#### Barbara F. CALABI et al. v. William H. CONWAY, Jr., Commissioner of the Vermont Department of Motor Vehicles, Individually and in his official capacity, Defendant.

Civ. A. No. 75-264.

United States District Court, D. Vermont.

Dec. 26, 1978.

*77Roger E. Kohn, Hinesburg, Vt., for plaintiffs.

Robert C. Schwartz, Asst. Atty. Gen., State of Vt., Montpelier, Vt., for defendant.

Before WATERMAN, Circuit Judge and HOLDEN and COFFRIN, District Judges.

ORDER

This Court issued an Opinion and Order in this matter dated October 7, 1977, and filed October 11, 1977, which Opinion is reported *sub nom. Calabi v. Malloy,*at 438 F.Supp. 1165 (D.Vt.1977). The plaintiffs subsequently moved that the Court alter or amend its judgment, and for rehearing. The parties, by and through their attorneys, have now reached a Stipulation with regard to this cause. Accordingly, based on the pleadings of record, and the Stipulation of the parties, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:

1. The previous Opinion of this Court is hereby amended as follows, the Court striking hereby any provisions inconsistent with this Order.

2. The defendant and his successors, agents, and employees, shall not suspend motor vehicle operators’ licenses, or the right of unlicensed persons to operate motor vehicles within the State of Vermont, pursuant to 23 V.S.A. § 671(c) or 23 V.S.A. § 2205(e), except as set forth in the Administrative Criteria which are attached to the end of this Order and made a part hereof by reference. By issuing this Order, this Court is not ordering the defendant to suspend licenses, but rather is ordering that the defendant may not suspend licenses except as set forth in said Administrative Criteria. Accordingly, this Court is not confirming the constitutionality or validity of the attached Criteria, or any portion thereof.

3. The defendant shall, within a reasonable period of time, not to exceed ten (10) days from November 17,1978, take reasonable steps to make the existence of the attached Administrative Criteria known to the public, including making the existence of these Administrative Criteria known to State Police officers, and will make copies of these Administrative Criteria available to any members of the public requesting same. The defendant shall supply to town clerks, State Police barracks, and other places in which he normally makes available information concerning the Department of Motor Vehicles, copies of the attached Administrative Criteria within a reasonable period of time, not to exceed thirty (30) days from November 17, 1978.

4. Within a reasonable period of time, not to exceed thirty (30) days from November 17, 1978, the defendant shall cause the following notice to accompany notices sent to persons suspending their motor vehicle operator’s licenses or their right to operate motor vehicles within the State of Vermont pursuant to 23 V.S.A. § 671(c) or 23 V.S.A. § 2205(c):

> “Notice: Your license or right to drive is being suspended in accordance with certain written Administrative Criteria. You may obtain copies of these Administrative Criteria from the Department of Motor Vehicles, town clerk’s offices, State Police barracks, and other locations. The effective date of your suspension may be postponed for five (5) days if you so request as set forth in the Criteria.”

This notice, which shall be in all capital letters, will be indicated on the front of suspension notices, if this is reasonably possible, and, if not reasonably possible, on the back of suspension notices or by a separate sheet accompanying the suspension notices. The Commissioner may add this notice by printing on the form, stickers, rubber stamp, or any other method he chooses.

*785. It is ordered that the named plaintiffs and intervening plaintiffs shall not have their licenses suspended for the convictions for which temporary restraining orders were issued in this cause, except that these previous convictions may be considered in determining suspensions based upon additional convictions for further motor vehicle offenses.

6. The Court acknowledges that plaintiffs have reserved the right to request the Court to order payment of reasonable attorney’s fees, and that defendant has reserved the right to object to the award of any attorney’s fees.

7. The Court also acknowledges that defendant, by entering into the Stipulation aforementioned, has not admitted any improper-, illegal, or actionable conduct or lack thereof of any kind or nature, the defendant entering into said Stipulation solely in an effort to settle the dispute.

8. The Court acknowledges that except as otherwise set forth in this Order or in the Stipulation aforementioned, plaintiffs otherwise withdraw their motion to alter or amend judgment, and for rehearing.

ADMINISTRATIVE CRITERIA — MOTOR VEHICLE LICENSE SUSPENSIONS FOR MINOR MOVING VIOLATIONS

1. *To Whom Do These Criteria Apply?*These Criteria apply to persons convicted of speeding and other relatively minor violations. These violations are listed at the end of these Criteria.

