Agresti v. Department of Motor Vehicles

• Decision Date: 23 April 1992
• Docket Number: No. F016451,F016451
• Citation: 5 Cal.App.4th 599,7 Cal.Rptr.2d 353
• Court: California Court of Appeals Court of Appeals
• Parties: Richard John AGRESTI, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 353

7 Cal.Rptr.2d 353

5 Cal.App.4th 599

Richard John AGRESTI, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. F016451.

Court of Appeal, Fifth District, California.

April 23, 1992.

As Modified on Denial of Rehearing May 21, 1992.

[5 Cal.App.4th 601] Daniel E. Lungren, Atty. Gen., N. Eugene Hill and Allen Sumner, Asst. Attys. Gen., Cathy A. Neff, Deputy Atty. Gen., Sacramento, for defendant and appellant.

Canelo, Hansen & Wilson and Rickey D. Wallace, Merced, for plaintiff and respondent.

OPINION

STONE (Wm. A.), Associate Justice.

THE CASE

Appellant, Department of Motor Vehicles (Department) appeals from a judgment of the superior court granting the petition for writ of mandate of respondent, Richard John Agresti. The judgment directs the Department to set aside its order suspending Agresti's driving privilege.

BACKGROUND

A vehicle occupied by Agresti and two friends became stuck in the dirt on August 26, 1990. The parties disagree about which of the three men was driving at the time. While the men were waiting for help to free the truck, Patrolman Lawson of the California Highway Patrol arrived at the scene in response to a report of an accident. Lawson observed that Agresti appeared to be intoxicated. After administering field sobriety tests, the officer arrested Agresti for driving under the influence. A blood test made shortly afterward indicated Agresti had a blood alcohol level of 0.09 percent.

Patrolman Lawson also issued an "Administrative Per Se Order of Suspension" pursuant to sections 13353.2 and 13353.3 of the Vehicle Code ¹ ordering suspension of Agresti's driving privilege after 45 days.

A criminal complaint in the municipal court charged Agresti with violation of sections 23152, subdivisions (a) and (b), (driving under the influence) and 16028, subdivision (a), (failure to provide evidence of financial responsibility). On the day scheduled for trial, the court dismissed the charges on motion of the deputy district attorney.

Almost two and one-half months later the Department held a formal hearing on the order of suspension at which it took testimony from Agresti, his wife, the other two men with him on the evening he was arrested, and Patrolman Lawson. A day after the hearing the Department issued a "Notice of Findings and Decision" sustaining the order suspending Agresti's driving privilege. Agresti's license was suspended for one year because he had a violation within the previous seven years for driving under the influence.

Following Agresti's request for administrative review of the decision, the Department issued a "Notice of Decision of Administrative Review" upholding the one-year suspension.

Agresti then filed a petition for writ of mandate in the superior court alleging the invalidity of the Department's suspension order on several separate grounds. The court issued an alternative writ of mandate directing the Department to reinstate Agresti's driver's license or to show cause. Following a hearing the court concluded because the municipal court dismissed the criminal charges against Agresti, section 13353.2, subdivision (e) required the Department to reinstate his license. The court did not decide any other issue. Thus, there is but one issue on appeal: whether a dismissal of criminal charges for driving under the influence is equivalent to an acquittal for the purposes of section 13353.2, subdivision (e).

DISCUSSION

Section 13353.2 is part of an administrative procedure for suspending the driving privileges of persons who drive under the influence of intoxicants. The purpose of the procedure has been declared:

"(a) To provide safety for all persons using the highways of this state by quickly suspending the driving privilege of those persons who have shown themselves to be safety hazards by driving with an excessive concentration of alcohol in their bodies.

"(b) To guard against the potential for any erroneous deprivation of the driving privilege by providing an opportunity for administrative review prior to the effective date of the suspension and an opportunity for a full hearing as quickly as possible after the suspension becomes effective.

"(c) To place no restriction on the existing ability of a prosecutor to pursue criminal actions pursuant to Section 23152 or 23153 of the Vehicle Code." (Stats.1989, ch. 1460, § 1, No. 11, West's Cal.Legis. Service, p. 5550.)

