Robertson v. Department of Motor Vehicles

• Citation: 9 Cal.Rptr.2d 319,7 Cal.App.4th 938
• Decision Date: 25 June 1992
• Docket Number: No. A054047,A054047
• Court: California Court of Appeals
• Parties: Larry ROBERTSON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 319

9 Cal.Rptr.2d 319

7 Cal.App.4th 938

Larry ROBERTSON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. A054047.

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

June 25, 1992.

Daniel E. Lungren, Atty. Gen., Jose R. Guerrero, Supervising Deputy Atty. Gen., Kim M. Settles, Deputy Atty. Gen., Oakland, Cal., for defendant and appellant.

Kent A. Russel, Russell and Russell, San Francisco, for plaintiff and respondent.

MERRILL, Associate Justice.

This case raises the issue of whether there is a conflict in the drunk driving provisions of the Vehicle Code ¹ between recently enacted administrative per se laws mandating the suspension of driving privileges of second offenders for a period of one year (§§ 13353.2 and 13353.3, subd. (b)(2)) and preexisting second-offender probation statutes providing for a restricted driver's license (§§ 23165, 23166, 13352, subd. (a)(3), and 13352.5, subd. (a)). Contending that there is such a conflict, Larry Robertson petitioned the superior court for a writ of mandate to set aside an order of the Department of Motor Vehicles (DMV) suspending his driver's license for one year. The petition was granted. The DMV appeals from the superior court judgment granting the petition. We reverse the judgment and direct the superior court to deny the petition.

STATUS OF THE LAW

Prior to 1990, a person's privilege to operate a motor vehicle could be suspended or revoked if he or she was convicted of driving while under the influence of an alcoholic beverage, any drug, or both; driving with an excessive blood-alcohol concentration or driving while addicted; or if the person refused to submit to chemical testing of his or her blood, breath, or urine after arrest for these offenses. (§§ 23152, 23153 and 13353.) The period of the suspension or revocation was enhanced if the person had suffered prior convictions for the same offenses, involving separate incidents, within the previous seven-year period. (§ 13352.) The actual act of license suspension or revocation was generally carried out by the DMV upon receipt of a duly certified abstract of judgment from a court; or, in the case where the person refused to submit to chemical testing, upon receipt of the arresting officer's sworn statement that the officer had reasonable cause to believe that the person was driving while under the influence of alcohol or drugs and that he or she refused to submit to a chemical test. (§§ 13352 and 13353.)

As specifically pertains to second offenders, a period of suspension of 18 months was prescribed by sections 23165 and 13352, subdivision (a)(3), unless the court granted probation with conditions as outlined by section 23166, subdivision (b). When probation was granted with the requisite conditions, the second offender's In 1990 the situation effectively changed. While the statutory scheme outlined above essentially remained intact, another series of provisions was added to the drunk driving statutes. Principal among these provisions is section 13353.2 which mandates that the DMV "immediately" suspend the driving privilege of anyone who is found to have operated a vehicle while his or her blood-alcohol level was .10 percent or more. ² Under this statute, once a driver is pulled over by a police officer and arrested for drunk driving on the basis of blood-alcohol findings, the DMV is now required to immediately serve notice on the driver that his or her driver's license is administratively suspended. No longer is license suspension dependent on the ultimate conviction of the driver.

driving privileges were restricted rather than suspended. He or she was restricted to necessary travel to and from his or her place of employment, to and from a drug treatment program, and if driving a motor vehicle was necessary to perform the duties of his or her employment, driving within his or her scope of employment. The granting of probation pursuant to section 23166, subdivision (b), actually precluded the DMV from suspending the second offender's driving privileges on the basis of his conviction. (§ 13352.5, subd. (a).)

