Cook v. Department of Motor Vehicles

• Citation: 109 Cal.Rptr. 104,33 Cal.App.3d 265
• Court: California Court of Appeals
• Decision Date: 08 February 1973
• Parties: Lorin Oswald COOK, Sr., Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Respondent. Civ. 12140.

Page 104

109 Cal.Rptr. 104

33 Cal.App.3d 265

Lorin Oswald COOK, Sr., Petitioner and Appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Respondent.

Civ. 12140.

Court of Appeal, Fourth District, Division 2, California.

Feb. 8, 1973.

[33 Cal.App.3d 266] Rick Allen, Long Beach, for petitioner and appellant.

Evelle J. Younger, Atty. Gen., and Jeffrey S. Wohlner, Deputy Atty. Gen., for respondent.

OPINION

BY THE COURT.

Pursuant to Vehicle Code, section 15023(a)(2) the Department of Motor Vehicles received notification that defendant had been convicted of driving while intoxicated on October 14, 1969, in the State of Arizona, and also was convicted of driving while intoxicated on January 11, 1971, in the State of Florida. Pursuant to Vehicle Code, section 13352(c), on August 17, 1971, defendant's driving privilege was suspended by the State of California for a one-year period commencing January 11, 1971.

Defendant filed a petition for writ of mandate in the superior court to compel the Department of Motor Vehicles to annul its order of August 17, 1971. The petition alleged that the Department of Motor Vehicles in making its order of suspension exceeded its jurisdiction in that both out-of-state convictions were constitutionally invalid. ¹

The Department of Motor Vehicles brought a motion to dismiss the action. The court dismissed the writ of mandate pursuant to said motion and discharged the alternative writ of mandate because it was then moot. The dismissal was granted pursuant to Thomas v. Department of Motor Vehicles, 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858.

The facts of Thomas are virtually identical with those herein except that the two prior convictions were in California. In Thomas the trial court determined the convictions were invalid and granted the petition. The Supreme Court reversed.

Thomas held that upon receipt of abstracts of judgments showing two drunk driving convictions within a seven-year period, the department pursuant to Vehicle Code, section 13352(c) is required to suspend the driving privilege and it is not a part of the department's duty to pass on the validity of the judgments. It further held that mandate does not lie against the department for the purpose of determining the validity of prior convictions as that agency is not empowered to make such a judicial determination. (Thomas v. Department of Motor Vehicles, Supra, 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858; Fitch v. Justice Court, 24 Cal.App.3d 492, 495, 101 Cal.Rptr. 227.)

Thomas observed that petitioner could have sought to have the rendering court set the conviction aside at any time upon the grounds that it was constitutionally invalid. In the alternative, petitioner could have petitioned the superior court for mandate against the rendering court and could have challenged the first judgment in the second proceeding.

Where the convictions are in California courts, the petitioner must first move to vacate the alleged unconstitutional judgment in the court which rendered that judgment. (Fitch v. Justice Court, Supra, 24 Cal.App.3d 492, 496, 101 Cal.Rptr. 227.) Petitioner admits that the remedy of challenging the convictions in the rendering courts is available to him. He also admits that the department cannot be required through mandate to make a judicial determination of the constitutionality of his prior convictions. The fact that petitioner's convictions are...