal from a conviction for operating a motor vehicle after his driver's license had been suspended, D.C. Code § 40-302 (e) (1990), we are urged to reverse appellant's conviction on the ground that the regulation on which the suspension was based violated the Fifth Amendment right of the licensee to due process of law, or because his subsequent prosecution for driving was improper as the District was aware from court records that the reason advanced for suspension had turned out to be groundless. We think it unnecessary to reach the constitutional question, for the regulation upon which the suspension was predicated was beyond the statutory power of an executive agency of the District to issue. Accordingly, we reverse.
The facts in this case may be summarized as follows. On June 3, 1986, appellant, a sixty-eight year old man, was arrested and charged with possession of a controlled substance (cocaine) with intent to distribute. *fn1 On that same day, a police sergeant (presumably the booking officer) handed him a document entitled "Official Notice of Proposed Suspension," a form published by the Bureau of Motor Vehicle Services, Permit Control Division ("Bureau"). On the form was a printed list of ten different reasons providing for the suspension of driving permits. A checkmark on this list shows that the reason given appellant was "Engaging in the commission of a felony in which a motor vehicle was involved." The portion of the notice captioned "Service" bore what appears to be the signatures of appellant and Sgt. Hickey. *fn2
The recipient of the notice was also informed that he was entitled to apply for a hearing, and that application for hearing was to be made in the office of the Assistant Director of the Bureau.
If you have not applied for a hearing as outlined above within five days [ten days if you are not a resident of the District of Columbia] from the date of this notice, it shall be unlawful for you to operate a motor vehicle in the District of Columbia until such time as your District of Columbia motor vehicle operator's permit and/or privilege to operate a motor vehicle in the District of Columbia has been officially restored. As required by Section 305 of Title 18, District of Columbia Municipal Regulations, District of Columbia motor vehicle operator's permits must be surrendered to the undersigned Room 1157, Municipal Center, 301 C St., N.W., Washington, D.C. 20001 within five days from the date of this notice [ten days if you are not a resident of the District of Columbia].
Appellant did not apply for a hearing within the specified period, and the Bureau suspended his license on June 11th -- eight days after the service of notice, but appellant was not notified of this action. Some six weeks later, on July 26, appellant pleaded guilty to possession of cocaine -- a misdemeanor, not a felony. A trial court accepted this plea and appellant was subsequently sentenced and placed on probation. As he was never tried on the felony charge -- possession with intent to distribute -- obviously the government must have dismissed it. *fn3
More than a year later, on December 29, 1987, two police officers responding to a neighborhood complaint of noisy behavior noticed that the man at the wheel of a car parked nearby was holding a beer can and talking to his three passengers. As the officers approached, he started the car, but had driven only a few feet when he was ordered to stop. He complied. The driver then produced a permit which identified him as appellant Reynolds. Learning from a radio inquiry to headquarters that such permit had been suspended, the officer arrested Reynolds and charged him with the offense for which he was later convicted, viz., operating a vehicle after his permit had been suspended. *fn4
Appellant's challenge to his conviction is two-fold: (1) the notice of suspension was invalid as it was issued on the ground of commission of a felony before he was tried or convicted of such a crime, and (2) the District government had no right to prosecute him for driving after his license was suspended when it was aware that the alleged felony upon which such ...