Pollack v. Department of Motor Vehicles

• Decision Date: 21 March 1985
• Citation: 211 Cal.Rptr. 748,38 Cal.3d 367,696 P.2d 141
• Court: California Supreme Court
• Parties: , 696 P.2d 141 Bruce POLLACK, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. L.A. 31912.

Page 748

211 Cal.Rptr. 748

38 Cal.3d 367, 696 P.2d 141

Bruce POLLACK, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

L.A. 31912.

Supreme Court of California,

In Bank.

March 21, 1985.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Beth Lori Faber, Deputy Atty. Gen., for defendant and appellant.

William A. O'Malley, Dist. Atty., Contra Costa, and Gayle Elaine Graham, Deputy Dist. Atty., as amici curiae on behalf of defendant and appellant.

Michael R. Marrinan, San Diego, for plaintiff and respondent.

Lowell Sykes, Alaine Parry, San Francisco, Rasiel Gessler, Carmel and David W. Brown, Mountain View, as amici curiae on behalf of plaintiff and respondent.

GRODIN, Justice.

Once again we are called upon to interpret the ambiguous wording of a recently amended statute. In this case, the issue involves the meaning of certain language in Vehicle Code section 13352, ¹ as amended in 1981.

The Department of Motor Vehicles (DMV) appeals from a judgment setting aside its one-year suspension of Bruce Pollack's driving privileges pursuant to section 13352, subdivision (a)(3), following Pollack's second drunk driving conviction within five years. The sole issue is whether the DMV may suspend a license of a twice convicted drunk driving offender under section 13352, subdivision (a)(3), where the prior conviction is neither alleged nor proven in the second criminal proceeding. For the reasons which follow, we conclude it can and reverse the judgment.

Pollack was convicted of drunk driving on December 4, 1981, and again on September 9, 1982. The criminal complaint filed in the second offense did not allege the prior conviction nor was the fact of that conviction proven at trial. On November 23, 1982, the DMV suspended Pollack's license for a period of one year pursuant to section 13352, subdivision (a)(3), which requires the DMV to suspend the license of drivers convicted of any "violation of section 23152 punishable under section 23165." ²

Pollack does not contest the accuracy of the DMV's records or the legality of either of his convictions. He thus admits that he incurred two valid convictions for drunk driving within the applicable five-year period. Nonetheless, he argues that the DMV may not suspend his license under section 13352 because, in its 1981 amendments to that statute, the Legislature evidenced an intention to impose the "plead and prove" requirement pertinent to criminal proceedings upon the administrative processes of the DMV. Accepting this theory, the trial court directed the DMV to vacate its order suspending Pollack's driving privileges because of the failure to plead and prove his prior conviction at his second trial. On appeal, the DMV contends that it is statutorily required to suspend a license after a second conviction whether or not the prior conviction was proven during the second trial.

Section 23152 is the basic Vehicle Code provision prohibiting any person under the influence of alcohol or drugs from driving a motor vehicle. ³ Section 23152 and section 23165, the sentencing provision pertinent to a second offense, are contained in division 11 (Rules of the Road), chapter 12 (Public Offenses), which details the criminal penalties attendant upon violations of the driving laws. Section 13352, by contrast, is contained in division 6 which pertains to the DMV's issuance, renewal, suspension and revocation of drivers' licenses. Thus, in its present format, section 13352 instructs the DMV to regulate drivers' licenses by reference to specific provisions of the criminal statutes.

The fundamental principle of statutory interpretation is "the ascertainment of legislative intent so that the purpose of the law may be effectuated...." (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.) This principle requires us to determine the objective of the Legislature and to interpret the law so as to give effect to that objective even when such an interpretation appears to be at odds with conventional usage or the literal construction of the statutory language. (Younger, supra, at pp. 40-42, 127 Cal.Rptr. 122, 544 P.2d 1322; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049.)

In this instance, the disputed phrase, "violation of Section 23152 punishable under Section 23165," is ambiguous. It is a well-established principle in our law that, when a prior conviction is relied upon as a means of empowering a court to impose increased criminal penalties, the indictment or complaint must allege the prior conviction and, unless admitted, it must be proven. (Cavassa v. Off (1929) 206 Cal. 307, 313, 274 P. 523.) Thus, in light of the prosecutor's failure to allege and prove Pollack's prior conviction, he could not be subjected to sentencing under section 23165. For this reason, Pollack contends that he was not "punishable under Section 23165." Therefore, he argues, the literal terms of section 13352, subdivision (a)(3), do not apply to him.

