Appeal of Turner

LAVENDER, Justice: Appellee, Edward C. Turner (Turner), was arrested for the offense of Driving a Motor Vehicle While Under the Influence of Alcohol. He refused, upon proper request by a law enforcement officer, to submit to a chemical test of his breath or blood to determine the alcohol content of his blood. Upon receipt of the officer’s sworn report of the refusal, the Commissioner of Public Safety issued an order revoking appellee’s driving privileges for six months. 47 O.S.1971, § 753. Turner requested and received an administrative hearing before a hearing officer appointed by the Commissioner, 47 O.S. 1971, § 754. Upon the evidence there presented, the order of the Commissioner was sustained. Turner lodged an appeal in the District Court. 47 O.S.1971, § 755. Finding that “ . . . although the revocation is justified, six (6) months is excessive after consideration of plaintiff’s entire driving record,” the trial judge ordered the period of revocation modified from six months to three (3) months. The Department of Public Safety appeals this judgment of modification. The judgment of the trial court as to the modification of the length of suspension is contrary to this court’s holding in State ex rel. Oklahoma Department of Public Safety v. Kopczynski, Okl., 499 P.2d 1384 [1262] (1972). As was held in that case, the district court is not authorized by 47 O.S. 1967, § 6-211 to modify the six months’ suspension. We do not distinguish Kop-czynski, supra, from this case based on hardship found there. If, as appellee contends, 47 O.S.1971, § 6-211 does grant authority to modify, then there would be no need for the specific authorization contained in the 1975 amendment, Laws 1975, c. 119 § 4, to 47 O.S. 1971, § 755. The legislature recognized Kopczynski, supra, as correctly interpreting the legislative intent and proceeded to provide by the 1975 amendment a specific and limited exception to the rigid requirement of the six months’ suspension contained in the Implied Consent Law. As to the legislative intent, when § 755 was originated, this court said in Kuykendall v. Department of Public Safety, No. 48,153, Okl., 544 P.2d 516, promulgated December 23, 1975. “Section 755 was amended by Laws 1975, effective May 13, 1975, through the addendum of language to allow the district court to make the type of modification here involved. * * *. Section 755 as a part of the Implied Consent Law originated in 1967 and became effective January 1, 1969. Kopczynski, supra, was in July, 1972. The 34th Legislature has since met in the First Regular Session, 1973, and the Second Regular Session, 1974. The amendment came in the 35th Legislature, First Regular Session, 1975. That amendment denotes a change in the law by the legislature. We do not find it expresses the intention of the 31st Legislature in its First Regular Session in 1967. As stated in Linington v. McLean County, N. D., 161 N.W.2d 487 (1968): ' * * * an amendment to a statute usually indicates an intention to change its meaning, based upon the theory that the Legislature is not presumed to do a useless act. 2 Sutherland, Statutory Construction (3rd ed.) § 5110; 82 C.J.S. Statutes § 384b(2). Further, the legislative intent that is controlling in the construction of a statute has reference to the Legislature which enacted it, not a subsequent one. Subsequent amendments cannot be considered as indicating the intention of the Legislature in adopting earlier statutes. 82 C.J.S. Statutes § 384, p. 900. (Emphasis added.)’ We do not agree the 1975 amendment expresses the intent of the 1967 Legislature.” The “issues” to be determined in the appeal proceeding before the district court are “whether the person had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of alcohol or intoxicating liquor, whether the person was placed under arrest and whether he refused to submit to the test or tests (for alcoholic content of his blood).” 47 O.S.1971, § 754. If these questions are answered affirmatively, then it is mandatory (with the exception specified in the 1975 amendment to § 755) that such a driver not be permitted to operate his vehicle upon the public highways of this state for six months. The suspension is affirmed with the modification thereof reversed. WILLIAMS, C. J., and DAVISON, IRWIN, BERRY and BARNES, JJ., concur. HODGES, V. C. J., and SIMMS and DOOLIN, JJ., dissent.