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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX THE PEOPLE OF YHe VIRGIN ISLANDS „. . ^ CASE no. sx-03-cr-ooooi13 Plaintin) ! ACTION FOR: 19V.I.C.604 Vs. ) ) LEEJ.ROHN.ESQ. Defendant I NOTICE OF ENTRY OF MEMORANDUM OF OPINION AND ORDER Tn. RYANGREENE. ESQ. ,U- ORDER BOOK/LAW CLERKS MELISSA ORTIZ. ESQ. LIBRARIAN/ IT JUDGES AND MAGISTRATES OFTHE SUPERIOR COURT GORDON RHEA, ESQ. DUSTIN CALHOUN. ESQ. Please take notice that on April 20. 2011 a(n) MEMORANDUM Of OPINION AND ORDER dated April 20, 2011 was entered by the Clerk in the above-entitled matter. Dated- ADril 20 2011 Venetia H. Velazauez, Esq. Dated. April zu, zin c Qp ^ s(JpER|0R C0URT ROXANNE SERRANO COURT CLERK SUPERVISOR FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, Plaintiff, v. LEE J. ROHN, Defendant. Counsel: DUSTIN J. CALHOUN, ESQ. U.S. Virgin Islands Department of Justice 6040 Estate Castle Coakley, Christiansted, St. Croix United States Virgin Islands 00820 MELISSA P. ORTIZ, ESQ. U.S. Virgin Islands Department of Justice 6040 Estate Castle Coakley, Christiansted, St. Croix United States Virgin Islands 00820 Attorneysfor the People CASE NO. SX-03-CR-113 GORDON C. RHEA, ESQ. Richardson, Patrick, Westbrook & Brickman, LLC 1037 Chuck Dawly Blvd. Bldg. A Mt. Pleasant, SC 29464 RYAN W. GREEN, ESQ. Law Offices ofRohn and Carpenter, LLC 1101 King St. Christiansted, St. Croix United States Virgin Islands 00820 Attorneysfor Defendant DONOHUE, SR., DARRYL DEAN, Presiding Judge: MEMORANDUM OPINION (DatedApril20,2011) THIS MATTER presents an issue of first-impression in the U.S. Virgin Islands: whether a criminal defendant pleading guilty to, or convicted of, a first-offense of simple possession ofa controlled substance, o f Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 2 of20 pursuant to Section 378 of Title 20 of the Virgin Islands Code. For the reasons stated below, the Court finds the mandatory revocation ofdriver's licenses unambiguous and constitutional. I. FACTS AND PROCEDURAL HISTORY This matter came before the Court for a change of plea hearing.1 Defendant Lee J. Rohn ischarged with one count ofpossession ofa controlled substance with intent todistribute, in violation of Section 604(a) ofTitle 19 of the Virgin Islands Code. (Information, filed April 4, 2003.) Rohn and the People ofthe Virgin Islands informed the Court that they had entered into an agreement whereby Rohn would plead guilty to the lesser-included offense ofsimple possession ofacontrolled substance, in violation of Section 607(a) of Title 19 of the Virgin Islands Code. (Plea Agmt., filed Nov. 19,2010.) At the hearing, counsel for the People proffered that the factual basis for the plea, which Rohn agreed with for purposes ofthe hearing, was apre-flight screening in March 2003, during which a TSA agent at the Henry E. Rohlson International Airport on St. Croix, U.S. Virgin Islands, discovered in Rohn's luggage asubstance suspected of being acontrolled substance. (Plea Agmt H2.) See generally Gov't ofthe V.I. v. Rohn, 214 Fed. Appx. 187 (3d Cir. 2007). Afield test yielded apositive result for marijuana. (Plea Agmt. \ 2.) In exchange for pleading guilty to the lesser-included offense, the People recommended that the Court place Rohn on probation as afirst-time offender. Before accepting the plea, the Court examined Rohn to determine her competency and to establish that her plea was voluntary. The Court also advised Rohn of the rights she was waiving and the penalties attendant to an offense of simple possession ofacontrolled substance. Rohn faced amaximum of one year in prison, afive- 1When filed, this matter was captioned Government ofthe Virgin Islands v. Lee J. Rohn. In 2005, the Legislature of me Virgin Islands amended Section 114 of Title 3 of the Virgin Islands Codeto direct that cnnnnal Isecutions proceed"in the name ofthe People ofthe Virgin Islands ... - Act. No. 6730,2005 V.I. Sess. Laws 109. AccordV.l. Code Ann. tit. 3, § 114(a)(3) (Supp. 2010). People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 3 of20 thousand dollarfine, or both. If Rohnwereeligible as a first-time offender, shecouldbe placed on probation for up to one year. Finally, the Court informed Rohn that her license to drive would be revoked for two years, pursuant to Section 378 ofTitle 20 ofthe Virgin Islands Code. Upon learning of the license revocation, Rohn objected, claiming she was unaware of that penalty and had not been alerted to it bythe People during their discussions. Counsel for the People also indicated that they believed Section 378 did not apply to first-time offenses of Section 607(a). The Court allowed the parties toargue the question discussed below. When it appeared that the parties were unprepared to discuss the intersection of Section 607 with Section 378, the Court then reserved ruling on the question and asked the parties to submit further arguments in writing. The Court continued with the change ofplea and advised Rohn that she could withdraw her guilty plea ifshe disagreed with the decision below. Both parties subsequently filed briefs. (Def. Br., filed Dec. 21,2010; People's Br., filed Dec. 21, 2010.) Rohn challenges mandatory driver's license revocations for first-time offenders