Smith v. Department of Motor Vehicles

• Decision Date: 31 December 1984
• Citation: 209 Cal.Rptr. 283,163 Cal.App.3d 321
• Court: California Court of Appeals Court of Appeals
• Parties: Kent Eric SMITH, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. A025292.

Page 283

209 Cal.Rptr. 283

163 Cal.App.3d 321

Kent Eric SMITH, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

A025292.

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

Dec. 31, 1984.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Harold W. Teasdale and Victor D. Sonenberg, Deputy Attys. Gen., San Francisco, for defendant and appellant.

Denise M. Nolan, Kleebauer & Nolan, Oakland, for plaintiff and respondent.

BARRY-DEAL, Associate Justice.

The Department of Motor Vehicles of the State of California (DMV) appeals from a judgment in favor of Kent Eric Smith (Smith) granting a peremptory writ of mandate directing the DMV to reinstate Smith's class 1 or 2 (truck and bus) driver's license. At issue is a DMV regulation which purportedly provides that persons with diabetes requiring insulin to control the condition may not be granted class 1 or 2 drivers' licenses.

DMV argues that under California statutes and regulations persons with insulin-controlled diabetes are absolutely barred from class 1 or 2 licensure. We do not read the code provisions so narrowly. We find that there are several statutory exceptions to the rule in question which, depending on the facts of each individual case, may permit the class 1 or 2 driving privilege to be extended to an insulin-controlled diabetic. We find that Smith has made a showing bringing himself within these exceptions. Accordingly, we do not reach the question whether an absolute bar from class 1 or 2 licensure would be constitutional, and we affirm the judgment.

Evidence at the Administrative Hearing

On July 2, 1982, a formal hearing was held before the DMV (Mr. H. Sanders, referee), to determine whether Smith could properly retain his class 1 or 2 driver's license. (Under Vehicle Code section 12804, drivers' licenses are divided into four classes. In essence, a class 1 or 2 license permits driving of trucks and buses, while class 3 and 4 licenses are for automobiles and motorcycles.) Smith, who waived his right to an attorney, testified to and presented documentary evidence of the following facts.

Smith was born on April 23, 1943, and was diagnosed as having diabetes in 1953. He injects 35 units of insulin per day, tests his urine daily, and sees his doctor about every six to eight months. His diabetes is so well controlled that it cannot be detected by blood or urine tests. Smith, who is 5 feet 9 inches tall and weighs 160 pounds, is fit enough to race bicycles, and he has never had dizzy or fainting spells.

One of Smith's physicians stated, "... you are in excellent health and free of infectious disease. Your diabetes has been well-controlled and you have shown a high level of responsibility for your good health."

Smith has been driving for 20 years, 7 in California, and drives a total of about 1,000 miles a month (business and pleasure). He testified to having been involved in three minor traffic accidents. ¹ He received one speeding ticket in May 1981. At the time of the hearing he had no tickets pending.

Smith supports his wife and five children by working as a garbage collector for Orinda-Moraga Disposal Service. He drives a garbage truck to the dump every other day, taking turns with other drivers, that trip being about 30 miles. He therefore drives about 75 miles per week or 300 miles per month on the job.

Smith suffers from diabetic retinopathy in both eyes and is blind in his right eye. Dr. Verne, a specialist in diseases of the retina, found that no restrictions on Smith's activities were necessary and that "... the visual acuity in his left eye is stable and the prognosis is good."

On September 1, 1982, Smith was given an "extensive" driving test which included residential, business, and freeway driving. The results were stated to be satisfactory, in that Smith controlled the vehicle in a "reasonable manner and showed good compensation for the loss of his right eye."

Smith testified that he needs a class 2 license to keep his job.

Upon this evidence the DMV determined that Smith did not meet the physical requirements for a class 1 or 2 driver's license and ordered him to surrender that license. He was permitted to keep a class 3 or 4 license.

Smith sought judicial review of the administrative decision pursuant to Code of Civil Procedure section 1094.5, and the superior court ordered reinstatement of his class 1 and 2 license. This appeal by the DMV followed.

