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

Ernest W. COLLINS, Jr., Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.


Decided: July 03, 1984

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Edward Hill, Eleanor Nisperos, Deputy Attys. Gen., San Francisco, for defendant and appellant. Charles W. Craycroft, Robert Acker, Palo Alto, for plaintiff and respondent.

The Department of Motor Vehicles (DMV) appeals from a judgment granting a peremptory writ of mandate and directing the cancellation of an order suspending respondent Ernest Collins' driver's license for six months pursuant to Vehicle Code section 13352, subdivision (a)(1).1


Respondent was charged with driving under the influence of intoxicating liquor in violation of former section 23102, subdivision (a), in mid-1981, and was convicted by a jury in April 1982.   He was fined and not placed on probation.   He had never been convicted of any other violation of the Vehicle Code.   The judgment in that action indicates that the trial court recommended that respondent's license not be suspended.   Nevertheless, in May 1982, the DMV suspended his driving privileges for six months pursuant to section 13352, subdivision (a)(1).

At the time of his offense, subdivision (a) of section 23102 prohibited driving under the influence, and subdivision (c) specified the punishment for a first conviction of the offense (fine or imprisonment in county jail or both).  (Stats.1980, ch. 1004, § 4, p. 3200.)   The version of section 13352 then in effect provided that upon receipt of an abstract of the record of a court showing a first conviction of driving under the influence, the DMV was required to suspend the person's driving privilege for six months if the court so ordered.  (Stats.1980, ch. 1004, § 1, pp. 3196–3197, emphasis added.)

In 1981 and 1982, the Legislature revised the laws relating to driving under the influence of alcohol and drugs.  (Stats.1981, ch. 940;  Stats.1982, ch. 53.)   Effective January 1, 1982, section 23102 was “amended and renumbered” as section 23152.  (Stats.1981, ch. 940, § 12, p. 3567.)   The punishment for a first conviction of violating section 23152 was set out in section 23160.   (Id., § 32, pp. 3571–3572.)   The version of section 23160 in effect in April 1982 when respondent was convicted required confinement in county jail for not less than 96 hours, and a fine of not less than $375.  (Stats.1982, ch. 53, § 29, p. 174.)

 Under the law in effect at the time of the offense, the trial court had broad discretion to grant probation and to prescribe reasonable conditions of probation.  (See Pen.Code, § 1203.1;  People v. Richards (1976) 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 552 P.2d 97.)   In contrast, the law at the time of respondent's sentencing circumscribed that discretion and mandated the imposition of certain conditions of probation.  (Cf. People v. Municipal Court (Hinton) (1983) 149 Cal.App.3d 951, 953–954, 197 Cal.Rptr. 204.)   In particular, the version of section 23161 then in effect provided in relevant part:  “If the court grants probation to any person punished under Section 23160 ․ the court shall impose as a condition of probation that the person be subject to one of the following:  (1) Be confined in the county jail for at least 48 hours but not more than six months and pay a fine of at least three hundred seventy-five dollars ․ but not more than five hundred dollars ․  [¶] (2) Pay a fine of at least three hundred seventy-five dollars ․ but not more than five hundred dollars ․ and have the privilege to operate a motor vehicle restricted for 90 days to necessary travel to and from that person's place of employment․”  (§ 23161, subd. (a);  Stats.1982, ch. 53, § 30, p. 174.)   In addition, in any county with a certified and approved driver improvement program or treatment program for habitual users of alcohol or drugs, the court was required to impose as a condition of probation participation and successful completion of either or both of the programs.  (§ 23161, subd. (b);  Stats.1982, ch. 53, § 30, p. 174.)   The term of probation for a first offender was to be at least three years.  (§ 23206, subd. (b).)

Section 13352 was amended in relevant part to require the department to suspend a driver's license for six months “[u]pon a conviction or finding of a violation of Section 23152 punishable under Section 23160 ․ if the court orders the department to suspend the privilege.”  (Stats.1981, ch. 940, § 5, p. 3563.)   Effective February 18, 1982, section 13352 was again amended to require a six-month's suspension either if the court so ordered “or if the court does not grant probation.”  (§ 13352, subd. (a)(1);  Stats.1982, ch. 53, § 16, p. 166.)