pleading guilty to simple possession ofacontrolled substance. She argues (1) that the statutes irreconcilably conflict resulting in an ambiguity the Court must resolve in her favor; (2) that subsequent amendments to the statutes at issue here reflect legislative intent to exclude first-time offenders from mandatory license revocations; (3) that the two-year revocation is a harsh penalty for a first-time offender; and (4) that the public lacks fair warning of all consequences ofpleading guilty to simple possession ofacontrolled substance. (Def. Br. 3-9.) Below the Court will address each argument. II. STATUTORY AMBIGUITY Rohn argues that Section 607 and Section 378 are irreconcilable and result in ambiguity when read in tandem. "The statutes clearly conflict: one provision mandates a particular Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page4 of20 sentence while the other provision gives the Court discretion to place the defendant on probation and defer sentence." (Def. Br. 4.) The People concur regarding a conflict between Section 607 and Section 378. (People'sBr. 1.) Particularly, the People notethat the maximum time that a defendant can be placed upon probation under Section 607(b) is one year. However, the license suspension under Section 378 is for two years. These sections are in direct conflict as Section 607(b) requires the dismissal of the proceedings without an adjudication of guilt if the terms of probation are not violated. At that time the Court would no longer have jurisdiction over the Defendant to maintain alicense suspension orarevocation of driving privileges. Id. at 2. The People then "defer[red] to the Court and its interpretation of 607(b) alone to impose sentence." Id. Rohn, however, argues that "the irreconcilable conflict. . . creates an ambiguity concerning which statute applies, and in light ofthe rule oflenity, the Court must proceed under Section 607 with its discretionary probationary provisions." (Def. Br. 5.) "Ambiguity exists when astatute is capable ofbeing understood by reasonably well- informed persons in two or more different senses." 2A Norman J. Singer &J.D. Shambie Singer, Sutherland Statutory Construction §45:2 (2007). Accord Ladner v. United States, 358 U.S. 169, 177-78 (1958). As the statutes in question here are penal, any ambiguities must be resolved in favor ofthe criminal defendant. Gilbert v. People ofthe V.l, No. 2008-034, 2009 WL 3297267, at *3 (V.I. Sup. Ct. Oct. 6,2009) (citing Gov't ofthe V.I. v. Knight, 989 F.2d 619 (3d Cir. 1993)). This is known as the rule of lenity and "applies not only to substantive criminal prohibitions, but also to the penalties they impose." Knight, 989 F.2d at 633 (citations omitted). "[T]he 'touchstone' ofthe rule oflenity 'is statutory ambiguity.'" Moskal v. United States, 498 U.S. 103,107 (1990) (quoting Bifulco v. United States, 447 U.S. 381,387 (1980)). Before the Court may invoke the rule oflenity, it first "must conclude that there is agrievous ambiguity or uncertainty in the statute." Muscarello v. United States, 524 U.S. 125, 138-39 Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 5 of20 (1998) (citation and internal quotationsomitted). "When... a statuteis ambiguous in terms or because of doubtful language it would seem to have two meanings, courts are called upon to construe it by finding which meaning reflects the intention of the Legislature thatenacted it." Braffith v. People of the V.I., 26 F.2d 646, 648 (3d Cir. 1928). However, more than a possibility of a narrower construction is necessary to create ambiguity. Moskal, 447 U.S. at 108. Lenity is limited to "situations in which a reasonable doubt persists about a statute's intended scope even after resort to 'the language and structure, legislative history, and motivating policies' ofthe statute." Id (emphasis in original) (quoting Bifulco v. United States, 447 U.S. 381,387 (1980)). All "statutory interpretation begins with the language ofthe statute itself." Knight, 989 F.2d at 633 (citing Pa. Dep't ofPub. Welfare v. Davenport, 495 U.S. 552, 557-58 (1990)). Literal interpretation ofstatutes is strongly favored. Murrell v. People ofthe V.I., No. 2009- 0064, 2010 WL 4961795, *5 (V.I. Sup. Ct. Sept. 13, 2010). Thus, "the plain meaning ofthe words ordinarily is regarded as conclusive." Knight, 989 F.2d at 633 (citation omitted). "The plain meaning rule, however, is not absolute. Acourt may consider persuasive legislative history that [the Legislature] did not intend the words they selected to be accorded their common meaning. [But a] construction inconsistent with astatute's plain meaning ... is justifiable only when clear indications of acontrary legislative intent exist." Id. (citations omitted). As with any legislative body, the Legislature ofthe Virgin Islands "is presumed to enact legislation with knowledge of the law." Murrell, 2010 WL 4961795 at *5. Thus, legislative intent prevails over literal interpretation only when aliteral reading yields aresult contrary to the statute's objective. Gilbert, 2009 WL 3297267 at *3 (citation omitted). If the Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 6 of20 Legislature manifested its intentions clearly, the Superior Court may not manufacture ambiguity in order to