Fox v. Alexis

• Citation: 197 Cal.Rptr. 616,149 Cal.App.3d 780
• Court: California Court of Appeals
• Decision Date: 23 November 1983
• Parties: Dale Wayne FOX, Plaintiff and Respondent, v. Doris V. ALEXIS, as DIRECTOR, etc., Defendant and Appellant. Civ. 22379.

Page 616

197 Cal.Rptr. 616

149 Cal.App.3d 780

Dale Wayne FOX, Plaintiff and Respondent, v. Doris V. ALEXIS, as DIRECTOR, etc., Defendant and Appellant.

Civ. 22379.

Court of Appeal, Third District, California.

Nov. 23, 1983.

As Amended Dec. 14, 1983.

Rehearing Denied Dec. 19, 1983.

For Opinion on Hearing, see 214 Cal.Rptr. 132, 699 P.2d 309.

George Deukmejian, Former Atty. Gen., and John K. Van De Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Corinne Lee Murphy and Faith J. Geoghegan, Deputy Attys. Gen., for defendant and appellant.

William J. Owen and Albert W. Brodie, Sacramento, for plaintiff and respondent.

MODIFICATION OF OPINION, AND ORDER FOR PUBLICATION

EVANS, Associate Justice.

The Department of Motor Vehicles (DMV) appeals from a judgment granting a writ of mandate directing the DMV to set aside an order suspending the driving privileges of Dale Wayne Fox pursuant to Vehicle Code section 13352, subdivision (a)(5). ¹ We reverse.

Fox was arrested and convicted for driving under the influence of alcohol (DUI) in 1978 and 1980, pursuant to former section 23102, subdivision (a). On December 20, 1981, Fox was again arrested for DUI under section 23102, subdivision (a), and was convicted by a jury on March 18, 1982. Fox was granted probation; as a condition of that probation, he was to participate in an alcoholism treatment program pursuant to section 13352.5 in lieu of a three-year driver's license suspension.

On April 23, 1982, after receiving notice of Fox's third conviction, the DMV ordered his driving privileges revoked for three years pursuant section 13352, subdivision (a)(5). Fox petitioned for writ of mandate, arguing that the DMV had erroneously applied an amended portion of section 13352 to him that was not in effect at the time of his offense. The trial court granted the writ, explaining in its statement of decision as follows: "[Fox] was convicted of Section 23102 of the Vehicle Code and not of Section 23152 of the Vehicle Code. Section 13352 of the Vehicle Code, as amended, makes reference to convictions for violations of Section 23152 or 23153. Section 13352, as amended, is not applicable to convictions of Section 23102 of the Vehicle Code. There is no indication of legislative intent that the language in Section 13352 of the Vehicle Code is meant to retroactively apply to violations of Section 23102 of the Vehicle Code."

We agree with DMV that application of amended section 13352 was proper.

DISCUSSION

Section 13352 was amended in 1981 and was part of an extensive revision of the civil and criminal penalties for drunk driving convictions. (See Selected 1981 California Legislation, 13 Pacific L.J. 787.) Section 13352 as amended in 1981 provides that a person convicted of three offenses under section 23152 within a period of five years, shall be subject to a mandatory revocation of driving privileges for a period of three years. (Stats.1981, ch. 939, § 6, p. 3549; ch. 940, § 5, p. 3563.) Under prior law (former § 13352.5), the DMV was not permitted to suspend or revoke the driving privileges of persons previously convicted of DUI offenses if the court had certified to the DMV that the convicted person consented to and participated in a public or private program for problem drinking for at least one year. (Stats.1978, ch. 954, § 2, p. 2954.) The 1981 amendment became effective January 1, 1982, after Fox's third arrest for DUI and prior to his third conviction.

I

Fox first argues that revocation of his driving privileges pursuant to amended section 13352, subdivision (a)(5), ² violates the prohibition against ex post facto legislation contained in the state and federal Constitutions. (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9.) It is well established, however, that statutes which provide for the suspension or revocation of licenses, are not penal statutes subject to ex post facto prohibition, even though they may require the consideration of past offenses. Such statutes are intended to protect the public rather than to punish licensees. (Foster v. Police Commissioners (1894) 102 Cal. 483, 490-491, 37 P. 763; Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 330-331, 308 P.2d 924; Murrill v. State Board of Accountancy (1950) 97 Cal.App.2d 709, 711-712, 218 P.2d 569; Ellis v. Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753, 758-759, 125 P.2d 521; Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 210, 4 Cal.Rptr. 396.)

Although section 13352 plainly provides for revocation or suspension of driving privileges by the DMV, Fox argues the exercise of that administrative authority is penal because explicit reference to it is made in section 23170, ³ which sets forth the criminal penalties for drunk driving.

