(dissenting).
I respectfully dissent.
What is rational? Is its meaning only in the eye of the beholder? Do its boundaries flex with the exigencies of the case before us? These questions naturally come from an examination of the constitutional requirements in assessing the legality of legislation. From that assessment, I conclude that “rational” is not a plastic concept that readily yields to individual predispositions. Rather, it is a firm guide that must be protected, rooted as it is in the Due Process Clauses of the United States and Iowa Constitutions.
In 1996 the Iowa legislature, in its laudable attempt to discourage use of illegal drugs, passed a law requiring the Department of Transportation to revoke the driving privileges of any person convicted of a drug offense. Iowa Code § 901.5(10) (1997). The majority decision finds no constitutional infirmity and applies the revocation section to defendant Bell.
Bell, a nineteen-year-old college student, pleaded guilty to the offense of possession of marijuana. The facts are that a police officer found a green leafy substance believed to be marijuana under the seat of Bell's ear. Bell testified that a friend of his said that he (the friend) put the substance in Bell’s ear. Bell was told by the judge that he was in constructive possession because it was his ear. No accusation was made that Bell was engaged in delivery of a controlled substance or that Bell had been driving the car. Bell was fined $250 plus a statutory surcharge of thirty percent ($75) and court costs of $65, total-ling $390, and his driver’s license was revoked for 180 days.
Bell asserts that applying the statute to him violates the Due Process Clauses of the United States and Iowa Constitutions. U.S. Const, amends. V, XIV, § 1; Iowa Const, art. I, § 9. Because the statute does not affect a fundamental right, the appropriate level of scrutiny is the “rational basis” test. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Under this test, the statute must bear a reasonable relationship to a legitimate governmental interest. Glowacki v. State Bd. of Med. Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993).
The statute mandating license revocation fails to state any legislative purpose intended to be accomplished. There is also no evidence in this record to establish a legislative goal. To provide a rational relationship, the majority decides that the legislature had the goal of punishing and deterring the commission of crime and promoting public safety by keeping this class of offenders off the public roads. Having identified the governmental interest, does this legislation bear a reasonable relationship to the goals?
We have recently, in 1995, considered this legislation as to its nature and purpose. We said:
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 *915such 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 holding.
Hills v. Iowa Dep’t of Transp., 584 N.W.2d 640, 642 (Iowa 1995).
Our reasoning supporting our decision in Hills should be equally applicable to the issue in the instant case. The statute is the same, the offense of possession of marijuana is the same, and the claimed purpose of the statute is the same. We should honor our reasoning on the ex post facto issue in Hills and not ignore it when considering whether there is a rational relationship in the due process challenge of the instant case.
In Hills, the indirect connection between drugs, driving and public safety had at least some factual support in that Hills was arrested for driving while intoxicated. Following a search she was charged with possession of marijuana. By contrast, Bell was not operating nor was he charged with operating a motor vehicle. There is no connection or nexus between Bell's possession of marijuana and driving a motor vehicle. The indirect, at most, connection in Hills is a zero connection in Bell’s case.
In examining similar legislation, the Illinois Supreme Court stated:
Because a vehicle was not involved in any way in the commission of the offenses for which defendant was convicted, the revocation of his license bears no relationship, much less a reasonable one, to the public interest we have identified. The same is true of the other offenses enumerated in section 6-205(b)(2).
Moreover, the method used to further the public interest is not reasonable. Keeping off the roads drivers who have committed offenses not involving vehicles is not a reasonable means of ensuring that the roads are free of drivers who operate vehicles unsafely or illegally. To the contrary, the means chosen are arbitrary, not only because the offenses specified in section 6 — 205(b)(2) have no connection to motor vehicles, but also because the inclusion of those offenses and no others is arbitrary. That is, no reason suggests itself as to why the legislature chose the particular offenses enumerated in section 6-205(b)(3), as opposed to other offenses not involving a vehicle.
For these reasons, we hold that the challenged provision is an unreasonable and arbitrary exercise of the State’s police power in violation of the constitutional guarantee of due process and is therefore invalid.