defeatthatintent. Bifulco v. United States, 447U.S. 381,387 (1980). The Legislature passed the "Virgin Islands Controlled Substances Law" in 1971. V.I. Code Ann. tit. 19, § 591 (1995). The legislation was intended "to provide a comprehensive drug abuse and control law and to strengthen existing law enforcement authority inthe field of drug abuse." Act No. 2961, 1971 V.I. Sess. Laws 28 (capitalization omitted). The Legislature determined that the improper use of and illegal importation, manufacture, distribution, and possession of certain naturally-occurring as well as man-made chemical substances have a substantial and detrimental effect on the health and welfare ofthe people ofthe Virgin Islands. V.I. Code Ann. tit. 19, §592 (1995). Accordingly, the Legislature identified the substances to be controlled and prohibited or restricted their usage and possession. Id. §595 (1995 &Supp. 2010). All controlled substances are listed on five schedules, classified in part according to accepted medicinal use, if any, as well as potential for dependency ifabused. Id §§ 591, 595(c). The Virgin Islands Commissioner of Health is empowered to add to or remove from any schedule. See generally id §594. Before any substance may be listed or delisted as a controlled substance, however, the Commissioner must "issue an order which shall be published once aweek for three consecutive weeks in all Virgin Islands newspapers ofgeneral circulation." Id. § 594(c). Substances listed on Schedule I have a high potential for abuse and no currently- accepted medical use throughout the United States. Id. §595(b)(l)(A)-(B). Substances like heroin, peyote, and lysergic acid diethylamide are among those included on Schedule Idue to their abuse potential and lack ofmedical use. Id. §595(c) &Sch. I(c)(10). Substances listed on Schedule Vhave alow potential for abuse and are used routinely in medical treatment. Id. § Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 7 of20 595(b)(5)(A)-(B). For example, a diluted solutionoftwo hundredmilligramsofcodeineor less is included on Schedule V because ofthe low potential for abuseandroutinemedicinaluse. Id. § 595(c)& Sch.V(l). Here Rohn was charged with possession of a controlled substance, marijuana, with intent to distribute. Marijuana has been classified as a controlled substance and listed on Schedule I since enactment of the Controlled Substances Law in 1971. See 1971 V.I. Sess. Laws 37. Marijuana isnotanarcotic drug, however. See id. § 593(19) (defining narcotic drugs as opium, coca leaves, opiates, and related derivatives). Therefore, manufacturing, distributing, or dispensing marijuana, or possessing marijuana with intent to manufacture, distribute, or dispense, carries amaximum penalty offive years imprisonment, afifteen-thousand dollar fine, or both. V.I. Code Ann. tit. 19, §604(b)(1)(B) (1995 & Supp. 2010). Rohn agreed to plead guilty to the lesser-included offense ofsimple possession ofacontrolled substance, which carries amaximum penalty ofone-year imprisonment, afive-thousand dollar fine, or both. Id. §§ 604(b)(4) &607(a) (1995 &Supp 2010). As this is Rohn's first offense for simple possession, the People also recommended that the Court place Rohn on probation pursuant to Section 607(b) ofTitle 19 ofthe Virgin Islands Code. (Plea Agmt] 3.) Section 607(b) implements a separate probation procedure2 for first-time offenders convicted of, or pleading guilty to, simple possession ofacontrolled substance. Section 607(b) authorizes courts to, "without entering a judgment of guilty and with the consent of such 2Placement on probation pursuant to Section 607(b) is similar to placement on probation pursuant to Section 3711(c) ofTitle 5ofthe Virgin Islands Code. See V.I. Code Ann. tit. 5. §3711(c) (1997 &Supp. 2010). Under both orovisions, successful fulfillment of the terms of probation entitles the criminal defendant to discharge -without court adjudication ofguilt" Id; V.I. Code Ann. tit. 19, §607(bXD (1995 &Supp. 2010). Similarly, violation ofthe terms of probation authorizes the court to enter an adjudication of guilt and impose sentence. Probation differs in that Section 607(b) grants courts discretion to discharge defendants from probation before expiration ofthe period proscribed. In addition, Section 607(b) limits the length ofprobation to one-year whereas Section3711(c) is withouta statedlimit. People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 8 of20 person, defer further proceedings and place [the defendant] on probation upon suchreasonable conditions as it may require and for such period, not to exceed one year, as the court may proscribe." Id. § 607(b)(1) (1995 & Supp. 2010). Discharge and dismissal from probation "may occur only once with respect to any person." Id. Successful completion of probation entitles the defendant to dismissal of criminal proceedings without court adjudication of guilt. Id. Discharge from probation and dismissal ofthecriminal proceedings may notbe"deemed a conviction for purposes ofdisqualifications ordisabilities imposed bylaw upon conviction ofa crime ... or for any other purpose." Id. In addition to the penalties imposed by Section 607(a) or probation as provided by Section 607(b), "[a]ny person who pleads guilty to, or is convicted