Peretto v. Department of Motor Vehicles

• Citation: 235 Cal.App.3d 449,1 Cal.Rptr.2d 392
• Decision Date: 21 October 1991
• Docket Number: No. A052735,A052735
• Court: California Court of Appeals
• Parties: John Richard PERETTO, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 392

1 Cal.Rptr.2d 392

235 Cal.App.3d 449

John Richard PERETTO, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. A052735.

Court of Appeal, First District, Division 3, California.

Oct. 21, 1991.

Review Denied Jan. 23, 1992.

Daniel E. Lungren, Atty. Gen., Jose R. Guerrero, Supervising Deputy Atty. Gen., and Thomas P. Reilly, Deputy Atty. Gen., Oakland, for defendant and appellant.

Cliff Roberson, Mothers Against Drunk Driving, Lancaster, Barry D. Broad, Cal. Teamsters, Public Affairs Council, Sacramento, for amici curiae on behalf of defendant and appellant.

James T. Reilly, Mill Valley, for plaintiff and respondent.

STRANKMAN, Associate Justice. ^*

Vehicle Code section 13353.2 directs the Department of Motor Vehicles (the DMV) to suspend the driver's privilege of a person who was "driving or was in actual physical control of a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood." ¹ Section 13558 entitles a driver to request what is in effect a presuspension administrative hearing; sections 13353.3 and 13353.6 govern the duration of any suspension and differentiate between a narrow group of holders of commercial driver's licenses arrested while driving noncommercial vehicles and other drivers.

The DMV suspended the driver's license of respondent John Richard Peretto after an administrative hearing pursuant to this statutory procedure. The trial court issued a writ of mandate directing the DMV to set aside the suspension, on the ground that the statutory scheme violated equal protection principles. We conclude that court's equal protection analysis was erroneous; we also conclude that the presuspension administrative hearing available to drivers comports with the requirements of due process. Therefore we reverse the order and direct the trial court to deny respondent's petition.

INTRODUCTION

The Legislature enacted legislation in 1989 directing and enabling administrative suspension by the DMV of the driver's license of any person arrested for operating a vehicle with a blood alcohol level in excess of .10 percent; in 1990 the legislation was amended to lower the blood alcohol level to .08 percent. (See Stats.1989, ch. 1460, § 7 et seq., No. 11 West's Cal.Legis. Service, pp. 5554 et seq.; Stats.1990, ch. 431, § 4, No. 9 West's Cal.Legis. Service, p. 1536.) Similar laws providing for administrative license suspension or revocation, sometimes called "administrative per se" laws, have been enacted and are in effect in at least 23 states, and are reported to be an effective deterrent to driving while under the influence of alcohol or drugs. (See U.S. Dept. of Transportation, National Highway Traffic Safety Administration, Questions Most Frequently Asked About Administrative License Revocation (1989).) ² The United States Supreme Court has recognized in another context that the summary character of administrative license suspension fosters public safety and facilitates the prompt removal of drunk drivers from the highways. (Mackey v. Montrym (1979) 443 U.S. 1, 18, 99 S.Ct. 2612, 2621, 61 L.Ed.2d 321 [administrative suspension of licenses of those who refuse to take breath-analysis test upon arrest].)

In this state, if chemical tests show that a person arrested for a drunk driving offense has the prohibited blood alcohol level, the arresting officer or the DMV must serve that person with a notice of order of A person whose license is to be suspended pursuant to section 13353.2 may request either an informal or formal hearing. (§§ 13558, subd. (a); 14100 et seq.) Upon a timely request, the administrative hearing must be held before the effective date of the order of suspension. (§ 13558, subd. (d).) Whether the hearing is informal or formal, the issues to be decided are whether the officer had reasonable cause to believe the person had been driving the vehicle in violation of section 23152 or 23153, the person was placed under arrest, and the person was driving or in actual control of a motor vehicle when that person had 0.08 percent or more, by weight, of alcohol in his or her blood. (§ 13558, subd. (c)(2).) The department's determination is subject to a petition for judicial review. (§ 13559.)

suspension, effective 45 days from date of service. That notice must include the reason and statutory grounds for the suspension, the right to request an administrative hearing, and the date when a request must be made to receive a determination prior to the effective date of the suspension, among other information. (§§ 13353.2, subds. (b), (c); 13353.3, subd. (a), 23158.5, subd. (a).) If no hearing is requested, the suspension becomes effective upon the date specified in the notice, after the DMV determines the facts on the basis of the officer's report. (§§ 13353.2, subd. (a), (d); 13353.3, subd. (a); 13557.)