Therefore, at the time of respondent's offense, the DMV was required to suspend a first offender's license only if the court so ordered, whereas at the time of his conviction, the department was also required to suspend a first offender's license unless the court granted probation pursuant to section 23161.

Because the court did not impose probation, the DMV suspended respondent's license.   Respondent petitioned for a writ of mandate, arguing that the suspension was invalid on ex post facto and due process grounds.   The trial court granted the petition.   In its memorandum of decision, it reasoned:  (1) the DMV was authorized by section 13352, subdivision (a)(1), to suspend the license only of those persons “punishable under section 23160”;  (2) as section 23160 was not in existence at the time of appellant's offense, punishing him under that section would violate ex post facto principles;  (3) therefore, he was not “punishable under section 23160” and the DMV was without authority to suspend his license.


The DMV argues that the actual effect of amended section 13352 is prospective rather than retroactive, and that therefore its operation is valid.   In the alternative, the DMV argues that if application of the section to respondent is characterized as retroactive, that retroactivity offends no constitutional prohibitions.

 Initially, we must decide whether the Legislature intended that a conviction under former section 23102 constitutes a conviction under current section 23152.

Chapter 940 of Statutes 1981, which amended and renumbered section 23102 as 23152, and which also amended section 13352, effective January 1, 1982, also provided in section 45:  “(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 or 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.”

Section 45 of chapter 53 of Statutes 1982, which amended section 13352 effective February 18, 1982, contained language which was substantially identical.  Section 2, referred to in both of the above statutes, provides:  “The provisions of this code, insofar as they are substantially the same as existing provisions relating to the same subject matter, shall be construed as restatements and continuations thereof and not as new enactments.”   Former section 23102 and new section 23152 are obviously substantially the same in that both prohibit driving under the influence of alcohol or any drug, or under the combined influence of both.

All these provisions suggest that the Legislature generally intended references in that code to section 23152 to be references to former section 23102 wherever appropriate.   States are prohibited, however, from adopting ex post facto laws under the Constitutions of the United States (art. I, § 10, cl. 1) and the State of California (art. I, § 9).   The ex post facto clause bars imposition of a punishment which, after commission of the crime, was increased or made more burdensome.  (In re Stanworth (1982) 33 Cal.3d 176, 180, 187 Cal.Rptr. 783, 654 P.2d 1311.)   As section 23160 changed and increased the punishment for a first conviction of driving under the influence, sentencing respondent under that section for the offense committed prior to its enactment would have been constitutionally impermissible.

The DMV acknowledges that section 23160 was not and could not have been applied to respondent in the criminal proceedings against him.   Nevertheless, the DMV insists that section 13352, subdivision (a)(1), is applicable to respondent, and that in order to prevent the license suspension here, the court should have granted probation pursuant to, and subject to the conditions mandated by, section 23161.   Imposition of those conditions would not violate ex post facto principles, the DMV argues, because those conditions would not have been part of respondent's sentence and would not have constituted punishment for his crime.   In support of that theory, the DMV relies on cases which hold that the purpose of licensing statutes is to protect the public rather than to punish licensees, and that such statutes are not penal statutes subject to ex post facto prohibitions.  (See, e.g., Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 210, 4 Cal.Rptr. 396;  Murrill v. State Board of Accountancy (1950) 97 Cal.App.2d 709, 711–712, 218 P.2d 569;  Ellis v. Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753, 758–759, 125 P.2d 521.)   However, these and similar cases are of little assistance, as they do not involve a statutory scheme such as that at issue, in which the DMV's authority to suspend a license depends on whether or not the sentencing court has granted probation in the underlying criminal proceedings.

