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

Bruce POLLACK, Petitioner and Respondent, v. STATE of California, DEPARTMENT OF MOTOR VEHICLES, Respondent and Appellant.

Civ. 28891.

Decided: March 22, 1984

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Beth Lori Faber, Deputy Atty. Gen., for respondent and appellant. Michael R. Marrinan, San Diego, for petitioner and respondent.

The Department of Motor Vehicles (DMV) appeals from a judgment setting aside its one-year suspension of granting Bruce Pollack's driving privileges pursuant to Vehicle Code 1 section 13352, subdivision (a)(3) following Pollack's second drunk driving conviction (§ 23152) within five years.   Our sole issue is whether DMV may suspend a license of a twice convicted drunk driving offender under section 13352, subdivision (a)(3), where the prior conviction is neither pleaded nor proved in the second criminal proceeding.   For the reasons which follow, we conclude it cannot and thus affirm the judgment.

Factual and Procedural Background

Pollack was convicted of drunk driving December 4, 1981 and convicted of a later offense September 9, 1982.   The criminal complaint filed in the second offense did not allege the prior conviction and the earlier conviction was not proved.   On November 23, 1982, DMV suspended Pollack's license for a period of one year pursuant to section 13352, subdivision (a)(3) which requires DMV to suspend the license of drivers convicted of any violation of section 23152 which is punishable under section 23165.

The trial court directed DMV to vacate its order suspending Pollack's driving privileges because the failure to either plead or prove his prior conviction prevented the second conviction from being one punishable under section 23165.


DMV contends it must suspend a license after a second conviction pursuant to section 13352, subdivision (a)(3) even though the validity of the earlier conviction was never pleaded nor proved during the proceedings leading to the second conviction.2  DMV argues section 13352, subdivision (a)(3) does not mandate actual punishment under section 23165,3 but only requires the driver be punishable as a second offender;  the “pleaded and proven” requirement applies only to criminal and not administrative penalties;  and, when the Legislature added the language in dispute, “punishable under Section 23165,” it specified the amendment was merely declaratory of existing law and, thus, no new requirement of pleading or proving the first conviction became necessary in order to suspend the license of an individual convicted twice of driving under the influence within five years.

 Section 13352, subdivision (a)(3) directs DMV to suspend an individual's privilege to operate a motor vehicle for one year if he/she has been convicted of violating section 23152 and is “punishable” under section 23165.   Granted, a person need not have been punished under section 23165;  however, he/she must be punishable under that section.   For, “punishable” means “may be punished” or “liable to be punished.”  (People v. McCullin, 19 Cal.App.3d 795, 799, 97 Cal.Rptr. 107, People v. Superior Court, 116 Cal.App. 412, 414, 2 P.2d 843.)

 To be punishable under section 23165, a person's prior conviction must be pleaded (alleged in the complaint) and proven (by the prosecution or admitted by defendant).   Section 23165 provides for increased penalties for those convicted of section 23152 within five years of a prior conviction of that offense.   Where a prior conviction is relied upon to empower the court to impose an increased penalty, the indictment or complaint must allege the prior conviction and it must be proved by competent evidence at trial unless admitted by defendant.  (People v. Jenkins, 13 Cal.3d 749, 756, 119 Cal.Rptr. 705, 532 P.2d 857;  People v. Ford, 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892;  Cavassa v. Off, 206 Cal. 307, 313, 274 P. 523;  People v. Coleman, 32 Cal.App.3d 853, 860–861, 108 Cal.Rptr. 573;  In re Harris, 80 Cal.App.2d 173, 176, 181 P.2d 433.)   Here, Pollack was not punishable under section 23165 because his prior conviction was neither alleged in the accusatory pleading nor admitted.

 Noting how the language “punishable under” is used throughout section 13352, DMV challenges our construction by arguing the language “punishable under” is merely a shorthand descriptive reference to the fact a suspension relates to either a first, second or a third-time offender.   DMV argues the pleading and proving requirement is criminal in nature and inapplicable here because the revocation or suspension of a driver's license under the California Drunk Driving Law is a measure taken to protect the public, civil in nature, and does not constitute punishment for a crime.   Additionally, DMV notes where there is an independent provision authorizing an agency to revoke a license under its civil statutory authority, neither the criminal punishment imposed nor the sentencing section utilized has any bearing on the agency's authority to act.   DMV's reasoning, however, is faulty, because an agency is clearly governed by the statutory scheme authorizing its conduct.   Here, section 13352, subdivision (a)(3) expressly requires as a condition precedent to its suspension, “a conviction or finding of a violation of Section 23152 punishable under Section 23165.” 4