The general rules governing the period of suspension are set forth in section 13353.3. For a driver who has not been convicted of certain enumerated alcohol-related offenses, and who has not been administratively determined to have refused chemical testing or to have been driving with an excessive concentration of alcohol pursuant to section 13353.2, all within seven years of the instant offense, the suspension period is four months. (§ 13353.3, subd. (b)(1).) ³

Section 13353.6 creates a narrow exception to that general rule. For the holder of a commercial driver's license (commercial licensee), who was operating a noncommercial vehicle at the time of the offense, and who has never been convicted of the enumerated driving offenses or had his or her license suspended or revoked administratively for an offense which occurred on a separate occasion, the suspension period is one month. ⁴ Thereafter, that commercial licensee is entitled to a restricted commercial license authorizing the operation of a motor vehicle only to and from, and in the course and scope of the person's employment, for five months. (§ 13353.6, subd. (a)(1), (2).) Because section 13353.6 applies only to commercial licensees who were not operating a commercial vehicle at the time of the offense, a commercial licensee who was operating such a vehicle when arrested and who otherwise qualifies is subject to the four-month suspension of section 13353.3, subdivision (b)(1).

FACTUAL AND PROCEDURAL HISTORY

Peretto was arrested for driving under the influence of alcohol in violation of section 23152. Peretto does not hold a commercial driver's license and was not driving a commercial motor vehicle. An intoxilyzer-alcohol analyzer test was administered which showed that Peretto had a blood alcohol content of .14 percent. After he was issued a notice of suspension, Peretto requested and was granted an administrative hearing before the DMV. At the conclusion of the hearing, his license was suspended. ⁵

Peretto sought a temporary restraining order and injunctive relief in the superior The court rejected Peretto's due process arguments, but concluded that section 13353.6 violates equal protection principles. The court reasoned: "The record reflects no reasonable legislative purpose for preserving to some intoxicated drivers the option to procure a restricted license, depending on whether or not they hold commercial driver's licenses. The court cannot reasonably infer that the distinction in some manner relates to, or is justified due to commerce since this presumption would ignore the extensive involvement in commerce of drivers of vehicles which do not meet the definitions found in Vehicle Code Sections 15210(a) and (b). Further, the restricted driving privilege sought to be preserved under Vehicle Code Section 13353.6 is not confined to the operation of vehicles which require a commercial license, or vehicles which, of necessity, are involved in commerce.... The restricted commercial licensee could legally drive his personal or other noncommercial vehicle solely in commuting to and from his employment, or in conjunction with the course and scope of his employment. No showing that the driver's employment requires the driver to operate a commercial vehicle is required to retain the commercial license. A similar benefit is not provided by statute to those holders of noncommercial licenses who must, of necessity, utilize their personal or other noncommercial vehicle in commuting to and from their employment or driving in the course and scope of their employment."

court. His complaint alleged that the administrative license suspension (1) violated his constitutional due process rights in that section 13558, subdivision (c)(1), precluded timely consideration of evidence bearing upon his guilt or innocence, and created a presumption of guilt; and (2) violated the equal protection clauses of the federal and state Constitutions and the prohibitions against special legislation set forth in the state Constitution, in that section 13353.6 grants certain commercial licensees preferential treatment over other licensees determined to have committed the identical offense. Peretto argued that the administrative per se scheme was invalid as to him and that the suspension of his license should be enjoined pending the adjudication of the criminal charges against him. ⁶

The trial court also concluded that section 13353.6 was not severable from the remaining portions of the administrative per se scheme, and directed the DMV to set aside its order suspending Peretto's license and to reinstate that license.

EQUAL PROTECTION

a. The Standard of Review

In analyzing the constitutionality of laws challenged under the equal protection clauses of the United States and California Constitutions, the standard of judicial review depends upon the interest affected and the classification involved. Where legislation does not impinge upon either a fundamental right or involve a suspect classification requiring strict scrutiny, that legislation is invested with a presumption of...