In keeping with section 13353.2, other key provisions in the newly enacted laws, commonly referred to as the administrative per se laws, are aimed at safeguarding the driver's rights of due process. Once it has been determined that the driver has a blood-alcohol level in excess of the legal limit, the arresting officer or the DMV must serve the driver with a notice of order of administrative 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. (§§ 13353.2, subds. (b) and (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, subds. (a), (d), 13353.3, subd. (a), 13557.) Where a hearing is requested in a timely fashion, it must be held before the effective date of the order of suspension. (§ 13558, subd. (d).) Issues to be decided at the hearing are limited to whether the officer had reasonable cause to believe the driver had been driving the vehicle in violation of section 23152 or 23153; whether the driver was placed under arrest; and whether the driver was driving or in actual control of a motor vehicle when he or she had .10 (now .08) percent or more, by weight, of alcohol in his or her blood. (§§ 13558, subds. (a) and (c)(2); 14100 et seq.) The DMV's determination is subject to a petition for judicial review. (§ 13559.) ³

The periods of suspension occasioned by a section 13353.2 finding are set forth in section 13353.3. As with the preexisting criminal statutes, there is an enhancement for repeat offenders. ⁴ Under section 13353.3, subdivision (b), the driving privileges of people in this category are administratively suspended for a full year. The driving privileges of first-time offenders, meanwhile, are suspended for four months.

As a consequence we have two processes which are generally triggered when a driver is detained for drunk driving. One involves court proceedings and is criminal in nature; the other involves administrative proceedings and is civil in nature. How the two processes interrelate is the issue to be resolved in this appeal.

FACTUAL AND PROCEDURAL HISTORY

On August 31, 1990, petitioner in this case, Robertson, was arrested by a California Highway Patrol officer for drunk driving. A chemical test revealed a blood-alcohol content of .14 percent. The record indicates that Robertson was served the same day with an administrative per se order of suspension.

Thereafter, a misdemeanor complaint was filed in municipal court charging Robertson with one count of driving while intoxicated (§ 23152, subd. (a)) and one count of driving with a blood-alcohol content in excess of .08 percent (§ 23152, subd. (b)). Additionally, it was alleged that he had suffered a conviction under the same statute in 1984. Representing himself at trial, Robertson pled guilty to the second count of driving with a blood-alcohol content in excess of .08 percent and admitted the prior conviction. The municipal court then placed him on probation with conditions applicable to a second offender pursuant to sections 23165 and 23166, subdivision (b). These conditions included payment of a fine, confinement in the county jail and attendance at a drinking driver's program (DDP). The court further restricted Robertson's driver's license for 18 months to travel to and from work, to and from jail, and to and from the DDP.

Subsequent to the criminal proceedings, a hearing was held at the DMV on the administrative per se order of suspension. Here, Robertson was represented by counsel. He stipulated to the lawfulness of the arrest and to a blood-alcohol content of .08 percent or higher. Nevertheless, he opposed suspension of his license based on an alleged conflict between the recently enacted administrative per se laws mandating a one-year suspension for second offenders and preexisting second-offender probation statutes. Robertson maintained that since the Legislature had left the probation statutes on the books, these statutes should govern in case of any conflict. He claimed that his plea of guilty in the criminal proceedings was part of a plea bargain and that he was told that his driving privilege would be restricted only. For the DMV to order suspension now, he argued, would violate his rights of due process. Robertson argued that suspension would make it impossible for him to comply with that part of the court's order requiring him to appear at the county jail and to attend a drug treatment program. He maintained that an order of suspension would be an infringement on the trial court's discretion in issuing its order of probation and, hence, a violation of the doctrine of the separation of powers. Finally, Robertson claimed that suspension would deprive him of his livelihood since he was a traveling salesman.

Following this, the DMV hearing officer issued his decision upholding the order of suspension. As part of that decision, he made the requisite findings under the law: that the police officer who arrested Robertson had had reasonable cause to believe that Robertson was driving under the influence of alcohol; that the arrest was lawful; and that Robertson had been driving with a blood-alcohol content of over .08 percent. On the basis of these findings, the hearing officer held that the per se order of suspension was both proper and mandated.

Thereafter, Robertson filed the instant petition for a writ of mandate with the superior court and an application for an immediate stay of the DMV decision. The application for the stay was granted...