of, possession of a controlled substance ... shall... have [her] driver's license or driving privileges revoked for aperiod of two years . . . ." V.I. Code Ann. tit. 20, §378 (1995 &Supp. 2010) (emphasis added). Both the People and Rohn found ambiguity in the juxtaposition of Section 607 with Section 378, despite the clarity ofthe text ofboth statutes. Rohn and the People interpret Section 378 as a further criminal proceeding that Section 607(b) would defer for defendants placed on probation. (See Def. Br. 2("The issue is whether the court could exercise its discretion to defer further proceedings pursuant to Section 607 and the parties' Plea Agreement, or whether itmust instead revoke Rohn's driving privileges for aperiod oftwo years pursuant to Section 378.").) Upon consideration ofthe overall scope and application ofSection 378, including the statute's history, placement, title, and text, the Court finds that driver's license revocations pursuant to Section 378 is acivil, and not criminal, penalty. The Legislature of the U.S. Virgin Islands enacted Section 378 "to provide for revocation ofdriver's license for narcotics conviction " Act No. 5649, 1990 V.I. Sess. People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page9 of20 Laws 397 (capitalizations omitted). See also id at 439-40. As explained further below, Section 378 was enacted as part of a nationwide attempt at curbing illegal drug use. Section 378 was adopted in tandem with related legislation aimed "to provide for liability for drug- induced deaths, to provide penalties for employing juveniles in the distribution of drugs . . . [and] toprovide for enhanced penalties for operating controlled substance production facilities. . . ." Id. (capitalizations omitted). The Legislature placed Section 378 within Title 20: Highways and Motor Vehicles, and then situated it within Chapter 35: Operators' Licenses. What's more, the Legislature titled Section 378 "Drug offenses; license revocation." That same chapter also lists qualifications and requirements for obtaining driver's licenses. See, e.g., V.I. Code Ann. tit. 20, §§ 373-375 (1995 & Supp. 2010). See also, e.g., Gilbert, 2009 WL 3297267 at*4 (giving consideration to legislative labeling of statutes). But cf V.I. Code Ann. tit. 1, §45(a) (1995). Additionally, theLegislature enacted Section 378 nineteen years after the Controlled Substances Law, including Section 607(b), had already been in force. Thus, this Court mustassume that the Legislature enacted Section 378 with knowledge ofSection 607(b). A review ofthe text ofSection 607(b) also supportsthat conclusion. Section 378 applies to "any person who pleads guilty to ... possession ofa controlled substance...." V.I. Code Ana tit. 20, § 378(a) (1995 & Supp. 2010) (emphasis added). The language is clear and unambiguous. All simple possession offenses, including first-time offenses, require "/« addition to any and all other penalties provided by law" revocation of driver's licenses for a period of two years. Id. (emphasis added). Moreover, the Legislature specifically included the phrases "pleads guilty to" and "is convicted of within the statute. Had the Legislature intended that Section 378 be deferred as a "further proceeding," as Rohn argues, the Legislature could have conditioned revocation of driver's licenses on the court People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 10of 20 entering a judgment of guilt pursuant to Section 607. Phrased that way, Section 378 would never apply to defendants placed on probation under Section 607(b) because successful completion ofprobation avoids entry ofjudgment. Instead, the Legislature drafted Section 378 to apply upon plea ofguilt or conviction ofguilt. What's more, the Legislature did carve out an exception in enacting Section 378. Instead ofafive-year driver's license revocation as with all other controlled substance offenses, simple possession carries only a two-year license revocation. Id. § 378(b). Section 378's civil scope also stands out when juxtaposed with license revocations for offenses involving driving under the influence of drugs or alcohol. See generally V.I. Code Ann. tit. 20, § 493 (1995 & Supp. 2010). In criminalizing driving under the influence, the Legislature required within the penal statute itselfthat courts revoke driver's licenses as part of the overall criminal penalty. Id. § 493(c) (six-month license revocation for first-offense). Section 493, for example, requires that "the court shall suspend or revoke, for a period ofsix months" the defendant's driver's license. Id § 493(c)(1) (emphasis added). Section 378, however, contains no such language. In fact, Section 378 operates independently ofthe courts. The statute requires only that "Judges . . . take possession of any driver's license . . . and forthwithforward same to the Director of Motor Vehicles."3 Id. §378(c) (emphasis added). Courts do not revoke driver's licenses pursuant to Section 378and therefore lack discretion to waive the revocation. 