People v. Lindner, 127 Ill.2d 174, 129 Ill.Dec. 64, 68, 585 N.E.2d 829, 833 (1989). Answering the other purpose, deterrence, put forth by the State in Lindner, and by the majority in the instant ease, the court in Lindner said:
The State also argues that deterrence is a legitimate purpose of the challenged provision. If this is the statute’s purpose, it clearly cannot meet the rational-basis test. We will accept the State’s argument that where deterrence is the purpose, it need not be shown that the statute in fact deters anyone. However, the proposition that the legislature might have thought that the loss of driving privileges will deter persons from committing the sex and drug offenses listed in section 6-205(b)(2), all but one of which are felonies punishable by imprisonment, is simply not rational.
Id., 129 Ill.Dec. at 65, 535 N.E.2d at 834 (citation omitted).
Addressing the same statute and its claimed purpose, the Illinois Appellate Court in People v. Lawrence said:
The State counters that revocation of driving privileges for delivery of a controlled substance can be reasonably related to the purpose of repressing the commission of such crimes. The same argument can be made for numerous other crimes committed without the use of a motor vehicle. The choice of this offense and no others remains an arbitrary decision of the legislature.
People v. Lawrence, 206 Ill.App.3d 622, 152 Ill.Dec. 80, 81, 565 N.E.2d 322, 323 (1990).
Of course, any sanction is directed at either deterrence or punishment and some rationale can be advanced for any sanction. However, it is the constitutional responsibili*916ty of the courts to assure that the sanction has a rational basis.
The deterrence objective embraced by the majority as a constitutionally sufficient purpose for this legislation, even as an indirect connection, if stare decisis is respected, is, nevertheless, logically unsupportive as a rational basis. Suspending a person’s license after he has been convicted of a drug offense can only have the intent of deterring future offenses. This rationale presumes that the person will, after completing the sentence, engage in further drug offenses and will use a motor vehicle to do so. Given the much more severe penalty for second offenses, see Iowa Code § 124.411, the driver’s license revocation would have a negligible effect in promoting deterrence. The sanction would most likely affect only those persons who would not, in any event, return to illegal drug use, a pointless and irrational deterrence application. See State v. Fonseca, 106 Ohio App.3d 115, 665 N.E.2d 685, 688 (1995) (Grey, J., dissenting).
Presuming a person will commit further crimes, and punishing him before he does, is neither rational nor constitutional. This assumption, that a person is something less than innocent of a crime that might be committed in the future, has the ring of obliviousness to constitutional rights. Moreover, it is an invidious assumption to make in a case such as this where the drug offender, Bell, did not use a car in committing his first offense. There is no rational basis for deterrence contained in this statute. See id.
The punishment theory as a rational basis is equally flawed. The idea here is that taking a person’s driver’s license will make the punishment for the first drug offense so severe as to make committing the offense too hazardous and unattractive. The question this raises is, if the legislature can punish by depriving a person’s liberty, why is it not within its power to deprive him of his driver’s license? The answer is, that it is not within the legislature’s power, as the Due Process Clauses of our constitutions direct, because driving is not related to Bell's offense of possession of marijuana. See id.
Other legal activities engaged in by drug offenders, as well as law abiding citizens, may arguably have an indirect connection with illegal drug use. Use of cellular phones is common among drug offenders. Bank accounts are used.- Offenders are often high school or college students attending school where drug use is prevalent. Does a rational basis exist for denying a drug offender’s future use of a cellular phone, bank account, or attendance at school on the ground that this is reasonable to deter or punish the commission of crime? I do not think so. Our constitutional principles, logically applied, do not permit deterrent or punitive legislation that is without a rational basis. The United States Supreme Court has advised that the rational basis test, while deferential, is not a wholly toothless standard. Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651, 664 (1976). Undue deference to legislation, that has no rational basis, undermines our principles of government structure whereby our constitutions set the standards for sound and lawful legislation. Without this recognition, our review of due process requirements is a meaningless exercise, reduced to the essence of toothlessness.
The legislature’s frustration, and the public’s, with the problem of extensive illegal drug use is understandable. Legislation that addresses this issue in hopes of providing some remedy is commendable. Yet, under our system of government, legislation must meet constitutional standards. And under our system, the courts have the constitutional responsibility of declaring a statute unconstitutional when constitutional principles have been violated. Often such a decision is an unpopular result.
I believe that this statute revoking Bell’s driver’s license cannot be upheld under the rational basis test of the Due Process Clauses of our constitutions. There is no rational relationship between the crime of possession of marijuana and the revocation of the offender’s driver’s license.
I would reverse and remand this case for vacation of the sentence revoking the defendant’s driver’s license.