The DMV argues, however, that section 13352 does not refer to the offender as being punishable under section 23165, but to the offense. Several California courts have construed the word "punishable" when used with reference to an offense to mean "may be punished" or "liable to be punished." (People v. Superior Court (1931) 116 Cal.App. 412, 415, 2 P.2d 843; People v. McCullin (1971) 19 Cal.App.3d 795, 799, 97 Cal.Rptr. 107.) In McCullin, the court interpreted the phrase "offense punishable by death" in former Penal Code section 1202b to mean "all offenses for which the statute authorizes the death penalty as a possible maximum punishment regardless of whether it is imposed in a particular case." (McCullin, supra, at pp. 798-799, 97 Cal.Rptr. 107, emphasis added.) ⁴ Thus, the DMV contends that section 13352 refers to offenses potentially punishable under section 23165 (i.e., second offenses of driving under the influence within five years of a prior offense) regardless of the punishment actually imposed.

Both interpretations are plausible. In a case where the statute's words are sufficiently flexible to admit of several constructions, it is appropriate to examine the legislative history in an attempt to discern the purpose of the statute. (See Friends of Mammoth, supra, 8 Cal.3d at pp. 259-262, 104 Cal.Rptr. 761, 502 P.2d 1049.)

Prior to the 1981 amendments, the Vehicle Code contained no separate sentencing statutes analogous to present sections 23160, 23165, 23170 and 23175. Rather, criminal sentences were set out in the statutes defining driving offenses. Former section 13352, therefore, made no reference to sentencing statutes, but instead provided that the DMV should suspend or revoke a driver's license upon receipt of an abstract of a record of any court showing a conviction for driving under the influence. Varying durations of suspension or revocation were specified for first, second, and subsequent convictions. The provisions of former section 13352 thus specified:

"(a) Upon a first ... conviction," driving privileges would be suspended for six months if the court so ordered;

"(c) Upon a second ... conviction," driving privileges would be suspended for not less than a year;

"(e) Upon a third or subsequent conviction," driving privileges would be revoked, not to be reinstated for a period of three years.

It was established under former section 13352 that the DMV was required to suspend a driver's privileges upon a second conviction regardless of whether the prior conviction had been alleged and proven at the second trial. (Cook v. Bright (1962) 208 Cal.App.2d 98, 25 Cal.Rptr. 116.) Thus, under the operation of former section 13352, a driver in Pollack's situation would clearly have suffered a suspension of driving privileges quite apart from whether the prosecutor chose to plead and prove the prior conviction. Pollack contends that by amending section 13352 in 1981, the Legislature evinced an intention to afford greater procedural protections to those convicted of driving under the influence than had prevailed under prior law. We cannot agree with this conclusion.

In 1981, the Legislature effected a comprehensive reorganization of the Vehicle Code. These 1981 amendments amended and reenacted most of the code provisions relating to driving under the influence of intoxicating liquor and drugs. This legislation was evidently prompted by increasing public concern over the problem of intoxicated drivers. (See generally Review of Selected 1981 Legislation (1982) 13 Pacific L.J. 787-799.) In general terms, the amended statutes made it more difficult to avoid a criminal conviction for the offense of driving under the influence and increased the criminal penalties to be imposed upon conviction. (Compare former § 23102, subd. (d).) The ability of the courts to avoid imposition of mandatory jail sentences and fines was restricted. (See §§ 23166, 23171, 23200, 23206.) In addition, more stringent mandatory probation provisions were imposed. (See §§ 23166, 23171, 23206.) Throughout these amendments, the Legislature's attempt to banish intoxicated drivers from our highways is obvious. It is difficult to reconcile this clear objective with the increased legislative solicitude for the driving privileges of twice-convicted drunk drivers which Pollack purports to discern in the 1981 amendment to section 13352.

Rather, another and more credible explanation illuminates the Legislature's intent in choosing this ambiguous wording. As originally introduced by Assemblywoman Moorhead on February 18, 1981, Assembly Bill No. 541 included new sections 23156 through 23160. These new sections mandated sentences for first and subsequent offenses of both section 23152 and section 23153 (driving under the influence and causing bodily injury). One feature of these sentencing provisions, as originally drafted, was that first...