3 In 2005, the Legislature amended the Virgin Islands Code to substitute "Director of Motor Vehicles" for "Commissioner ofPolice." See generally Act No. 6761,2005 V.I. Sess. Laws 245. The publishers ofthe Virgin Islands Code Annotated reflected that amendment for all sections within Chapter 35 except Section 378. Nevertheless, the Court quoted above Section 378(c) as it should read. See id at247 ("Title 20 Virgin Islands Code, chapter 31, section 301, chapters 33,35,37,41,45, and 39, section 435 (a) are amended by striking "Police Commissioner" . . . in each instance ... and by inserting in their stead: "Director of Motor Vehicles . . . .") (emphasis added). People v. Rohn SX-03-CR-H3 MEMORANDUM OPINION Page 11 of20 When read together, Section 607 and Section 378 do not create an either/or sentencing schema. Instead, each applies independently of the other. Neither statute is ambiguous when read separately or when read together. Section 607 criminalizes an act and defines punishment for violating that act. Section 607 also grants courts discretion, when sentencing first-time offenders, to defer further proceedings so that the defendant can serve a term of probation. Section 378 is not a further criminal proceeding, however. The background, scope, and text indicate that Section 378 is a civil penalty applicable independently from criminal penalties imposed bySection 607. Accordingly, the Court finds no ambiguity in the application ofeither statute. HI. STATUTORY INTERPRETATION Rohn proffers additional interpretations of Section 607 and Section 378 according to which the Court could give effect to both statutes. Having already found both statutes independently enforceable, however, the Court will address briefly here Rohn's additional statutory interpretation arguments. Rohn 3 People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 12of20 Section 607 was amended to include references to "designer drugs." Neither amendment reduced the scope of Section 607 or altered its penalties. Rohn's argument that simply by amending Section 607(b) the Legislature mooted application of Section 378 lacks merit Moreover, the Court is unaware of any canon of statutory interpretation that would permit courts to interpret statutory amendment as an implied prioritization of one statute over another. Next, Rohn argues that Section 607, as a specific statute, should govern over Section 378, amore general statute. (Def. Br. 7.) Specifically, Rohn argues that Section 607(b)(l)*s provision relates to multiple offenses, which includes a term ofimprisonment ofnotmore than two years, and is more consistent with the two year license revocation under section 378, which further supports the proposition that Section 378 should apply to defendants with multiple offenses, but not to first-time offenders such as Rohn. Id. This argument too falls flat, however. Subsequent offenses involving simple possession of a controlled substance carry a maximum penalty of two years in prison, a ten-thousand dollar fine, or both. V.I. Code Ann. tit. 19, § 607(a) (1995 & Supp. 2010). If Rohn's reading were correct, Section 378's two-year license revocation would apply only to subsequent offenses of simple possession of a controlled substance. As Rohn construes the statute, all first-time offenders, whether sentenced under Section 607(a) or placed on probation under Section 607(b), would avoid mandatory license revocations. Ifthe Legislature intended that result, the Legislature would have legislated that result. Accordingly, the Court finds that Rohn harmonization of Section 607(a)'s two-year sentence with Section 378's two-year license revocation lacks merit. IV. CONSTITUTIONAL DUE PROCESS Finally, while Rohn did notexpressly challenge the constitutionality of Section 378, the crux of her arguments does. Rohn presents arguments grounded both on substantive and Peoplev. Rohn SX-03-CR-H3 MEMORANDUM OPINION Page 13of20 procedural due process.4 As "due process clearly guarantees all defendants the right to be sentenced under an accurate understanding of the law," the Court will examine Rohn's constitutional challenges below. United States v. Eakman, 378 F.3d 294, 302 (3d Cir. 2004) (citation omitted). a. Substantive Due Process Rohn claims that "a two-year revocation ofa driver's license isa harsh consequence for a first-time offender who pleads guilty to simple possession of a controlled substance, particularly in light ofthe discretionary probation contained in Section 607." (Def. Br. 5.) Rohn also attacks license revocations, particularly where, as here, no motor vehicle was involved. Id at9. In essence, Rohn isarguing Section 378 lacks arational basis. Obtaining alicense to drive isa privilege. See Bell v. Burson, 402 U.S. 535,539 (1971) ("relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' ora 'privilege.'"). Once granted, however, licenses may not be suspended or revoked without due process. Dixon v. Love, 431 U.S. 105, 110 (1977). "[S]uspension ofadriver's license for statutorily definedcause implicates aprotectiWe property interest." Mackey v. Montrym, 443 U.S. 1, 10 (1979). Here, Section 378 revokes the driver's licenses of all persons convicted of, or pleading guilty to, simple possession ofa controlled substance. As a license revocation statute, Section 378 must satisfy the due process clause. Section 378 will satisfy substantive due process protections only ifitis rationally-related to a legitimate government interest. Thomas v. Gov't ofthe VI, No. 2003-151,2007 WL 2900298, 4The protections ofthe Fourteenth Amendment to the United States Constitution, including the Due Process Clause are applicable in the U.S. Virgin Islands by operation ofSection 3ofthe Revised Organic Act of 1954. 