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Court of Appeal, First District, Division 1, California.

Richard Ambrose HOULIHAN, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of California, Defendant and Respondent.

Civ. 26413.

Decided: December 18, 1969

Goth, Dennis & Aaron, Redwood City, for appellant. Thomas C. Lynch, Atty. Gen., of California, Victor D. Sonenberg, Deputy Atty. Gen., San Francisco, for respondent.

This is an appeal from a judgment denying a petition for writ of mandate.

On April 29, 1968, the Department of Motor Vehicles (hereinafter the “Department”) issued an order suspending petitioner's driver's license for one year pursuant to Vehicle Code, section 13352, subdivision (c).1  This statute provides for a mandatory suspension for one year where the Department is in receipt of a certified abstract of the record of any court showing that a person has been convicted of driving a motor vehicle under the influence of intoxicating liquor twice within seven years.   Petitioner challenged this order by filing a petition for writ of mandate in San Mateo County directing the Department to restore his privilege to operate a motor vehicle.   The basis of this petition was that at the time petitioner suffered the first conviction he was not represented by counsel when he entered his plea of guilty.   The petition was denied.

In the two-year span of 1966 to 1968 petitioner was twice convicted of driving a motor vehicle while under the influence of intoxicating liquor.  (Violation of § 23102, subd. (a).)  The first conviction occurred in 1966 in the Municipal Court of Palm Springs;  the second in 1968 in the Municipal Court of the Central District of San Mateo County.   Subsequent to each of these convictions the Department received from the court duly certified abstracts of these convictions.

Adverting to the petition we observe that it alleges, in reliance upon In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, that the San Mateo court acted unlawfully in failing to consider whether petitioner had waived his right to be represented by counsel in the Palm Springs proceedings.   The record is silent, however, as to whether the San Mateo court was called upon to make this determination.2  In their briefs the parties appear to be in agreement that the matter of the alleged invalidity of the prior conviction was not presented to the San Mateo court.   It appears, moreover, that at the hearing before the superior court the questions presented were whether the Department was required to pass upon the constitutionality of the prior conviction and whether the superior court had jurisdiction to vacate or set aside prior convictions imposed by traffic courts.   Both of these questions were answered in the negative by the court below in its conclusions of law.   In making this determination the trial court did not indicate the basis for its conclusions.   Based upon respondent's points and authorities presented in the court below it appears that the decision is predicated upon the ground that a collateral attack could not be made upon the Palm Springs judgment.  (See Cook v. Bright, 208 Cal.App.2d 98, 101, 25 Cal.Rptr. 116.)

In approaching the issues presented we note two recent cases:  Mitchell v. Orr, 268 Cal.App.2d 813, 74 Cal.Rptr. 407, and De La Vigne v. Dept. of Motor Vehicles, 272 A.C.A. 914, 77 Cal.Rptr. 675.   In these cases the plaintiff was convicted of drunk driving in the municipal court.   That court, upon finding that prior drunk driving convictions were constitutionally invalid, ordered the department not to suspend the plaintiff's driving privileges.   The Director of the department, contrary to the court's order, suspended the driving privileges.   In a mandamus action the superior court granted a writ directing the department to refrain from such suspension.   The reviewing court held that the trial court acted properly upon the basis that the plaintiff had a right to have the constitutionality of his prior conviction determined in the municipal court trying him for the most recent drunk driving offense.3

 The instant case is distinguishable from Mitchell and De La Vigne in that here no attempt was made to have the validity of the prior conviction determined in the municipal court.   Moreover, although petitioner appears to assert that the Department was required to pass upon the constitutionality of the prior conviction the record does not indicate that any attempt was made by petitioner to have the Department make such a determination.   In any event, we are satisfied that the Department does not have jurisdiction to make such a determination and that the court below was correct in so holding.   In Hough v. McCarthy, 54 Cal.2d 273, 279–282, 5 Cal.Rptr. 668, 353 P.2d 276, it was held that section 13352 is mandatory with respect to the specific situations there referred to.  (See also Cook v. Bright, supra, 208 Cal.App.2d 98, 101, 103, 25 Cal.Rptr. 116.)   Accordingly, the duty to suspend is mandatory upon a second conviction within seven years.  (§ 13352, subd. (c);  Cook v. Bright, supra, at p. 101, 25 Cal.Rptr. 116.)  “The only precedent event required as a basis for action by the department is receipt by if of ‘a record’ of conviction.”  (Cook v. Bright, supra, at p. 101, 25 Cal.Rptr. at p. 119.)   In section 14101, subdivision (a) it is provided, moreover, that a person is not entitled to a hearing “Whenever the action by the department is made mandatory by the provisions of this code.”

In Escobedo v. State of California, 35 Cal.2d 870, 876–877, 222 P.2d 1, it was held that the suspension or revocation of a driver's license without a prior hearing does not violate due process where the action is justified by a compelling public interest.   In Hough, supra, it was held that such a public interest is demonstrated in drunk driving cases in view of the paramount social desire of combating the hazard to the safety of the public.  (54 Cal.2d at p. 285, 5 Cal.Rptr. 668, 353 P.2d 276;  see Cook v. Bright, supra, 208 Cal.App.2d at p. 103, 25 Cal.Rptr. 116.)