 The DMV's argument that granting probation pursuant to section 23161 would not violate ex post facto principles is unpersuasive.   In Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17, the Supreme Court held that a Florida statute altering the availability of “gain time for good conduct” was unconstitutional as an ex post facto law when applied to a defendant whose crime was committed before the statute's enactment.   The court rejected the argument that a law must impair a vested right to be ex post facto, and explained that for a criminal or penal law to violate the ex post facto clause, it must be retrospective, and must disadvantage the offender affected by it.  (Id., at p. 29, 101 S .Ct. at p. 964.)   What is critical, the court explained, is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the Legislature increases punishment beyond what was prescribed when the crime was committed.  “Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [ex post facto] Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.”  (Id., at pp. 30–31, fn. omitted, 101 S.Ct. at p. 965, fn. omitted.)   The question is whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence.  (Id., at p. 32, fn. 17, 101 S.Ct. at p. 966 fn. 17.)  “The tenor of Weaver seems unmistakable:  prejudicial changes in punishment enacted after commission of a crime are suspect on ex post facto grounds.”  (In re Stanworth, supra, 33 Cal.3d at p. 181, 187 Cal.Rptr. 783, 654 P.2d 1311.)

It is true that the granting of probation is an act of grace and clemency rather than a right given to a defendant.  (People v. Matranga (1969) 275 Cal.App.2d 328, 331–332, 80 Cal.Rptr. 313.)   Nevertheless, by limiting the trial court's discretion and attaching mandatory conditions such as 48 hours of jail confinement to the granting of probation, section 23161 made probation more onerous than it was under the law in effect on the date of respondent's offense.   The conditions under which probation would be granted were altered to respondent's detriment.   Accordingly, in light of Weaver, it is apparent that the court could not have granted probation as authorized by section 23161 without offending the ex post facto clause.2  (Cf. State v. Mendivil (1979) 121 Ariz. 600, 592 P.2d 1256 [Imposition of two years probation pursuant to amended statute prohibited by ex post facto law because under statute in effect when crime committed, defendant could not receive more than one year probation];  People v. Moon (1983) 125 Mich.App. 773, 337 N.W.2d 293 [five years probation with one year in jail violates ex post facto clause because when crime committed, statute authorized maximum of six months confinement as condition of probation].)

In sum, the DMV claims that it was authorized to suspend respondent's license under section 13352, subdivision (a)(1), because the trial court did not grant probation;  but the trial court could not have granted probation pursuant to section 23161 without violating ex post facto prohibitions.   If reasonably possible, we must construe statutes so as to avoid doubts as to their constitutionality.  (People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149.)   In Smith, for example, the court held that Proposition 8 applied only to crimes committed on or after its effective date, in part to avoid doubts as to the measure's constitutionality under the ex post facto clause.   Similarly, to avoid the ex post facto problems inherent in the statutory scheme which we have discussed, we conclude that the Legislature did not intend amended section 13352, subdivision (a)(1), to apply to individuals such as respondent, who were convicted of driving under the influence in violation of former section 23102, subdivision (a).3  The DMV was without authority to suspend respondent's license, and the petition for writ of mandate was properly granted.

Judgment is affirmed.


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

2.   In In re Nachnaber (1928) 89 Cal.App. 530, 265 P. 392, defendant argued that a new statute permitting a grant of probation conditioned on six months in jail violated ex post facto principles because when his offense occurred, the court had no statutory authority to order any confinement upon granting probation.   The appellate court rejected the argument, reasoning that defendant had been deprived of no substantial right to which he was entitled by law.  (Id., at pp. 533–535, 265 P. 392.)   In light of the Weaver court's statement that the presence or absence of an affirmative, enforceable right is not relevant in ex post facto analysis, however, it is apparent that Nachnaber is no longer good law.  (See Weaver v. Graham, supra, 450 U.S. at p. 30, 101 S.Ct. at p. 965.)

3.   We note that Division One of this district has reached a contrary result in Campbell v. Department of Motor Vehicles (1984) 155 Cal.App.3d 716, 202 Cal.Rptr. 324.

SCOTT, Associate Justice.

WHITE, P.J., and FEINBERG, J.*, concur.