48 USC A §1561 (2011). See also UnitedStates v. Liburd, 607 F.3d 399 (3d Cir. 2010). People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 14of20 *5 (V.I. App. Div. Sept. 4,2007) (quoting Sunken Treasure, Inc. v. Unidentified Vessel, 857F. Supp. 1129,1138 (D.V.1.1994)). Driver's license suspensions for offenses involving controlled substances date back at leastthree decades. See generally AaronJ. Marcus, Are the Roadsa SaferPlace Because Drue Offenders Aren't on Them?: An Analysis of Punishing Drue Offenders with License Suspensions. 13 Kan J.L. & Pub. Pol'y 557, 558-61 (2004) (discussing efforts at federal level to condition state receipt of federal highway funding on enactment of license suspensions as part of strategy on war on drugs). Commonly referred to as "Use and Lose" -laws, license suspensions for offenses involving controlled substances "began to appear during the mid- 1980s. The basic premise of these laws was that teens highly value obtaining adriver's license and that thethreat of losing their license, ordelaying when one could beobtained, would deter many from substance abuse." U.S. Dep't of Transp., Evaluation of Use and Lose Laws 2 (2001), available at http://ntl.bts.gov/lib/26000/26000/26032/DOT-HS-809-285.pdf (last visited April 20, 2011). "In 1994, Congress moved to expand the Use and Lose approach to drug offenses by persons ofall ages." Id at 3. Congress conditioned federal highway funding on states enacting and enforcing laws for "the revocation, or suspension for at least 6 months, of the driver's license ofany individual who isconvicted ... of... any drug offense " 23 U.S.C.A. § 159(a)(3) (2010) (emphasis added). States that failed to enact license suspension laws—or certify their opposition—forfeited federal highway funding. Id. §159(b)(4). To date, at least seventeen States,5 the District ofColumbia,6 and two United States Territories7 mandate suspension of driver's licenses in all offenses involving controlled 5Ala Code § 13A-12-290 (West 2010) (six-month suspension); Ark. Code Ann. §27-16-917 (West 2011) (six- month suspension); Del. Code Ann. tit. 21, §4177K(a) (West 2011) (two-year suspension); Fla. Stat. Ann. § 322.055 (1) (West 2011) (two-year suspension unless shortened through completion of drug rehabilitation Peoplev.Rohn SX-03-CR-113 MEMORANDUM OPINION Page 15of20 substances, regardless whether motor vehicles were involved. Moreover, twelve states have upheld "Use and Lose"laws despite challenges alleging violations of substantive due process, procedural dueprocess, equal protection, double jeopardy, andcruel and unusual punishment. Whereviolations of substantive due process werealleged, courts upheldlicense revocations as being rationally-related to legitimate government purposes. See, e.g., State v. Bell, 572 N.W.2d 910, 912 (Iowa 1997) ("The legislature may have concluded that individuals convicted of drug offenses are more likely to cause dangerous conditions on public roads [T]he legislature may have believed that the statute would cut down on the transportation and trafficking of drugs . . . ."); State v. Thompkins, 664 N.E.2d 926, 929 (Ohio 1996) ("[Legislative] goals include thedesire tokeep thehighways clear ofpeople who have demonstrated a willingness to abandon their physical and mental acuity to drugs, the desire to inhibit the ability to buy, sell, program); Ga. Code Ann. §40-5-75 (West 2010) (six-month suspension upon first offense); Iowa Code Ann. § 901.5(10) (West 2010) (six-month revocation); Mass. Gen. Uws Ann. ch. 90, §22(f) (West 2010) (up to five- year suspension); Miss. Code Ann. §63-1-71 (West. 2010) (six-month suspension); N.J. Stat. Ann. §2C35-16 (West 2011) (six-month to two-year suspension range); N.Y. Veh. &Traf. Law §510(2)(bXv) (McKinney 2010) (six-month suspension); Ohio Rev. Code Ann. §2925.11(E)(2) (West 2011) (six-month to five-year suspension range); Okla. Stat. Ann. tit. 47, §6-205.1(B)(1) (West 2010) (six-month suspension); 75 Pa. Cons. Stat. Ann. § 1532(c) (West 2010) (six-month to two-year suspension range); S.C. Code Ann. § 56-1-745 (2010) (six-month suspension); Tex. Transp. Code Ann. §521.372 (West 2009) (six-month suspension); Va. Code Ann. §18.2-259.1 (West 2011) (six-month suspension); Wis. Stat Ann. §961.50 (West 2011) (six-month to five-year suspension range). 6DC.Code §50-1403.02 (2011) (six-month totwo-year suspension range). 