If a person arrested for violation of section 23152 or 23153 is determined to have a blood alcohol level of 0.08 percent or more, an officer, acting on behalf of the Department, is required to serve the person with notice of an administrative order suspending his or her driving privilege (§ 23158.5). The suspension order becomes effective 45 days after service of the notice (§ 13353.3, subd. (a)). The Department itself must review the order to determine, by a preponderance of the evidence, that the officer had reasonable cause to believe the person violated section 23152 or 23153, the person was placed under arrest, and the person was driving or was in actual physical control of the vehicle while intoxicated (§ 13557). A person who has received a suspension order may request a hearing limited to these same issues (§ 13558) and may seek judicial review of an adverse decision (§ 13559).

Section 13353.2 requires the Department to reinstate a person's driving privilege if the person is "acquitted" of related criminal charges. That section states in part:

"(a) The department shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving or was in actual physical control of a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.

"...

"(e) The determination of the facts in subdivision (a) is a civil matter which is independent of the determination of the person's guilt or innocence, shall have no collateral estoppel effect on a subsequent criminal prosecution, and shall not preclude the litigation of the same or similar facts in the criminal proceeding. If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), the department shall immediately reinstate the person's privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a)...." (Emphasis added.)

The Department contends the term "acquitted" in section 13353.2, subdivision (e) refers to an adjudication of the facts underlying the administrative suspension. Agresti, on the other hand, argues "acquitted" means only that further prosecution of the criminal charge is barred, whether or not there has been a factual determination on the merits. Because Penal Code section 1387 provides dismissal of a misdemeanor which is not charged with a felony bars a second prosecution for the same offense, he contends he has been "acquitted" within the meaning of section 13353.2, subdivision (e).

The goal of statutory construction is to determine the intent of the Legislature in order to give effect to the purpose of the law. (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 17-18, 194 Cal.Rptr. 722.) A provision should be given a reasonable and common sense interpretation. The court should consider such matters as " ' "context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction." ' " (Id. at p. 18, 194 Cal.Rptr. 722.)

Section 13353.2 is part of the same statutory scheme as section 13353 which requires the Department to suspend or revoke a person's driving privilege for failure to submit to blood alcohol tests. Such laws " 'must be liberally construed to effect their objects and suppress the mischief at which they are directed. They should not be given a strained construction that impairs their remedial effect.' " (Bush v. Bright (1968) 264 Cal.App.2d 788, 792, 71 Cal.Rptr. 123.)

The record on appeal does not disclose the reason for the dismissal of the criminal charges filed against Agresti. A criminal case may be dismissed on any one of several grounds, some based on procedural defects, others based on the merits of the case. Indeed, some dismissals are simply "in furtherance of justice." (Pen.Code, § 1385.) Thus, a dismissal does not necessarily involve a consideration of the merits of the cause.

The term "acquittal," on the other hand, generally refers to a disposition based upon a determination of the merits. ² "[A] defendant is acquitted only when 'the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' [Citation.]" (United States v. Scott (1978) 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 [defining the term in the context of double jeopardy].) ³

"Acquittal" has also been used in a more general sense to refer to any disposition which bars further prosecution of a particular criminal charge, even when the disposition is not based on the merits. A dismissal has sometimes been termed an acquittal to indicate its preclusive effect. For example, Penal Code section 1101 provides discharge of a codefendant to act as a witness, under Penal Code section 1099 or 1100, "is an acquittal of the defendant discharged, and is a bar to another prosecution for the same offense." However, the term "acquittal" as used in Penal Code section 1101 "... is not to be construed as an acquittal on the merits. The dismissal ... was not an adjudication that [defendant] was not guilty of the crime charged therein, but it was a bar to prosecution of [defendant] on that charge." (People v. Hadden (1947) 79 Cal.App.2d 635, 638, 180 P.2d 371. See also People v. Gilbert (1938) 26 Cal.App.2d 1, 25-26, 78 P.2d 770.) ⁴

Other courts have also drawn the same distinction in similar contexts. In People v. Simpson (1944)...