Berg v. Valverde

• Decision Date: 23 November 2010
• Docket Number: C063107,Super. Ct. No. SC20090105
• Parties: MICHAEL ALLEN BERG, Plaintiff and Appellant, v. GEORGE VALVERDE, as Director, etc., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

MICHAEL ALLEN BERG, Plaintiff and Appellant,

v.GEORGE VALVERDE, as Director, etc., Defendant and Respondent.

C063107

Super. Ct. No. SC20090105

COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT.

Filed: November 23, 2010

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The Department of Motor Vehicles (DMV) suspended Michael Allen Berg's California driver's license pursuant to Vehicle Code section 13352, subdivision (a)(1), after he was convicted in Nevada of violating Carson City Municipal Code section 10.22.020, which prohibits driving or exercising "actual physical control of a motor vehicle" while "under the influence of intoxicating liquor," a misdemeanor.¹

Berg filed a petition for writ of mandate against George Valverde, Director of the DMV, seeking to set aside the DMV's discipline of his license, and to remove the Nevada conviction from his California driving record. He argued that the Carson City Municipal Code allows a driving under the influence conviction to be based upon conduct which, if committed in California, would not constitute a violation of California's driving under the influence statutes. The trial court denied Berg's petition for a writ of mandate.

Berg appeals. We find that, because the record does not show that Berg was convicted on the basis of conduct which, if committed in this state, would constitute a violation of California's driving under the influence laws, the DMV erred in suspending his license and recording the conviction on his California driving record.

BACKGROUND

An amended criminal complaint was filed in Carson City Municipal Court case No. 08CR01961-1C, alleging that on September 26, 2008, Berg "did willfully and unlawfully drive or exercise actual physical control of a 1999 black and green Harley-Davidson motorcycle, upon a public street or highway, or premises to which the public has access, and while doing so, did have 0.08 percent or more by weight of alcohol in his blood or breath, and/or did have 0.08 percent or more by weight of alcohol in his blood or breath within two hours of driving or exercising actual physical control of said vehicle... while under the influence of intoxicating liquor, some of whichoccurred at or near U.S. Highway 50 and Flint Drive, Carson City, Nevada."

It also alleged that, on the same date, Berg "drove a 1999 black and green Harley-Davidson motorcycle at a speed of 80 miles per hour in a posted 55 mile per hour speed zone, all of which occurred at or near U.S. Highway 50 and Flint Drive, Carson City, Nevada."

He was charged with two misdemeanors: violating Carson City Municipal Code [CCMC] 10.22.020[²] (count I) and "basic speed" a misdemeanor defined by CCMC 10.20.010[³] (count II).

Berg entered a no contest plea in case No. 08CR01961-1C. The record on appeal contains no reporter's transcript of these proceedings. A certified copy of a two-page document entitled "DUI Waiver of Rights" shows Berg's initials next to paragraph 1, which reads: "I understand I have been charged with driving or being in actual physical control of a motor vehicle on a highway or on premises to which the public has access in Carson City on the 26th day of Sept, 2008, in violation of Carson City Municipal Code 10.22.020" while "under the influence of intoxicating liquor; and/or while having 0.08% or more by weightof alcohol in my blood or breath; and/or while having a concentration of alcohol of.08 or more in blood or breath within 2 hours after driving or being in actual physical control of a vehicle." In both places, the word "driving" is struck out. The final paragraph initialed by Berg reads: "I am voluntarily pleading... Nolo Contendere (No Contest) to the offense as stated in the first paragraph without any promise of leniency or threats having been made because it is in my best interest to do so."

The "judgment and order of the court" entered in case No. 08CR01961-1C on the same date shows Berg's no contest plea to violating CCMC 10.22.020, and reports that count II, the speeding violation charge, was dismissed.

A month after the Nevada conviction, the DMV notified Berg that his California driver's license had been suspended as a result of his Nevada conviction. (Veh. Code, § 13352.)

Berg filed a petition for writ of mandate, seeking an order directing the DMV to rescind the suspension of his driver's license, and to remove the "DUI conviction" from his record. He asserted that the conduct prohibited by the Carson City Municipal Code is not substantially similar to the analogous California statute prohibiting driving under the influence, in that it also prohibits being in "actual physical control" of a vehicle while intoxicated.

The trial court denied Berg's petition; he now appeals from that order.