 The court below as in error, however, in concluding that it did not have jurisdiction in an action against the Department to vacate or set aside the prior convictions imposed by the traffic courts.   In section 14400 it is provided that “Nothing in this code shall be deemed to prevent a review or other action as may be permitted by the Constitution and laws of this State by a court of competent jurisdiction of any order of the department refusing, canceling, suspending, or revoking the privilege of a person to operate a motor vehicle.”   This section (formerly § 317) was held to be applicable in Escobedo, supra, where an automobile operator's license is properly suspended by the department without prior hearing.  (35 Cal.2d p. 877, 222 P.2d 1.)  (See Orr v. Superior Court, 71 A.C. 233, 237, 241, 77 Cal.Rptr. 816, 454 P.2d 712.)   Accordingly, the review contemplated in section 14400 can be had by application to the superior court by writ of mandate.  (Code Civ.Proc. §§ 1085, 1086;  Escodebo v. State of California, supra, 35 Cal.2d 870, 877, 222 P.2d 1.)

 In Orr v. Superior Court, supra, 71 A.C. 233, 77 Cal.Rptr. 816, 454 P.2d 712, the Supreme Court held that under the financial responsibility law (§ 16080) the determination by the Department of Motor Vehicles to suspend a license, upon the basis that there was a reasonable possibility that a judgment may be recovered against the driver, was subject to court review of the department's action.   In such action the driver alleging nonculpability is entitled to a review of the evidence submitted to the department so that the court can determine whether it supports the implied finding that a judgment for damages will be rendered against the driver.  (P. 241, 77 Cal.Rptr. 816, 454 P.2d 712.)   Upon analogy, the Department in the instant case has determined, because it had a mandatory duty to do so upon a receipt of the “record” of conviction, that petitioner had suffered two drunk driving convictions.   The Department's action is predicated upon a necessary determination, based upon these records, that the convictions are valid.   If the prior conviction is used for the purpose of suspending a driver's license the prior cannot be an invalid one.  (See Mitchell v. Orr, supra, 268 Cal.App.2d 813, 815, 74 Cal.Rptr. 407.)   Whether the prior conviction is in fact valid is subject to judicial review.  (See Mitchell v. Orr, supra, at p. 817, 74 Cal.Rptr. 407.)

 In People v. Coffey, 67 Cal.2d 204, 214–215, 60 Cal.Rptr. 457, 430 P.2d 15, the Supreme Court reiterating the principle established in In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, stated as follows:  “ * * * to the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations.  [Citations.]”  Accordingly, in the present case, in view of the allegations made in the instant proceeding, the superior court was required to determine the issue whether petitioner was represented by counsel at the time he suffered the first conviction, and, if he was not whether he waived the right to be so represented.  (People v. Coffey, supra, 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15.)   The fact that petitioner did not first go to the municipal court where the first conviction occurred 4 or that he did not urge the constitutional basis of his first conviction in the subsequent municipal court proceeding in which the prior was not charged does not preclude the raising of the issue as it has been raised in the present proceeding, since the petition for writ of mandate is an effective means of determining the validity of the prior and compelling proper action on the part of the Department if the prior conviction is found to be invalid.   (See De La Vigne v. Dept. of Motor Vehicles, supra, 272 A.C.A. 914, 920, 77 Cal.Rptr. 675.)

It is concluded that petitioner has the right to have the constitutionality of his first conviction for drunk driving determined by a court of law and to have such determination made by the court below.

The judgment is reversed with directions to the trial court to proceed subject to the principles set forth in this opinion.


1.   Unless otherwise indicated, all statutory references are to the Vehicle Code.

2.   It appears that the prior conviction was not charged in the San Mateo court in view of the penalty imposed.   The San Mateo court imposed a fine of $250 or 25 days in the county jail.   Section 23102 requires, upon a second conviction within seven years, a penalty of not less than 5 days in jail and a fine of not less than $250.   That section also provides that if probation is granted upon a second offense it must be a condition of probation that the person convicted be confined in jail for at least 5 days and that he pay a fine of at least $250.

3.   In Hasson v. Orr, 275 A.C.A. 1083, 80 Cal.Rptr. 329, Hasson sought to set aside the prior conviction in the municipal court in which he was convicted.   His motion was denied.   He did not appeal or seek a writ of mandate.   His driving privileges were then suspended by the department.   Hasson then sought mandate in the superior court commanding the director to vacate his order.   The superior court granted the writ but the judgment was reversed by the appellate court on the ground that municipal court determination was binding on the superior court in the mandamus action.   A hearing was granted by the Supreme Court on October 22, 1969.

4.   When a conviction has been secured in derogation of one's right to counsel, a motion to vacate judgment or a petition for writ of error coram nobis filed in the convicting court is an appropriate remedy.  (See People v. Shipman, 62 Cal.2d 226, 230–231, 42 Cal.Rptr. 1, 397 P.2d 993;  Ingram v. Justice Court, 69 Cal.2d 832, 843, 73 Cal.Rptr. 410, 447 P.2d 650.)

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.

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