No. 111/94-453

Filed May 24, 1995


Jul 14 1995







     Appeal from the Iowa District Court for Muscatine County, 
J.L. Burns, Judge.

     Judicial review of agency action revoking driver's operating 
privileges.  AFFIRMED.

     Thomas J. Miller, Attorney General, David A. Ferree, Special 
Assistant Attorney General, and Kerry Anderson, Assistant 
Attorney General, for appellant.

     Wanda Hills, Muscatine, pro se.

     Considered by Harris, P.J., and Larson, Carter, Lavorato, 
and Snell, JJ.


HARRIS, Justice.

     A statutory change called for revocation of drivers' 
operating privileges upon certain listed criminal convictions.  
The question here is whether the change applies to convictions 
that occurred after the effective date, but for acts committed 
previously.  The district court reversed such a revocation, 
determining that to allow it would amount to an ex post facto 
application of the law.  We affirm.
     Petitioner Wanda Joy Hills was arrested for operating a 
motor vehicle while intoxicated on April 1, 1993.  Following a 
search incident to arrest, she was also charged with possession 
of marijuana in violation of then Iowa Code section 204.401(3) 
(1991) (section 204.401(3) has since been renumbered as section 
124.401(3) (1995)).
     Hills arranged to plead guilty to the marijuana possession 
charge at a pretrial conference, initially scheduled for June 29, 
1993.  On June 22, however, the district court, on its own 
motion, changed the date of the pretrial hearing to July 2, 1993.  
Hills entered her guilty plea on July 2.  In the meantime, on 
July 1, 1993, Iowa Code section 321.209(8) became effective.  It 
provides for mandatory revocation by the DOT of the driver's 
license of anyone convicted of a controlled substance offense 
under Code section 124.401. [footnote 1]
     The DOT revoked Hills' license over her protest that there 
could be no revocation on the basis of occurrences prior to July 
1, 1993.  On judicial review

     [footnote 1]  Iowa Code  321.209(8) states:

          Mandatory revocation.  The department shall upon twenty 
     days' notice and without preliminary hearing revoke the 
     license or operating privilege of an operator upon receiving 
     a record of the operator's conviction for any of the 
     following offenses, when such conviction has become final:


          8.  A controlled substance offense under section 
     124.401 ....


the district count reversed the agency action, holding that, to 
apply the new statute to offenses committed prior to its 
effective date, violated the ex post facto principles of the 
state and federal constitutions.  The DOT brought this appeal to 
challenge the holding.
     I.  Ex post facto applications of law are prohibited by 
article I section 9 clause 3 of the United States Constitution 
and by article I section 21 of the Iowa Constitution.  The ex 
post facto clauses forbid

     [punishing as a crime] an act previously committed, which 
     was innocent when done, [or making] more burdensome the 
     punishment for a crime, after its commission, or [depriving] 
     one charged with crime of any defense available according to 
     [the] law at the time when the act was committed.

Adair Benevolent Soc'y v. State, 489 N.W.2d 1, 4 (Iowa 1992); see 
also State v. Kaster, 469 N.W.2d 671, 673-74 (Iowa 1991).  The ex 
post facto prohibition applies only to penal and criminal 
actions, not to civil actions.  State v. Taggart, 186 Iowa 247, 
254, 172 N.W. 299, 301 (1919) (citing Calder v. Bull, 3 U.S. (3 
Dall.) 386 (1798)).  Our review of this constitutional question 
is de novo.  State v. Niehaus, 452 N.W.2d 184, 187 (Iowa 1990).
     II.  The question is whether the revocation was, in essence, 
a punishment.  If so the ex post facto prohibition would apply.  
On the other hand if the revocation was merely a civil penalty, 
designed to enhance public safety, the ex post facto prohibition 
would not apply.  This is because civil penalties do not violate 
ex post facto clauses, even though their penalties may be 
retroactive and more burdensome.  Thus our controlling question 
is whether license revocation based on possession of a controlled 
substance is a civil penalty or a criminal (or a quasi-criminal) 
     The State argues that license revocations are civil in 
nature, and as an abstract proposition cases support this 
contention.  See, e.g., State v. Moret, 486 N.W.2d 589, 591 (Iowa 
1992) (driver's license suspension of a habitual


offender of motor vehicle laws is for public safety, not for 
punishment of the offender); State v. Blood, 360 N.W.2d 820, 822 
(Iowa 1985) (driver's license revocation for OWI not intended as 
punishment but designed solely for the protection of the public).  
In State v. Funke, ___ N.W.2d ___, ___ (Iowa 1995), we rejected a 
former jeopardy challenge to a driver's license revocation on the 
basis that a civil proceeding was involved, not a criminal one.  
Because it was a civil proceeding, we found the former jeopardy 
prohibition no impediment to the revocation because the statute 
authorizing revocation did not serve both the twin goals of 
punishment-deterrence and retribution.  We said public safety -- 
not punishment -- was the goal; deterrence and retribution were 
not involved.  Id. at ___.
     Our Funke former jeopardy holding, however, does not 
necessarily control Hills' ex post facto challenge.  Ex post 
facto, in contrast with former jeopardy challenges, cannot be 
posited on civil matters.  Iowa has limited the doctrine to cases 
criminal in nature.  In re Ponx, 276 N.W.2d 425, 428 (Iowa 1979).  
This limitation on the ex post facto doctrine applies even where 
the civil consequences are "serious" in nature.  Id.
     The question then is whether Hills' license revocation, 
based on the controlled substance violation, was civil or 
criminal in nature.  The answer turns on whether the essential 
aim of the controlled substance revocation was to promote highway 
safety.  We think in this respect it differs from the "habitual 
offender" revocation statute we considered in Funke.
     In contending the revocation is civil in nature, the DOT 
argues there is a "direct connection" between the possession of 
controlled substances, driving, and public safety.  The district 
court did not perceive such a connection and neither do we.  
Persons who illegally possess drugs are of course subject to 
appropriate criminal punishment.  But many such persons choose 
not to drive.  When they


do not, they do not affect highway safety.  Any connection 
between drugs, driving, and public safety is at most indirect.  
The amended statute authorizing this license revocation was aimed 
essentially at enhancing punishment for controlled substance 
possession.  As such it was quasi-criminal and not civil in 
nature.  Ex post facto principles therefore prohibit application 
of the amended statute.  The district court was correct in so