Newly numbered section 23170, a part of the 1981 legislative revision, which amended section 13352, contains the criminal penalties for DUI previously contained in sections 23101 and 23102. Old sections 23101 and 23102 (now newly numbered 23152 and 23153) also defined the violations of felony and misdemeanor drunk driving; with the exception of enhanced criminal punishments, the substantive provisions of old sections 23101 and 23102 remain unchanged. The reference in amended section 13352, subdivision (a)(5), to a violation of section 23152 "punishable under Section 23170" merely refers to the penalties previously contained in old section 23102 (now § 23152), now separated into a distinctly numbered section, and to the time frame for counting the number of offenses.

Fox argues that "the language of Section 23170 makes it clear that a driver's license suspension under its provisions is punitive, i.e., it operates as a penalty on the defendant." His argument misses the mark. To the extent that section 23170 sets forth the punishment to be imposed in specified circumstances it is penal; however, the operative statute (§ 13352) following the 1981 amendments provides only for the revocation of driving privileges by the DMV--action that has never been considered penal because it is taken for the sole purpose of protecting the public. (Beamon v. Dept. of Motor Vehicles, supra, 180 Cal.App.2d at p. 210, 4 Cal.Rptr. 396; Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 113, 150 Cal.Rptr. 743; Ellis v. Dept. of Motor Vehicles, supra, 51 Cal.App.2d at pp. 758-759, 125 P.2d 521; Henry v. Department of Motor Vehicles (1972) 25 Cal.App.3d 649, 654-655, 102 Cal.Rptr. 36; McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1019, 140 Cal.Rptr. 168.) The reference in section 13352 to section 23170 is for the limited purpose of identifying the circumstances under which the administrative action must occur. That in itself cannot ipso facto transform a statute authorizing license revocation by an administrative agency into a penal provision.

Fox also asserts that because no provision is made under section 13352 for an independent DMV evaluation of fitness to drive, the mandatory suspension is a criminal penalty. Again we disagree. The absence of such a "fitness" hearing does not talismanically render the administrative act of suspending a driver's license a criminal penalty. The Legislature, instead of delegating the fact-finding function of fitness to DMV, has itself determined that three DUI convictions within five years constitutes unfitness to drive and that participation in an alcohol rehabilitation program is not a satisfactory alternative to license suspension. (Cf. Talley v. Municipal Court, supra, 87 Cal.App.3d 109, 150 Cal.Rptr. 743.) While it is true that the DMV now performs the purely "ministerial" act of implementing the suspension, it does not follow that there has been a change in the essential character of the administrative act, which is defined primarily by reference to the purposes such action is intended to serve. (See 7 Ops.Cal.Atty.Gen. 47 (1946).) Contrary to Fox's claim, there is no less an "independent purpose" served by license suspension pursuant to amended section 13352 as under prior law. In both instances the law provided for suspension in order to protect the public from a driver who by his conduct had demonstrated he was unfit to drive. Fox correctly points out that many decisions, holding license revocation statutes to be non-penal, involved situations where an administrative "fitness" hearing had been held. (See Goss v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 268, 269, 70 Cal.Rptr. 447; Beamon v. Dept. of Motor Vehicles, supra, 180 Cal.App.2d at p. 203, 4 Cal.Rptr. 396; Murrill v. State Board of Accountancy, supra, 97 Cal.App.2d at p. 710, 218 P.2d 569; Furnish v. Board of Medical Examiners, supra, 149 Cal.App.2d at p. 328, 308 P.2d 924; United States v. Best (1978) 573 F.2d 1095, 1100; Henry v. Department of Motor Vehicles, supra, 25 Cal.App.3d at p. 655, 102 Cal.Rptr. 36.) However, only the Henry and Best cases expressly cited that fact as evidence of the non-penal character of an administrative license suspension. We conclude the fact such a hearing is not held does not alter the conclusion that license revocation statutes are non-penal.

Fox relies on People v. O'Rourke (1932) 124 Cal.App. 752, 13 P.2d 989, in support of his penal argument. The O'Rourke court stated at page 759, 13 P.2d 989 that "The revocation or suspension of the operator's license is not the imposition of an additional penalty to the judgment of conviction. It is a part and parcel thereof, and ... constitute[s] only that part of the legal penalty which the law inflicts as a part of the judgment of conviction." Fox relies on the quoted passage for the proposition that mandatory administrative suspension is a criminal sanction; we conclude the court was merely recognizing the practical consequences of a DUI conviction. Although the distinction may be subtle, what constitutes a "legal penalty" as that term is loosely used is not necessarily a criminal sanction within the proscription against ex post facto legislat...