UTTER v. ALEXIS

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Court of Appeal, First District, Division 2, California.

Angie Lee UTTER, Plaintiff and Respondent, v. ALEXIS, Defendant and Appellant.

A019575.

Decided: August 10, 1984

Dennis L. Woodman, Woodman & Woodman, Redwood City, for plaintiff and respondent. John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Harold W. Teasdale, Robert E. Murphy, Deputy Atty. Gen., San Francisco, for defendant and appellant.

The Director of the State Department of Motor Vehicles (appellant) appeals after the San Mateo Superior Court granted respondent Angie Lee Utter's petition for prohibition and ordered appellant to desist and refrain from suspending respondent's driver's license pursuant to Vehicle Code section 13352, subdivision (a)(1).1  We affirm the order of the superior court.

FACTS

On December 23, 1981, respondent was arrested for a violation of former Vehicle Code section 23102, subdivision (a) (driving under the influence of alcohol).   On January 5, 1982, a complaint was filed in Municipal Court charging respondent with violating former section 23102, subdivision (a).

On February 18, 1982, a legislative change occurred that is crucial to the sole issue addressed in this appeal.   On that date, section 13352, subdivision (a)(1), (as amended by Stats. 1982, ch. 53, § 16) became effective as emergency legislation.  (Stats. 1982, ch. 53, § 47, No. 2 Deering's Adv. Legis. Service, pp. 237, 258.)   The amended statute requires the DMV to suspend for six months the licenses of those convicted of their first offense of driving under the influence “if the court orders the department to suspend the privilege or if the court does not grant probation.”  (§ 13352, subd. (a)(1), italics added.) 2  By contrast, prior to the amendment a first time offender was subject to the six month suspension only if the court ordered the license suspended.  (Former § 13352, subd.(a).) 3

On March 10, 1982, respondent entered a plea of guilty to violation of section 23102, subdivision (a), and was fined $536.   The judge, apparently relying on the law as it existed at the time of the offense (December 1981), recommended that respondent's license not be suspended, but did not grant probation.   Thus, under the law as it existed at the time of the offense, the DMV was without authority to suspend respondent's license because the court did not order suspension (former § 13352, subd.(a));  under the current statutory scheme, however, the DMV would be required to suspend respondent's license since the court did not grant probation.  (§ 13352, subd.(a)(1).)   On April 12, 1982, the DMV issued an order suspending respondent's driver's license for a period of six months pursuant to the provisions of section 13352, subdivision (a)(1), as effective on February 18, 1982.   Respondent then filed a petition for mandate and prohibition in the superior court, arguing, inter alia, that application of current section 13352 to her case was invalid as an ex post facto application of the law and, alternatively, that the legislature intended the amended statute to apply prospectively only.   Subsequently, the petition was granted and the superior court issued a writ of prohibition ordering appellant to desist and refrain from suspending respondent's license.   This appeal followed.

DISCUSSION

Appellant contends (and respondent agrees) that the central issue in this case is whether the application of current section 13352 to respondent's case “constitutes an ex post facto or retroactive application of the law and thus a violation of the California and United States” constitutions.   We disagree that this is the dispositive issue.

Recent case law makes it clear that it is unnecessary to reach the constitutional issue presented by the parties.   In Johnson v. Alexis (1983) 143 Cal.App.3d 82, 191 Cal.Rptr. 529 the court considered an issue closely related to the one before us.   In Johnson the appellant (the Director of the Department of Motor Vehicles) argued that amendments to section 13352 effective January 1, 1981 applied to a defendant who was arrested for drunk driving before the effective date of the amendment but was convicted after that date.   Prior to the amendment at issue in Johnson, a defendant's license could be suspended for one year if he suffered two convictions within five years;  after the amendment, the one year suspension could be imposed if two offenses were committed within five years.   The respondent in Johnson was subject to the one year suspension under the new law, but was not subject to that suspension under the former law, since his convictions, as opposed to his offenses, occurred more than five years apart.   The respondent in Johnson had argued that application of the 1981 amendments to his case constituted application of an ex post facto law.   The court did not address this issue because it found that the legislature had not intended the amendment to apply retroactively to second offenses committed before the operative date of the amendment.   We believe that a similar approach and conclusion is here warranted.

 It is unnecessary to address the constitutional issue raised by the parties because “we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.”  (People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000).   Under rules of statutory construction, we conclude that the legislature did not intend that the 1983 amendments to section 13352, subdivision (a), be applied retroactively to offenses committed before the effective date of the amendment.

“It is settled that ‘a statute should not be given retroactive effect so as to deprive an individual of a pre-existing right unless the Legislature has clearly expressed its intention to accomplish that end.’ ”  (Johnson v. Alexis, supra, 143 Cal.App.3d at 85, 191 Cal.Rptr. 529, quoting Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 520, 143 Cal.Rptr. 247, 573 P.2d 465.)  (Italics in original).   In this case, as in Johnson, there is no clearly expressed intent to apply the amendment retroactively.  “As a general rule of construction, statutes are not to be given retroactive effect unless the intent of the Legislature cannot be otherwise satisfied.  [Citation.]  ‘The Legislature, of course, is well acquainted with this fundamental rule, and when it intends a statute to operate retroactively it uses clear language to accomplish that purpose.’ ”  (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629.)   Nothing in the statute before us and no extrinsic evidence indicates such an intent.4  Moreover, if anything, the amendment indicates that the legislature intended prospective application only:  The 1982 amendment provides that the DMV shall suspend the license of any person convicted of violating section 23152 of the Vehicle Code.  (§ 13352, subd. (a)(1).)   Respondent, however, was convicted under former section 23102, subdivision (a), which was superseded by section 23152.  (Stats. 1981, ch. 940, §§ 12, 13.)

