Moomjian v. Zolin

• Decision Date: 02 February 1993
• Docket Number: No. B059049,B059049
• Parties: Robin L. MOOMJIAN, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 335

16 Cal.Rptr.2d 335

12 Cal.App.4th 1606

Robin L. MOOMJIAN, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.

No. B059049.

Court of Appeal, Second District, Division 1, California.

Feb. 2, 1993.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Henry G. Ullerich and Martin H. Milas, Deputy Attys. Gen., for defendant and appellant.

Dennis A. Fischer, Santa Monica, and Alan S. Yochelson, Los Angeles, for plaintiff and respondent.

ORTEGA, Acting Presiding Justice.

INTRODUCTION

Respondent Robin L. Moomjian, a Georgia resident, was convicted in Georgia of two driving under the influence of alcohol (DUI) offenses more than five years apart. Georgia treats DUI offenses more than five years apart as first offenses, and first offenders' licenses remain valid if they complete a basic drinking driver program. Because Moomjian completed such programs, her Georgia driver's license remained valid.

Less than seven years after her first offense, Moomjian moved to California and applied for and received a California driver's Moomjian petitioned for a writ of mandamus, arguing that had her convictions occurred in California, she could have sought probation from a California court under conditions permitting her license to be restricted rather than suspended. Moomjian argued that section 13363, subdivision (a), which gives the DMV discretion to suspend licenses based on out-of-state convictions, gave it discretion whether to suspend her license based on her Georgia DUI convictions. The trial court agreed, entered judgment for Moomjian, stayed her license suspension, and issued the writ, ordering the DMV to conduct a hearing to determine whether her license should be suspended.

license from the appellant California Department of Motor Vehicles (DMV). A few months later, after discovering Moomjian's Georgia DUI convictions, the DMV [12 Cal.App.4th 1609] suspended her driver's license under authority of Vehicle Code section 13352, subdivision (a)(3), which mandates license suspension for drivers convicted of two DUI offenses within seven years. ¹

The DMV properly appeals. (Code Civ.Proc., §§ 904.1, subd. (a), 1064, 1110; Goddard v. South Bay Union High School Dist. (1978) 79 Cal.App.3d 98, 104, 144 Cal.Rptr. 701; 8 Witkin, Cal.Procedure (3d. ed. 1985) Extraordinary Writs, § 208, pp. 834-835.) We agree with the DMV that Moomjian could have her license restricted rather than suspended only if placed on probation, and that only a court, not the DMV, can do so. Moomjian could have sought an appropriate probationary sentence from the Georgia court. Moreover, because Moomjian's DUI convictions caused her suspension, section 13363, subdivision (a), which gives the DMV discretion to suspend licenses based on out of state convictions, gives way to section 13352, subdivision (a)(3), which mandates license suspension when based on DUI convictions. We reverse the judgment, remand, and instruct the trial court to enter judgment for the DMV.

FACTS ²

On November 29, 1983, Moomjian, then a Georgia resident and licensed driver, violated the Georgia DUI law. On January 24, 1984, she pled no contest. On September 15, 1989, Moomjian again violated the Georgia DUI law. On October 9, 1989, Moomjian pled no contest to the second offense.

The Georgia DUI laws require license suspensions for first time offenders unless they plead no contest and agree to complete a basic drinking driver program. Moreover, if at least five years elapse between DUI offenses, Georgia treats subsequent DUI crimes as first offenses. Because more than five years passed between her Georgia DUI offenses, the Georgia courts treated Moomjian's second conviction as a first offense. Moomjian completed basic drinking driver programs after both convictions and thus maintained a valid Georgia driver's license throughout her Georgia residency. ³

On October 1, 1989, Moomjian became a California resident. She "moved from Georgia to California for both personal and business reasons ... unrelated to any factors having to do with her privilege to drive." Moomjian "acknowledged her residence change, turned her Georgia license in to the [DMV] and applied for a California driver's license." On December 22, 1989, the DMV issued Moomjian a California driver's license.

On April 12, 1990, the DMV notified Moomjian that, under the authority of section 13352, subdivision (a)(3), it had suspended her California driver's license for 18 months beginning October 9, 1989, because of her two Georgia DUI convictions. ⁴ The DMV did not offer Moomjian any administrative review of the suspension.

