Baldwin v. Department of Motor Vehicles (35 Cal. App. 4th 1630, 1995)

Opinion

CHIN, P. J.

The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent John Robert Baldwin’s petition for writ of mandamus, in which Baldwin sought to overturn the DMV’s order revoking his driver’s license. The DMV issued the order after receiving notice of Baldwin’s third conviction for driving under the influence of alcohol. The judgment directs the DMV to vacate its order and to issue Baldwin a restricted license in accordance with the order of the criminal court where Baldwin suffered his most recent conviction. The DMV contends that the superior court misapplied the relevant statutes in granting the writ. We agree, and therefore reverse the judgment.

Factual and Procedural Background

By letter dated September 13, 1993, the DMV informed Baldwin that it was revoking his driver’s license for three years, effective August 10, 1993. The letter explained that the DMV was acting under Vehicle Code section 13352, subdivision (a)(5), based on Baldwin’s three drunk driving convictions under section 23152, subdivision (a), within seven years. For purposes of this mandamus proceeding, Baldwin does not contest the validity of any of these convictions, and concedes that he is “a de facto third offender

Baldwin then filed a petition asking the superior court to issue a writ of mandamus directing the DMV to vacate its revocation order. In the petition, he alleged that he had been arraigned in municipal court on a charge of driving under the influence of alcohol (§ 23152, subd. (a)) with two prior convictions for that offense within seven years. He further alleged that the district attorney, with the municipal court’s approval, struck one of the alleged prior convictions from the complaint because “he could not prove [it] to be true.” Baldwin then pleaded guilty to the charge and admitted one prior conviction. The petition alleged that the municipal court later sentenced him “pursuant to . . . [s]ection 23165 and granted him probation and imposed terms of probation pursuant [to] . . . [section 23166, subdivision (b)], including an order that [his] driving privileges be restricted . . . .”

Based on these alleged facts, Baldwin asked the superior court to order the DMV to vacate the revocation order and to issue him a restricted license in accordance with the municipal court’s sentence. In support of his request, Baldwin argued that, because the municipal court sentenced him as a second time offender and ordered restriction of his license as a condition of probation, section 23166, subdivision (b)(3), precluded the DMV from revoking his license under section 13352, subdivision (a)(5). The DMV opposed the petition, arguing that the municipal court’s action did not alter the DMV’s mandatory duty under section 13352, subdivision (a)(5), to revoke Baldwin’s license upon receiving notice of his third conviction.

After hearing, the superior court granted the petition. It entered a judgment ordering issuance of a writ directing the DMV to vacate its revocation order and to issue Baldwin a restricted license “as ordered by” the municipal court. This timely appeal followed.

Discussion

In general, the punishment that a criminal court may impose for a conviction of driving under the influence of alcohol in violation of section 23152 depends on how many other convictions the driver has for that same offense. Section 23160 sets forth the punishments applicable to “. . . any person . . . convicted of a first violation of Section 23152 . . . .” Under section 23165, different punishments apply to a convicted drunk driver whose offense “occurred within seven years of a separate violation of Section ... 23152 .. . which resulted in a conviction ....’’ Section 23170 sets forth still another set of punishments applicable to a convicted drunk driver whose current offense “. . . occurred within seven years of two separate violations of Section . . .23152. . . which resulted in convictions . . . .” Sections 23161, 23166, and 23171 respectively enumerate conditions that a criminal court must impose if it grants probation to persons “punished under” sections 23160, 23165, or 23170.

Section 13352 sets forth the DMV’s duty to suspend or revoke the license of a driver who suffers a drunk driving conviction. It directs the DMV “. . . immediately [to] suspend or revoke, or record the court-administered suspension or revocation of, the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of a violation of Section 23152 . . . .” (§ 13352, subd. (a).) By reference to the criminal sentencing statutes, section 13352, subdivision (a), conditions the length of the suspension or revocation on the number of other convictions the driver has. The provisions applicable to second and third time offenders, respectively subdivisions (a)(3) and (a)(5), are as follows: “(3) Except as provided in Section 13352.5, upon a conviction or finding of a violation of Section 23152 punishable under Section 23165, the privilege shall be suspended for 18 months . . “(5) Upon a conviction or finding of a violation of Section 23152 punishable under Section 23170, the privilege shall be revoked for a period of three years. . . .” (§ 13352, subd. (a)(3), (a)(5).)

In Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367 [211 Cal.Rptr. 748, 696 P.2d 141] (Pollack), the Supreme Court considered the relationship between the criminal sentencing provisions applicable to drunk driving convictions and the DMV’s administrative duties under section 13352. In Pollack, the DMV had suspended Pollack’s license under section 13352, subdivision (a)(3), upon his second conviction within seven years, notwithstanding that the prior conviction was “neither alleged nor proven in the second criminal proceeding.” (Pollack, supra, 38 Cal.3d at p. 371.) Pollack argued that, because the prosecution in the criminal action failed to allege or prove the prior conviction, he was not “ ‘punishable under Section 23165’” as a second time offender within the meaning of section 13352, subdivision (a)(3), and the DMV could not treat him as such. (Pollack, supra, 38 Cal.3d at p. 373.) The court disagreed, finding “. . . that the ‘punishable under’ formulation was merely intended to provide a shorthand reference to drunk driving offenses, with and without prior convictions.” (Pollack, supra, 38 Cal.3d at p. 375.) In reaching this conclusion, the court determined from relevant legislative history that, in enacting section 13352, subdivision (a)(3), the Legislature intended to protect the public from repeat offenders by having license revocation “follow administratively from the record of convictions.” (Pollack, supra, 38 Cal.3d at p. 381, fn. omitted.) The court explained: “That concern would not be served by an interpretation of the statute which makes public protection dependent upon whether a prosecutor, in a criminal proceeding, chooses to plead and prove the prior offense.” (Ibid.) Thus, despite its reference to offenses “punishable under Section 23165,” section 13352, subdivision (a)(3), requires the DMV to suspend the license of a twice convicted drunk driver, even if the prior conviction is neither alleged nor proven in the criminal proceeding. (Pollack, supra, 38 Cal.3d at pp. 371, 377.)

Vary v. Forrest (1988) 201 Cal.App.3d 1506 [247 Cal.Rptr. 873] (Vary) further considers the relationship between criminal proceedings and the DMV’s administrative duties. In Vary, the DMV had revoked Vary’s license under section 13352, subdivision (a)(5), upon his third conviction. (Vary, supra, 201 Cal.App.3d at p. 1508.) Vary successfully argued in a criminal proceeding that the wording of the criminal statutes “. . . required he be sentenced under section 23165 which governs defendants with one prior conviction rather than under section 23170 which governs defendants with two prior convictions.” (Vary, supra, 201 Cal.App.3d at pp. 1508-1509, fn. omitted.) He then challenged the DMV’s revocation order, arguing that revocation under section 13352, subdivision (a)(5), was improper because he was not punishable as a third time offender under section 23170. (Vary, supra, 201 Cal.App.3d at pp. 1509-1510.) Applying Pollack, the court rejected Vary’s argument that “. . . sentencing considerations or restrictions in the underlying criminal case are relevant to the [DMV’s] duties to suspend or revoke under section 13352.” (Vary, supra, 201 Cal.App.3d at p. 1513.) The court explained: “The [DMV’s] duty . . . [under section 13352] is to suspend or revoke a license based on the fact of convictions, and not on how offenders can be, or are, sentenced in the criminal courts. We conclude section 13352’s reference to section 23170 is nothing more than shorthand for the directive that if an offender is convicted of three violations of stated sections in a period of five years, his license will be revoked for a period of three years.” (Vary, supra, 201 Cal.App.3d at p. 1513.)

We agree with the DMV that, under Pollack and Vary, the fact that the municipal court sentenced Baldwin in the criminal action as if he had only one prior conviction does not alter the DMV’s mandatory duty to treat him as a third time offender under section 13352, subdivision (a)(5). Despite the municipal court’s action, Baldwin was “punishable under section 23170” within the meaning of section 13352, subdivision (a)(5), because he suffered three convictions under section 23152 within seven years. Therefore, the DMV acted properly in revoking his driving privilege for three years.

Baldwin concedes the general rule under Pollack and Vary that the DMV “has a mandatory obligation to act on the fact of the number of convictions, regardless of the disposition of the criminal proceedings.” He further concedes that, if this rule applies in this case, then as “a de facto third offender, [he] had to have his license revoked under” subdivision (a)(5) of section 13352. However, he contends that the municipal court’s imposition of probation under section 23166 renders the general rule inapplicable. That section provides in relevant part: “If the court grants probation to any person punished under Section 23165, . . . the court shall impose as conditions of probation that the person be subject to either subdivision (a) or (b), as follows: [CR] . . . [^D (b) All of the following: [H . . . [