7P.R. Laws Ann. tit. 24, §2516 (2010) (six-month tofive-year suspension range); V.I. Code Ann tit. 20, §378 (1995) (two-year tofive-year revocation range). *Walton v. Commonwealth, 497 S.E.2d 869 (Va. 1998) (substantive due process); State v. Bell, 572 N.W.2d 910 (Iowa 1997) (substantive due process and equal protection); State v. Thompkins, 664 N.E.2d 926 (Ohio 1996) (substantive due process and equal protection); Mitchell v. State, 659 N.E.2d 112 (Ind. 1995) (procedural and substantive due process); People v. Zinn, 843 P.2d 1351 (Colo. 1993) (substantive due process); Quiller v. Bowman, 425 S.E.2d 641 (Ga. 1993) (substantive due process and equal protection); Lite v. State, 617 So.2d 1058 (Fla. 1993) (substantive due process and equal protection); Plowman v. Commonwealth, 635 A.2d 124(Pa. 1993) (substantive due process and cruel and unusual punishment); Rushworth v. Registrar ofMotor Vehicles, 596 N.E.2d 340 (Mass. 1992) (substantive due process, equal protection, and double jeopardy); State v. Smith, 276 A^d 369 (HJ. 1971) (substantive due process and equal protection); State v. Wolfe, No. 94-2663-CR, 1995 WL 228329, at *1 (Wis. Ct. App. 1995) (substantive due process); RT.M. v. State, 677 So.2d 801 (Ala Ct. Crim. App. 1995) (equal protection and double jeopardy) (citation to denial ofcertiorari unavailable). Butsee, e.g., Ind. Code Ann. §35-48-4-15 (West 2011) (six-month to two-year suspension range enforceable now only when operation of operation involved); Mass. Gen. Uws Ann. ch. 94C, §32L (West 2010) (license suspension and other criminal penalties prohibited for possession ofone ounce or less ofmarijuana). Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 16of20 transport or use controlled substances . . . ."); Mitchell v. State, 659 N.E.2d 112, 116 (Ind. 1995) ("the General Assemblymay have concluded that denying the privilege of driving and the privilege of using the public roads to those likely to deal incontrolled substances ... is an effective means for deterring criminal conduct."); Quiller v. Bowman, 425 S.E.2d641,643 (Ga. 1993) ("The legislature could reasonably assume that aperson who possesses illegal drugs will usethe drugs, that a drug user will drive while under the influence of drugs, and that drug use impairs adriver's judgment."); Rushworth v. Registrar ofMotor Vehicles, 596 N.E.2d 340,340 (Mass. 1992) ("The Legislature could have concluded that the unlawful sale and use of drugs constitutes a serious problem ... and that license suspensions ... could serve as adeterrent to illegal drug distribution and use, and as ameans ofrehabilitation."). Rohn highlights that no motor vehicle was involved here. She claims, therefore, that "[mjandatory revocation of a license for a misdemeanor guilty plea to possession of a controlled substance which in no way relates to the operation of a motor vehicle is absurd in that it imposes amore severe sanction than the punishment for aconviction or plea related to an offense of driving while intoxicated." (Def. Br. 9.) Yet Rohn overlooks that her case may actually underscore the Legislature's interest in revoking driver's licenses for offenses involving controlled substances. Rohn was not discovered in possession ofmarijuana while relaxing in the privacy ofher home. Rather, she was at the airport "taking the marijuana to her boyfriend in Puerto Rico, who's [sic] father was dying and needed something to help him get through it." (Plea Agmt. H2.) Rohn did attempt to transport marijuana between two United States Territories: St. Croix and Puerto Rico. Furthermore, even though Rohn was not discovered in possession of marijuana while operating a motor vehicle, she did have to transport the marijuana by motor vehicle to the airport. As in Bell, Mitchell, and Rushworth, Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 17of20 this Court also finds that our Legislature may have believed that individuals in possession of controlled substances may attempt to distribute them. Revoking driver's licenses ofindividuals who choose to possess controlled substances is one method of reducing the movement of controlled substances throughout our Territory. Section 378 is rationally-related to that legitimate government goal. In addition to reducing the movement of controlled substances, revoking driver's licenses may also reduce the number of impaired drivers on our roads. As in Mitchell and Quiller, this Court also finds that our Legislature could have determined that possession of a controlled substance may lead to use of that controlled substance and that users may later attempt to operate motor vehicles. Moreover, the Legislature may also have taken into account the driving and weather conditions here in the Territory. Public transportation is limited. Many residents drive. Traffic can be heavy. Roads and highways can be steep or winding. From timeto time, brush orshrubbery mayreduce visibilityaround sharp corners orbends. Six months out of every year hurricanes and tropical storms threaten our islands. Rainfall often comes in intense bursts. Floodwaters can peak veryrapidly and the soil cannot always absorb the rainwater fast enough. Flash-flooding can occur within minutes during an intense storm. Motorist must be ever vigilant to all of these conditions when driving on our roads. The Legislature could have enacted Section 378 in order to prevent persons involved in controlled substances from driving, and thus threatening thesafety ofour drivers. Based on the discussion above, the Court finds that Section 378 is rationally-related to the legitimate government interests in restricting the transportation ofcontrolled substances and reducing the number ofimpaired drivers on our roads. Section 378 comports with substantive due process and is,therefore, constitutional. People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 18 of20 b. Procedural Due Process Lastly, Rohn