No. 22341 - Jennings E. Boley v. Jane L. Cline, Commissioner,
Department of Motor Vehicles
Cleckley, J., concurring:
Because I believe the appellant failed to demonstrate the
findings and conclusions made by the Commissioner were "clearly
erroneous" or an "abuse of discretion," I concur.
From a factual and legal standpoint, this case is very
difficult. Of course, there can be no doubt that Trooper Karastury
had "reasonable suspicion" to stop the appellant and, while a
closer call, had "probable cause" to make an arrest. The
difficulty occurs, however, when we address the issue whether the
Commissioner's ultimate determination of "driving under the
influence" is supported by a preponderance of the evidence.
Unfortunately, the majority's opinion does not offer any
insight as to the difference between these evidentiary standards.
This case highlights our need to clarify the law in this area of
administrative proceedings, both as to the initial burden of proof
and the standard of review.
As I have consistently argued, "'a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of
adjudication.'" Schlup v. Delo, ___ U.S. ___, ___, 115 S. Ct. 851,
866, ___ L.Ed.2d ___, ___ (1995), quoting In re Winship, 397 U.S.
358, 370, 90 S. Ct. 1068, 1076, 25 L.Ed.2d 368, ___ (1970) (Harlan,
J., concurring). Clearly, the standard of proof assigned to any
adjudication should reflect the relative importance attached to the
ultimate decision. Application of a "reasonable suspicion" or
"probable cause" standard would give insufficient weight to the
importance of taking one's driver's license. See Bell v. Burson,
402 U.S. 535, 91 S. Ct. 1586, 29 L.Ed.2d 90 (1971) (a person cannot
be deprived of his driver's license without being afforded a
modicum of procedural due process). The paramount importance of
avoiding the injustice of mistakenly taking the driver's license of
an innocent person requires application of at least the
preponderance of proof standard, which is significantly higher than
the probable cause standard. I have grave concern whether the
preponderance standard was met in this case.