Discussion

The conflict which we are called upon to resolve in this case is whether, as maintained by the DMV, an applicant's insulin-controlled diabetes automatically disqualifies the applicant from obtaining a class 1 or 2 license, or whether, as urged by Smith, the determination of whether to issue a license to such person must be made on a case-by-case factual basis. Our review of the statutes and regulations in question convinces us that Smith's position is correct.

Vehicle Code section 12804, subdivision (a), establishes the requirements for the testing of applicants for drivers' licenses. An applicant for a class 1 or 2 license is required to have a medical examination within two years of application. The medical report "shall be on a form approved by the department [DMV] or by the Federal Highway Administration or the Federal Aviation Administration. In establishing the requirements, consideration may be given to the standards presently required of motor carrier drivers by the Federal Highway Administration of the United States Department of Transportation...." (Veh.Code, § 12804, subd. (a).)

The basis for the DMV's position is found in title 13 of the California Administrative Code, section 100.10. ² It states, "The minimum medical requirements for a Class 1 or 2 license required by Section 12804(a) of the Vehicle Code shall be those standards required of motor carrier drivers by the Federal Highway Administration of the Department of Transportation as set forth in the Federal Motor Carrier Safety Regulations. (49-CFR 391.41)"

49 Code of Federal Regulations, section 391.41 (1983), ³ provides in part: "(b) A person is physically qualified to drive a motor vehicle if that person ... (3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control; ..." 49 Code of Federal Regulations, section 391.43, contains instructions to the examining physicians and states, "Diabetes. If insulin is necessary to control a diabetic condition, the driver is not qualified to operate a motor vehicle. If mild diabetes is noted at the time of examination and it is stabilized by use of a hypoglycemic drug and a diet that can be obtained while the driver is on duty, it should not be considered disqualifying. However, the driver must remain under adequate medical supervision." Section 391.49 provides for waiver of certain physical disqualifications, but not for diabetes.

Thus, under the federal regulations, drivers who are subject to the regulations in part 391 of the Federal Motor Carrier Safety Regulations cannot be licensed if they have insulin-controlled diabetes. However, not all truck drivers are subject to those regulations. Those who drive only in " 'intracity operation[s],' " that is, within municipalities and their "commercial zones," are exempt (unless they carry hazardous materials). (49 C.F.R. §§ 390.16, 390.33(a) A3.)

We hold that California Administrative Code, title 13, section 100.10, in adopting 49 Code of Federal Regulations, section 391.41, also adopted the federal exemptions to that regulation. Therefore, upon any subsequent review of Smith's class 1 or 2 driving privilege, the trier of fact must determine whether his driving is an " 'exempt intracity operation' " within 49 Code of Federal Regulations, sections 390.16, 390.33, 1048.101. If it is, and he meets the other qualifications, he will be entitled to a class 1 or 2 license, which at least permits him to drive as required in his current employment.

Even if Smith does not come within the federal intracity exemption, the department's regulations contain other exceptions which apply in his case. California Administrative Code section 100.11 provides that if the examining physician elects not to issue a medical certificate, the DMV may do so, qualifying the applicant for a class 1 or 2 license "other than engaging in interstate commerce" if (a) the DMV determines that the applicant meets the requirements of 49 Code of Federal Regulations, section 391.41, or (b) the applicant does not meet the federal standards because of a physical condition where driver ability can be determined by driving examination and the DMV finds the applicant has compensated for the defect, or (c) where the applicant fails to meet federal standards "because of a condition or conditions other than those wherein safe driving ability can be determined by a driving examination, if the applicant is renewing a California Class 1 or 2 license, or is applying for a medical certificate to keep valid such a license that has not yet expired, provided that the department determines upon evaluation of competent medical evidence that the condition or conditions have not affected his [or her] ability to drive safely and may reasonably be expected not to affect his [or her] ability to drive safely within two (2) years."

Thus, the Attorney General's argument notwithstanding, the DMV itself has recognized that in some cases applicants may be able to show that they are capable of driving safely despite their medical conditions which would disqualify them under the federal standards.

Furthermore, the Legislature itself has stated in clear language that the DMV has discretion to license an applicant who has overcome a medical problem. Vehicle Code section 12804, subdivision (a), immediately after the language quoted above permitting consideration of federal standards, provides, "Any physical defect of the applicant, which, in the opinion...