DISCUSSION

I. Standard of Review

In reviewing a suspension under Vehicle Code section 13352, the trial court's "limited role... is to determine whether DMV acted within or outside the scope of the mandatory duty imposed upon it to make the required suspension or revocation." (Morris v. Department of Motor Vehicles (1991) 231 Cal.App.3d 151, 159.) Because the judgment upholding Berg's suspension was "based on the trial court's application of the relevant statutes to undisputed facts[,]" we apply a de novo standard of review. (Moles v. Gourley (2003) 112 Cal.App.4th 1049, 1054 (Moles).)

II. Statutory Framework

California driving privileges may be suspended based on qualifying out-of-state driving under the influence convictions. (§ 13352, subds. (a), (d) [mandatory suspension]; § 13363, subd. (a) [discretionary suspension]; see Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1517.)

As applicable here, Vehicle Code section 13352, subdivision (a), states that the DMV shall immediately suspend or revoke a person's driving license "upon the receipt of an abstract of the record of a court showing that the person has been convicted of a violation of [among others] Section 23152 or 23153...." Section 23152 makes it "unlawful for any person who is under the influence of any alcoholic beverage... to drive a vehicle." (§ 23152, subd. (a); see Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 372, fn. omitted.) Section 23153 prohibits driving "while under theinfluence of any alcoholic beverage or drug" causing injury (while under the influence of any alcoholic beverage or drug") and driving "while having 0.08 percent or more, by weight, of alcohol in his or her blood" causing injury. (Veh. Code, § 23153, subds. (a), (b).)

By its own terms, the license suspension provisions of Vehicle Code section 13352 are triggered by out-of-state driving under the influence convictions incurred by California license holders. Subdivision (d) of that statute states: "A conviction of an offense in a state... of the United States... that, if committed in this state, would be a violation of Section 23152, is a conviction of Section 23152 for the purposes of this section, and a conviction of an offense that, if committed in this state, would be a violation of Section 23153, is a conviction of Section 23153 for the purposes of this section. The department shall suspend or revoke the privilege to operate a motor vehicle pursuant to this section upon receiving notice of that conviction."⁴

III. Suspension of Berg's license was not justified

Under California's DUI law, a driver's license may be suspended only if he "drive[s]" while intoxicated. (§ 23152, subd. (a).)

The DMV's duty to suspend driving privileges is automatic and immediate "upon receipt of an abstract of the record of a court" showing that the person has suffered a conviction for out-of-state conduct which, "if committed in this state, would be a violation of Section 23152." (§ 13352, subds. (a), (d).) But, the abstract must demonstrate proof of such a conviction. (§ 13352, subd. (a).)

It does not. The abstract from the Carson City Justice and Municipal Court states Berg was charged with "10.22.020 CS DUI ALCOHOL AND/OR CONTROLLED OR PROHIBITED SUBSTANCE, ABOVE THE LEGAL LIMIT, 1ST OFFENSE." But, as we have explained, the Carson City Municipal Code bearing the number on the abstractprohibits both driving and nondriving conduct: it also covers a person who is "in actual physical control of a vehicle" and "[i]s under the influence of intoxicating liquor" or has a blood or breath-alcohol level of 0.08 percent or higher. A person can violate the Carson City code by being in such an intoxicated state either on a public street or highway "or on premises to which the public has access within Carson City."

In California, such nondriving conduct is generally prosecuted as public drunkenness under Penal Code section 647, subdivision (f). (Draeger v. Reed, supra, 69 Cal.App.4th at p. 1522.) Public drunkenness is not a crime which, "if committed in this state, would be a violation of Section 23152" and gives rise to a driver's license suspension. (§ 13352, subds. (a), (d).)

Valverde, acting for the DMV, failed to provide sufficient admissible evidence that Berg was convicted of driving under the influence in Nevada. The appearance of the acronym DUI appears to be a shorthand reference to the Carson City Municipal Code which, we have explained, prohibits both driving and nondriving conduct. Nor has the DMV shown that Berg pled no contest to intoxicated driving; his initials and signature appear on a plea form from which the word "driving" has been stricken from the applicable Carson City Municipal Code language.

Finally, the Attorney General argues that Berg's dismissed speeding charge constitutes "competent evidence" that Berg was driving. It does not. (Cf. Draeger v. Reed, supra, 69 Cal.App.4th at p. 1523 [although charging document is properlyincluded...