Moomjian petitioned the trial court for a writ of mandamus, arguing that a mandatory suspension treated her more harshly than if her second conviction had occurred in California, where she could have sought a restricted license. Moomjian argued that section 13363, subdivision (a) gave the DMV discretion whether to suspend her license based on her Georgia convictions. ⁵ At the hearing, the DMV acknowledged Moomjian should have some remedy or forum in which to seek a restricted rather than suspended license, but argued that section 13352, subdivision (a)(3) mandated license suspension unless specified probationary conditions were imposed by a court. The DMV argued it lacked authority to grant probation or exercise discretion regarding the license suspension.

The trial court entered judgment for Moomjian, stayed the suspension (although limiting Moomjian to driving to and from, and as needed in, her work), issued the writ, and ordered the DMV to hold a hearing, exercise discretion, and decide whether to suspend Moomjian's license. The trial court explained its ruling: "[Moomjian] is not in the same position that she would have been in if the convictions had been in California because ... if [the second conviction] had occurred in California, she would have had a chance to save her driver's license. [p] She could have appealed to the court and the court could have ordered a ... probationary scheme, that would have permitted her to keep a restricted driver's license. It would have permitted her to drive to and from work and in her work, if that was necessary. [p] Because the convictions occurred in Georgia and because they were more than five years apart, they were each treated in Georgia as a first conviction and ... she did not face any suspension of her driver's license in Georgia." "[I]f she goes back to the Georgia court the Georgia court doesn't have the authority to grant the restricted license because in Georgia it's treated simply as another first offense."

ISSUE

The DMV contends the trial court erred because the DMV must suspend Moomjian's

license and lacks discretion to restrict it. ⁶

DISCUSSION

A writ of mandamus "may be issued by any court ... to any ... board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right ... to which he is entitled, and from which he is unlawfully precluded by such ... board or person." (Code Civ.Proc., § 1085.) "The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law...." (Code Civ.Proc., § 1086.) Where, as here, the facts are undisputed, we independently review the trial court's legal determination that section 13363, subdivision (a), which gives the DMV discretion whether to suspend Moomjian's license based on out-of-state convictions, controls over section 13352, subdivision (a)(3), which mandates license suspension based on in or out-of-state DUI convictions. (Goddard v. South Bay Union High School Dist., supra, 79 Cal.App.3d at pp. 104-105, 144 Cal.Rptr. 701.)

Because driving is a privilege, not a right, license suspension, even where, as here, triggered by criminal convictions, is a civil, not a criminal, sanction. (See Thomas v. Department of Motor Vehicles, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858.) Moreover, where, as here, the driver does not contest the accuracy of her DMV record or the validity of the suspension triggering convictions, suspension is mandatory, not discretionary, and the driver is not entitled to a DMV hearing. (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380, fn. 8, 211 Cal.Rptr. 748, 696 P.2d 141.)

Moomjian concedes she may avoid her relevant mandatory license suspension (§ 13352, subd. (a)(3)) only by being placed on probation by a court under the conditions specified in section 23166, subdivision (b). That section requires a minimum 48-hour jail sentence, payment of a minimum $390 fine, proof of ability to respond in damages, and participation to the court's satisfaction in a second offender alcohol program for at least 18 months. Moomjian argues that, because all her DUI convictions occurred in Georgia, she must receive a California forum, either a DMV or court hearing, to request imposition of the probationary terms required by section 23166, subdivision (b). Moomjian argues that section 13363, subdivision (a) authorizes such a hearing. Otherwise, Moomjian concludes, she is being treated differently than other twice-convicted California drivers whose most recent conviction occurred in California.

We disagree. Underlying Moomjian's argument is the false assumption that she had no Georgia forum in which to seek imposition of the mandatory probation conditions required by section 23166, subdivision (b). Moomjian argues the Georgia In addition, section 13363, subdivision (a) gives the DMV discretion to suspend California drivers' licenses based on out of state convictions comparable to California offenses which "would be grounds for" suspension. Moomjian concedes that the Georgia DUI law is comparable to the California DUI law, but argues that because the license...