 Stressing that before the statutory scheme was amended it was irrelevant to its authority to suspend whether the accusatory pleading alleged the first conviction, DMV finally contends the language of former section 13352 and the legislative history underlying the amendments show there was no intention to allow a repeat offender to avoid having his or her license suspended if the first conviction was not alleged or proved during the dispositive proceedings for the second offense.   Relying on uncodified section 45 of chapter 940, Statutes 1981,5 DMV argues since the amendment to section 13352, subdivision (a)(3) was not intended to alter its authority to impose a one-year suspension under these facts, the addition of the phrase in controversy did not add an additional requirement prior convictions be pleaded and proved.   We note, however, this legislative statement of intent to renumber previous code sections without change is limited to those sections renumbered “without substantive change.”  (Id., subd. (a).)  The applicable language which controls here, is a substantive change.

 Preliminarily, where statutory language is clear and unambiguous in character, there is no need for construction and courts should not indulge in it.  (In re Waters of Long Valley Creek Stream System, 25 Cal.3d 339, 348, 158 Cal.Rptr. 350, 599 P.2d 656;  Solberg v. Superior Court, 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   Although this rule of statutory construction is subject to an exception where the unambiguous literal meaning of the words within the statute is productive of absurd results or at least in effect contrary to the manifest intent of the Legislature in enacting the provision (County of Sacramento v. Hickman, 66 Cal.2d 841, 849, fn. 6, 59 Cal.Rptr. 609, 428 P.2d 593;  Silver v. Brown, 63 Cal.2d 841, 845, 48 Cal.Rptr. 609, 409 P.2d 689), this case falls outside the exception because our construction is not necessarily contrary to the underlying legislative intent to protect the public from drivers who repeatedly drive while intoxicated.   Further, it is not productive of an absurd result.   For, to the contrary, our construction provides a procedural safeguard for a second-time offender of section 23152 facing substantially increased terms of license suspensions, guaranteeing him/her procedural due process and the right to reasonably rely on the literal language facially appearing in section 13352.6


Judgment affirmed.


FN1. All statutory references are to the Vehicle Code unless otherwise specified..  FN1. All statutory references are to the Vehicle Code unless otherwise specified.

2.   Section 13352, subdivision (a)(3) provides:  “(a) The department shall, immediately suspend or revoke 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 or 23153, or upon receipt of a report of a judge of the juvenile court, a juvenile traffic hearing officer, or a referee of a juvenile court showing that the person has been found to have committed a violation of Section 23152 or 23153.   For the purposes of this section, suspension or revocation shall be 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 one year.   The privilege shall not be reinstated until the person gives proof of ability to respond in damages as defined in Section 16430.

3.   Section 23165 provides:  “If any person is convicted of a violation of Section 23152 and the offense occurred within five years of a prior offense which resulted in conviction of a violation of Section 23152 or 23153, or a prior offense which occurred on or after January 1, 1982, which resulted in a conviction of a violation of Section 23103 as specified in Section 23103.5, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred seventy-five dollars ($375) nor more than one thousand dollars ($1,000).   The person's privilege to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant to paragraph (3) of subdivision (a) of Section 13352.”

4.   DMV stresses it is advised only of the fact of the conviction and has no basis for determining the actual section used in sentencing the driver.   We find this consideration to be without weight, because the advisory procedure can be easily modified so as to provide for the additional ministerial and clerical act of designating the actual section employed in sentencing on the transferred, duly certified abstract of the judgment.

5.   Statutes 1981, chapter 940, section 45 provides:  “(a) The provisions of Sections 2, 6, 7 and 10 of the Vehicle Code expressly apply to the provisions of this act, and, further, for any recidivist of enhancement purposes, reference to an offense by section number is a reference to the provisions contained in that section, insofar as they are renumbered without substantive change, and those provisions shall be construed as restatements and continuations thereof and not as new enactments.“(b) Any reference in the provisions of the Vehicle Code to a prior offense of Section 23152 shall include a prior offense under Section 23102 or 23105, as those sections read prior to January 1, 1982.“(c) Any reference in the provisions of the Vehicle Code to a prior offense of Section 23153 shall include a prior offense under Section 23101 or 23106 as those sections read prior to January 1, 1982.“(d) The provisions of this section are declaratory of existing law.”

6.   In any event, the Legislature impliedly recognized failure to charge a prior would preclude the DMV from suspending one's license pursuant to section 13352, subdivision (a)(3), because section 23200, subdivision (a) as amended in 1981 expressly precludes a court from striking a charged prior in order to avoid not only imposing the minimum mandatory penalties, but also “for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in this code.”

WORK, Associate Justice.

WIENER, Acting P.J., and BUTLER, J., concur.

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