Cook v. Bright
| Decision Date | 01 October 1962 |
| Citation | 25 Cal.Rptr. 116,208 Cal.App.2d 98 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Dane COOK, Petitioner, v. Tom BRIGHT, as Director of the Department of Motor Vehicles, Respondent. Civ. 26655. |
James L. Hay and Leonard B. Hankins, Long Beach, for petitioner.
Stanley Mosk, Atty. Gen., Warren H. Deering, Calvin W. Torrance, Deputy Attys. Gen., for respondent.
Petitioner herein seeks a writ of mandate directing respondent Bright, as Director of the Department of Motor Vehicles, to vacate and set aside an order revoking petitioner's driver's license for a period of three years.
The facts, as they appear from the record before us, indicate that on March 13, 1962, petitioner pleaded guilty to a charge of violating section 23102 Vehicle Code, misdemeanor drunk driving. The complaint did not contain a charge that petitioner had suffered any prior convictions for driving a motor vehicle while under the influence of intoxicating liquor. Imposition of sentence was suspended and petitioner was granted summary probation for two years upon the following conditions: (1) that he pay a specified fine; (2) that he obey all laws; and (3) that he should not drive a motor vehicle after consuming any alcoholic beverage. The only reference made to petitioner's license is found in what purports to be condition number (4) of his probation and this is the simple statement 'defendant may retain license.'
The record before us shows that prior to its rendition of the order here under attack, the respondent department had received abstracts of the above-mentioned judgment and of two previous judgments convicting petitioner of the same offense; said prior judgments were dated March 16, 1953, and September 11, 1953, respectively. On May 7, 1962, petitioner received from respondent department an 'Order of Revocation' dated May 3, 1962, and indicating that his driving privileges had been revoked for a period of three years under the authority of section 13352(e) Vehicle Code because of his conviction on March 13, 1962, of 'driving while under the influence of intoxicating liquor, a third or subsequent offense within a period of ten years.'
On May 21, 1962, petitioner's attorney wrote respondent department a letter requesting a hearing under section 14100, Vehicle Code, on the ground that petitioner needed his license in his employment and was 'covered by liability insurance.' This letter also states that petitioner 'was tried as a first offender * * * and * * * sentenced as such * * * [and] it is therefore submitted that this case more properly falls within the provisions of Section 13352(a) rather than (e) * * *' (Emphasis added.) Said letter further states 'that for over eight years [petitioner] was completely free of any traffic violations whatsoever * * *' (Emphasis added.)
On June 15, 1962, the department replied advising that petitioner had suffered prior convictions on March 16, 1953, and on September 11, 1953; and that since the revocation of his license was mandatory under these circumstances, there being no provision in the Vehicle Code which would permit the issuance of a license before said revocation ended, 'a hearing would not be in order at this time.'
Petitioner alleges that his counsel traveled to Sacramento to discuss the matter with the department personally 'for the purpose of securing a modification of Respondent's order so that Petitioner would be able to drive a motor vehicle during the course of his employment.' (Emphasis added.) The department again advised him that no such modification was possible under the provisions of Vehicle Code and that a hearing seeking to secure same would therefore serve no useful purpose.
It should be noted that petitioner does not assert that he was ever denied a hearing on the question whether or not he had or had not suffered the prior convictions, or whether the department had mistakenly confused his record with that of some other party. No such assertion has ever been made nor has any such hearing been requested. Both petitioner and respondent appear to agree that the prior convictions had in fact occurred, and that the only ground asserted as a basis for altering the department's order would be either (a) petitioner's alleged hardship, or (b) the invalidity of the order itself as asserted by the petition herein.
Petitioner's first claim of invalidity is based upon the fact that he 'has not been adjudged guilty of a third violation * * * by a Court of Law' and that the court in his latest conviction did not pass upon his priors. As the result of this circumstance, petitioner apparently has been spared the payment of the minimum fine and the five days incarceration required by section 23102, Vehicle Code. Obviously, this was not prejudicial to petitioner, and if he had desired a judicial determination of the question of priors, the court undoubtedly would have granted it if he had presented the true facts at the time of his trial and sentencing.
Petitioner, however, asserts that because the prosecuting officer and the court failed, for whatever reasons, to plead and adjudicate the facts concerning his past convictions, the department was precluded from following the mandatory statute which governed its action following his latest conviction. For this unusual proposition he cites People v. Ratner, 67 Cal.App.2d Supp. 902, 153 P.2d 790, and 39 Ops.California Atty.Gen. Advance sheet 13. However, the issue discussed in both these citations is the limited one involving the punishment to be administered to a defendant by the court and not the related but separate duties of the Department of Motor Vehicles. Even the striking or dismissal of a charge of prior convictions is not the equivalent of a determination that a defendant did not in fact suffer the conviction. (People v. Burke, 47 Cal.2d 45, 51, 301 P.2d 241.)
Section 13352, Vehicle Code, provides: Thereafter follow the prescribed periods of suspension or revocation to be applied in instances of first, second, third or subsequent offenses.
The only precedent event required as a basis for action by the department is receipt by it of 'a record' of conviction. There is no requirement that the record of any conviction must indicate the number of convictions which preceded it. This is, of course, in keeping with the other provisions of the Vehicle Code in this regard, for it is the department that is to advise the court of prior convictions (section 13209) and not that the court...
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