Nor is there any doubt that retroactive application of the amendment would “deprive [respondent] of a pre-existing right.”  (Henrioulle v. Marin Venturers, Inc., supra, 20 Cal.3d 512, 520, 143 Cal.Rptr. 247, 573 P.2d 465.)   It deprives respondent of the right she had to continue her licensed driving unless, after a first conviction for driving under the influence, the judge specifically ordered the DMV to suspend her license.  (Mackey v. Montrym (1979) 443 U.S. 1, 10, 99 S.Ct. 2612, 2616, 61 L.Ed.2d 321, Johnson v. Alexis, supra, 143 Cal.App.3d 82, 191 Cal.Rptr. 529.)

 Thus, under the rule of Henrioulle, supra, we find that retroactive application of the 1982 amendment to section 13352, subdivision (a) [enacting subdivision (a)(1) ] would deprive respondent of a pre-existing right, and, since the legislature has not clearly expressed its intention to that end, such retroactive application would be improper in this case.   Additionally, we note that although respondent was convicted after the effective date of the amendments, for the purposes of determining whether a statute has been applied retroactively in a case such as this, it is the date of the offense, not of conviction, that is crucial.  (Johnson v. Alexis, supra, 143 Cal.App.3d at 86, fn. 3, 191 Cal.Rptr. 529.)

We note also that applying the amendment retroactively would be inequitable under the circumstances of this case.   The judge clearly intended that appellant's license not be suspended.   Because the judge was unaware of the change in statutory law which had become effective as emergency legislation just three weeks before appellant was convicted and sentenced, he did not even consider imposing probation, as required to preclude suspension under the current version of section 13352.   Had the judge been aware of this requirement, and believed, as appellant unsuccessfully asserts, that the requirement applied retroactively, he would in all likelihood have granted probation;  alternatively, had respondent been made aware that she would have to suffer probation in order to avoid suspension, she may not have plead guilty.   Equity requires that we give effect to the judge's intent in this case.

Finally, we are cognizant that another division of this court has recently reached a result contrary to that we reach here.   In Campbell v. Department of Motor Vehicles (1984) 155 Cal.App.3d 716, 202 Cal.Rptr. 324, the court held that the February 18, 1982 amendment to section 13352 could be applied retroactively to a defendant who was convicted before the effective date of the amendment.   The only issue addressed in Campbell, however, was whether section 13352 was a “penal” provision for the purpose of ex post facto analysis.   The Campbell court did not examine what we conceive to be the critical threshold question;  that is, whether the Legislature intended that the amendment to section 13352 apply retroactively.   The Campbell court simply assumed, without discussion, that the Legislature intended the amendment to apply retroactively.   Since, for the reasons earlier set forth, we do not share this assumption, we decline to follow Campbell.

The judgment is affirmed.

FOOTNOTES

1.   Subsequent statutory references are to the Vehicle Code unless otherwise noted.

2.   Section 13352 provides in pertient part:“(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 subdivision (a) of Section 23109, 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 of 23153 or subdivision (a) of Section 23109.   For the purposes of this section, suspension or revocation shall be as follows:“(1) Upon a conviction or finding of a violation of Section 23152 punishable under Section 23160, the privilege shall be suspended for a period of six months if the court orders the department to suspend the privilege or if the court does not grant probation.

3.   Former section 13352 (as in effect on December 23, 1981) provided in pertinent part:“The department shall, except for a conviction or finding described in subdivision (a) where the court does not order the department to suspend, 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 driving a motor vehicle while under the influence of intoxicating liquor or any drug ․  The suspension or revocation shall be as follows:“(a) Upon a first such conviction or finding, other than under Section 23101 or 23106 such privilege shall be suspended for a period of six months, if the court orders the department to suspend such privilege.”   (Italics added.)

4.   Appellant points to the language in section 13352, subdivision (a) providing that suspension shall occur “[u]pon ․ conviction” as evidence of the Legislature's intent to apply the amendment retroactively to those who are arrested before the effective date of the amendment, but are convicted after that date.   This language, however, cannot be read to indicate an intent to apply the amendment retroactively, since the penalties provided by the amendment, like all penalties, cannot be imposed until conviction.   Thus, the language does not indicate a retroactive effect, but merely the essential prerequisite to the imposition of penalties;  vis., conviction.   When the Legislature intends a measure to operate retroactively, it uses clear language to accomplish that purpose.  (Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629.)   Such “clear language” is not present in section 13352.

KLINE, Presiding Justice.

ROUSE and SMITH, JJ., concur.

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