challenges the procedure for license revocations, claiming that "the public is not given fair warning about the legal consequences of pleading guilty to possession of a controlled substance. Both [Section 607 and Section 378] address the same plea but contain very different results." (Def. Br. 4.) Rohn's argument challenges the procedural due process accorded by Section 378. Three factors are weighed in evaluating the procedural due process afforded by a statute: (1) the private interest; (2) the risk of erroneous deprivation from the procedures in place and any probable value of alternative procedural safeguards; and (3) the government's interest. Mackey, 443 U.S. at 10 (quoting Matthews v. Eldridge, 424 U.S. 319, 335(1976)). "The first stepin the balancing process ... is identification ofthe nature andweight of the private interest affected by the official action challenged." Id. at 11. "Once licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood." Bell, 402 U.S. at 539. "In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." Id Here Rohn expressed her interest in retaining her license, noting that "[operating a motor vehicle is an integral part of her career and livelihood. . . . Rohn employs some thirty employees, all of who [sic] would lose their employment should Rohn be unable to work, and some of whom would lose their employment if Rohn had to restrict her ability to work." (Def. Br. 5.) Therefore, the Court finds that the private interest at stake is Rohn's ability to retain her license to operate a motor vehicle. The second factor examines "the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used." In this case, Rohn elected to Peoplev. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 19of20 resolve the charge against her by entering into a plea agreement. While the People recommended treatment as a first-time offender and placement on probation pursuant to Section 607(b)(1), the People also noted that sentencing was entirely within the Court's discretion. During the change of plea hearing, the Court advised Rohn of the consequences of pleading guilty to Section 607(a) and itsconcomitant penalties. When Rohnexpressed surprise at the mandatory license revocation, the Court granted the parties time to argue the question now before the Court. (See Order, entered Dec. 14,2010.) Accord Fuentes v. Shevin, 407 U.S. 67, 80, (1972) (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223,233 (1864)) ("For morethan a century thecentral meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in orderthat they may enjoy that right they must first benotified.'"). Rohn's license wasnot suspended atthe change of plea hearing. Therefore, the Court finds zero likelihood of erroneous deprivation of Rohn's driver's licenses, particularly because Rohnretained herlicenseto drive pending resolution ofthis matter. Lastly, thethird factor identifies the governmental interest involved. Mackey, 443 U.S. at 17. The Legislature classified certain substances as controlled substances and then criminalized their possession. Subsequently, the Legislature imposed a driver's license revocation for persons convicted of, or pleading guilty to, simple possession of a controlled substance. As discussed above, the Court finds that the government interest here is the restriction in movement of controlled substances and the safety of the roads and highways of the Territory. A balancing of the three factors yields the conclusion that the license suspension procedure comports with procedural due process. Rohn's license to drive is aproperty interest of which she cannot be deprived without due process of law. Government interest here is People v. Rohn SX-03-CR-113 MEMORANDUM OPINION Page 20 of20 motorist safety and restriction of controlled substances. There is no risk of erroneous deprivation of adriver's license under Section 378. Rohn's claim that she and the public lack fair warning ofthe consequences ofpleading guilty to Section 607(a) is unpersuasive. First, ignorance of the law provides no defense, particularly when the defendant is an officer of the court. Second, Section 378 is triggered only upon aconviction of, or plea ofguilty to, Section 607(a). Third, the plain language ofSection 378 states that "any person" convicted or pleading guilty to Section 607(a) shall have their license revoked. As with any statute, Section 378 is enforceable unless and until it is amended, repealed, or struck down by a court of law. Accordingly, the Court finds that Section 378 satisfies procedural due process. V. CONCLUSION Based on the discussion above, the Court finds that Section 378 ofTitle 20 ofthe Virgin Islands Code "was not a slip ofthe legislative pen, nor the result of inartful draftsmanship, but was a conscious and not irrational legislative choice." Bifulco, 447 U.S. at 400. Any person who pleads guilty to or is convicted of simple possession of a controlled substance must have their license to drive revoked for two-years. Section 378 is unambiguous and comports with substantive and procedural due process requirements. ATTEST: VENETJA H. VELAZQUEZ, Esq. Clerk Dated: DArKRYTTr)fiAJiLDONOHUE, SR. Presiding Judge of the Superior Court CE Thi VE CL COPY 20JL HA H. VELASQUEZ, ESQ. JEIHEICOUBT urt Cler i