2. *Under What Circumstances Will an Individual’s License Be Suspended?*Your motor vehicle operator’s license, or right to operate a motor vehicle within the State of Vermont, will be suspended under these Criteria only if you are convicted of one of the offenses listed at the end of these Criteria and if *at least*one of the following is true:

> A. The offense for which you are convicted is a second or subsequent moving violation within six (6) months of a previous moving violation, based upon the date of the offense; *or*

> B. An accident occurred as a result of the offense, involving damage, injury or death to some person other than you; *or*

> C. Your license or right to drive has been suspended or reinstated for a moving violation, which suspension or reinstatement occurred within two (2) years preceding the date of this conviction; *or*

> D. You have had four (4) moving violations all of which occurred within the five (5) years preceding the date of this conviction, and your license or right to drive was not suspended for these violations.

3. *Length of Suspension.*Your license will be suspended for a number of days calculated by *adding together*the number of days set forth under each of the following:

> A. If this is the second or subsequent conviction for a violation within six (6) months, based upon the date of offenses: 10 days.

> B. If the violation resulted in damage to property owned by someone other than yourself: 5 days.

> C. If the violation resulted in injury to someone other than yourself: 10 days.

> D. If the violation resulted in someone’s death: 30 days.

> E. If your license or right to drive has been suspended or reinstated for a moving violation within the two (2) years prior to the date of this conviction: 5 days for each occurrence.

> F. If you have had four (4) moving violations within five (5) years from the date of this conviction, with no prior suspension of your license or right to drive: 10 days.

4. *Minimum and Maximum Suspension Period.*Notwithstanding what is set forth in the preceding paragraph, if your license or right to operate a motor vehicle is suspended, it will not be suspended for less than ten (10) days nor more than thirty (30) days.

5. *Exceptions to These Criteria.*Your motor vehicle operator’s license, or right to operate a motor vehicle within the State of *79Vermont, may be suspended in accordance with laws other than these with which these Criteria are concerned. If your conviction is not for one of the offenses listed in Paragraph 8 below, you may accordingly receive a longer suspension. Moreover, if you are convicted of eight (8) or more moving violations arising out of different incidents within a consecutive period of five (5) years, your license will be suspended for a mandatory period of *two (2) years.*The Commissioner of Motor Vehicles also reserves the right to suspend your license in accordance with the provisions of 23 V.S.A. § 671(a), but in that case you would have the opportunity for a hearing if requested. Finally, the Commissioner of Motor Vehicles may, in his discretion, decrease the length of any suspension.

6. *Postponement of Date of Suspension.*If you are notified that your license or right to drive will be suspended on a certain date pursuant to these Criteria, you may have that date postponed for five (5) days, if you make such a request to the Department of Motor Vehicles prior to the effective date of the suspension.

7. *Hearings.*If you believe that your license or right to drive is being suspended in violation of these Criteria, you may notify the Commissioner of Motor Vehicles. The Commissioner shall immediately review the matter, and, in the event that it is clear from the record that an error has been made, this error will be immediately corrected. Otherwise, the Commissioner will grant you a hearing as to whether your license or right to drive is being suspended in violation of these Criteria. Either this hearing shall take place within five (5) days of your request for a hearing, or, in the discretion of the Commissioner, the effective date of your suspension shall be postponed until a hearing is granted. The Commissioner of Motor Vehicles will not give you a hearing to determine whether you were validly convicted, and complaints with regard to such issues should be directed to the Court which convicted you. Any hearing before the Commissioner will only determine whether your suspension violates these Criteria.

8. *List of Moving Violations to Which These Criteria Apply.*These Criteria apply to convictions for the following offenses: (All references are to Title 23 of the Vermont Statutes Annotated.)

> (A) § 601. License required;

> (B) § 602. Exceptions for farm tractors and highway equipment;

> (C) § 611. Possession of license certificate;

> (D) § 612. Restrictions of license;

> (E) § 614. Rights under license;

> (F) § 615. Unlicensed operators;

> (G) § 1003. State speed zones (speeding);

> (H) § 1004. Interstate highway regulations (speeding);

> (I) § 1007. Local speed limits (speeding);

> (J) § 1008. Regulations in municipalities;

> (K) § 1009. Restrictions on controlled-access roadway;

> (L) § 1012. Failure to obey enforcement officers;

> (M) § 1013. Authority of enforcement officers;

> (N) §§ 1021 and 1022. Failure to obey traffic-control signals;

> (O) § 1024. Failure to obey flashing signals;

> (P) § 1026. Failure to obey lane control signals;

> (Q) § 1031. Illegal driving to right;

> (R) § 1032. Failure to keep to the right of center when meeting oncoming traffic;

> (S) § 1033. Illegal passing on the left;

> (T) § 1034. Illegal passing on the right;

> (U) § 1035. Limitations on passing;

> (V) § 1036. No passing zones;

> (W) § 1037. One-way roadways and rotaries;

> (X) § 1038. Driving on roadways laned for traffic;

> (Y) § 1039. Following too closely;

> (Z) § 1040. Improper driving on divided highways;

> (AA) § 1041. Restricted access roadways;

> *80(BB) § 1046. Failure to yield right-of-way at intersection;

> (CC) § 1047. Failure to turn left properly;

> (DD) § 1048. Failure to stop or yield at intersections;

> (EE) § 1049. Failure of vehicles to yield right-of-way when entering from private road;

> (FF) § 1050. Failure to yield to emergency vehicle;

> (GG) § 1051. Failure to yield to pedestrian;

> (HH) § 1053. Failure to exercise due care;

> (II) § 1057. Failure to yield to blind persons;

> (JJ) § 1059. Driving through safety zone;

> (KK) § 1061. Illegal turning at intersections;

> (LL) § 1062. Turning prohibited;

> (MM) § 1063. Unsafe starting of parked vehicle;

> (NN) § 1064. Failure to use required signals;

> (OO) § 1065. Improper use of hand signals;

> (PP) § 1071. Illegal driving on or near railroad grade crossing;

> (QQ) § 1072. Failure to stop at railroad crossings;

> (RR) § 1073. Improper crossing at a railroad grade by heavy equipment;

> (SS) § 1074. Improper emerging from driveway;

> (TT) § 1075. Illegal passing of school bus;

> (UU) § 1081. Basic rule and maximum limits;

> (VV) § 1082. Slow-moving vehicles;

> (WW) § 1083. Special speed limitations;

> (XX) § 1092. Damaging surface of road;

> (YY) § 1093. Smokescreen device;

> (ZZ) § 1095. Operating with television set installed;

> (AAA) § 1113. Illegal backing;

> (BBB) § 1114. Illegal riding on motorcycles;

> (CCC) § 1115. Illegal operation of motorcycles on roadways laned for traffic;

> (DDD) § 1116. Clinging to other vehicles;

> (EEE) § 1117. Illegal footrests and handlebars;

> (FFF) § 1118. Obstructing the driver’s view;

> (GGG) § 1119. Improper opening and closing vehicle doors;

> (HHH) § 1121. Coasting prohibited;

> (III) § 1122. Following fire apparatus prohibited;

> (JJJ) § 1123. Driving over fire hose;

> (KKK) § 1124. Position of operator;

> (LLL) § 1127. Unsafe control in presence of horses;

> (MMM) § 1131. Failure to give warning signal;

> (NNN) § 1132. Illegal driving on sidewalk;

> (OOO) § 1243. Lighting requirements;

> (PPP) § 1256. Motorcycle-headgear;

> (QQQ) § 1257. Face protection.

9. *What Is a “Moving Violation”?*A “Moving Violation” is any violation while the motor vehicle is being operated on a public highway, over which operation the operator has discretion as to the commission of the act with the exception of the offenses pertaining to a parked vehicle, equipment, size, weight, inspection or registration of the vehicle. Note that violations of the following statutes are “Moving Violations” (as are violations of the statutes listed in Paragraph 8 above), although convictions for the following offenses are subject to a separate set of Criteria:

> (A) § 684. Operating after suspension, revocation or refusal of license;

> (B) § 1091. Negligent or reckless operation;

> (C) § 1094. Operation without owner’s consent;

> (D) § 1128. Failure to stop when involved in an accident;

> (E) § 1133. Attempting to elude a police officer;

> (F) § 1201. Driving while under the influence of liquor or drugs.

*8110. *Expiration Date.*After July 1,1979, suspensions will be based on the statutory “point system” which goes into effect on that date, and these Criteria will accordingly expire.

ADMINISTRATIVE CRITERIA — MOTOR VEHICLE LICENSE SUSPENSIONS FOR MAJOR MOVING VIOLATIONS

1. *To Whom Do These Criteria Apply?*These Criteria apply to persons convicted of the offenses listed below. If you have been convicted of a different motor vehicle offense, your license may be suspended in accordance with a document entitled “Administrative Criteria — Motor Vehicle License Suspensions For Minor Moving Violations.”

2. *Suspension.*Your motor vehicle operator’s license, or right to operate a motor vehicle within the State of Vermont, will be suspended under these Criteria only if you are convicted of any of the violations which follow:

> A. *Careless and Negligent Driving, 23 V.S.A. § 1091(a):*

> If you are convicted, but no accident resulted from this offense, your license will be suspended for 30 days if this is your first conviction for this offense, and for 60 days if this is the second or subsequent conviction for this offense. If this violation resulted in an accident, your license will be suspended for 60 days if this is your first conviction for this offense, and for 90 days if this is the second or subsequent conviction for this offense.

> B. *Reckless Driving, 23*V.S.A. *§ 1091(b):*If you are convicted, but no accident resulted from this offense, your license will be suspended for 30 days if this is your first conviction for this offense, and for 60 days if this is the second or subsequent conviction for this offense. If this violation resulted in an accident, your license will be suspended for 60 days if this is your first conviction for this offense, and for 90 days if this is the second or subsequent conviction for this offense.

> C. *Careless and Negligent Driving, Fatality Resulting, 23 V.S.A. § 1091(c):*Upon conviction, your license will be suspended for one year.

> D. *Driving After Your License Is Revoked, or Driving With Your License Suspended, 23 V.S.A. § 674:*If convicted of this offense, your license will be suspended for thirty (30) days if this is the first time you have been convicted of this offense; ninety (90) days if this is the second time you have been convicted of this offense; six (6) months if this is the third time you have been convicted of this offense; and two (2) years if this is the fourth time you have been convicted of this offense.

> E. *Leaving the Scene of an Accident, 23 V.S.A. § 1128:*Your license will be suspended as follows:

> (1) First conviction, and you turned yourself in, 90 days.

> (2) Second or subsequent conviction, but you turned yourself in, six (6) months.

> (3) First conviction, and you did not turn yourself in, six (6) months.

> (4) Second or subsequent conviction, and you did not turn yourself in, one (1) year.

> F. *Operating Without Owner’s Consent, 23 V.S.A. § 1094:*If you are convicted, your license will be suspended for six (6) months if this is your first conviction for this offense, and for one (1) year if this is the second or subsequent conviction for this offense.

> G. *Grand Larceny of Motor Vehicle, 23 V.S.A. § 671(a):*If you are convicted, your license will be suspended for one (1) year if this is your first conviction for this offense, and for two (2) years if this is the second or subsequent conviction for this offense.

> H. *Perjury in Applying for a License or a Registration, 23 V.S.A. § 202:*If you are convicted of this offense your license will be suspended for 30 days if this is your first conviction for this offense, and for one (1) year if this is the second or subsequent conviction for this offense.

> *82I. *Refusing to Obey an Officer, 23 V.S.A. § 1133:*If you are convicted, but no accident resulted from this offense, your license will be suspended for 30 days if this is your first conviction for this offense, and for 90 days if this is the second or subsequent conviction for this offense. If this violation resulted in an accident, your license will be suspended for 60 days if this is your first conviction for this offense, and for six (6) months if this is the second or subsequent conviction for this offense.

3. *Exceptions to These Criteria.*Your motor vehicle operator’s license, or right to operate a motor vehicle within the State of Vermont, may be suspended in accordance with laws other than those with which these Criteria are concerned. You should particularly note that if you are convicted of eight (8) or more moving violations arising out of different incidents within a consecutive period of five (5) years, your license will be suspended for a mandatory period of *two (2) years.*The Commissioner of Motor Vehicles also reserves the right to suspend your license in accordance with the provisions of 23 V.S.A. § 671(a), but in that case you would have the opportunity for a hearing if requested. Finally, the Commissioner of Motor Vehicles may, in his discretion, decrease the length of any suspension.

4. *Postponement of Date of Suspension.*If you are notified that your license or right to drive will be suspended on a certain date pursuant to these Criteria, you may have that date postponed for five (5) days, if you make such a request to the Department of Motor Vehicles prior to the effective date of the suspension.

5. *Hearings.*If you believe that your license or right to drive is being suspended in violation of these Criteria, you may notify the Commissioner of Motor Vehicles. The Commissioner shall immediately review the matter, and, in the event that it is clear from the record that an error has been made, this error will be immediately corrected. Otherwise, the Commissioner will grant you a hearing as to whether your license or right to drive is being suspended in violation of these Criteria. Either this hearing shall take place within five (5) days of your request for a hearing, or, in the discretion of the Commissioner, the effective date of your suspension shall be postponed until a hearing is granted. The Commissioner of Motor Vehicles will not give you a hearing to determine whether you were validly convicted, and complaints with regard to such issues should be directed to the Court which convicted you. Any hearing before the Commissioner will only determine whether your suspension violates these Criteria.

6. *Expiration Date.*After July 1, 1979, suspensions will be based on the statutory “point system” which goes into effect on that date, and these Criteria will accordingly expire.