LARSEN v. DEPARTMENT OF MOTOR VEHICLES (1994)

OPINION

The question presented here affects numerous California motorists and has divided the Court of Appeal:  May a citizen faced with suspension of the privilege to drive challenge the constitutionality of an out-of-state conviction via mandamus against the Department of Motor Vehicles (DMV), or are successful challenges to the conviction in a foreign forum or subsequent California prosecution the only available remedies?   Because a matter of federal constitutional concern is involved, when there is no other California procedure available, we believe the superior court must provide a forum to resolve attacks on invalid convictions and prevent their use by the DMV.

I

Vehicle Code section 13352, subdivision (a) provides the DMV “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 [driving under the influence].”   Subdivision (a)(1) (in combination with sections 23160 and 23161) allows for the substitution of a restricted license for certain first offenders granted probation.   Subdivision (d) requires like treatment for persons convicted of similar offenses in other states.   Second offenders receive harsher treatment.  (Veh.Code, § 23165;  cf. § 13352.5, subd. (g).)

Charles Larsen was convicted in New York of driving while impaired, and DMV suspended his license for six months accordingly.¹  He petitioned the superior court in mandamus, alleging the conviction was unconstitutional under Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.²  Following one line of appellate authority, the superior court apparently denied the writ because the DMV is not authorized to assess the constitutionality of out-of-state convictions and administrative suspensions of drivers licenses are not punitive in nature.

II

 We begin our analysis with Axness v. Superior Court (1988) 206 Cal.App.3d 1489, 255 Cal.Rptr. 896.   Axness' license was suspended for eighteen months for a second conviction, this one in Minnesota, of driving under the influence.   After he unsuccessfully sought relief in that state, the Court of Appeal held he could challenge the constitutionality of the Minnesota conviction by a proceeding in mandamus against the DMV.

 As here, the DMV argued mandamus should not lie “because it has neither the duty nor the power to invalidate a judgment of conviction.” ³  (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1493, 255 Cal.Rptr. 896.)   The court acknowledged a line of cases supporting that conclusion with respect to California convictions (although not that rationale necessarily).  (Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858;  Fitch v. Justice Court (1972) 24 Cal.App.3d 492, 495, 101 Cal.Rptr. 227;  Houlihan v. Department of Motor Vehicles (1970) 3 Cal.App.3d 915, 919–920, 83 Cal.Rptr. 885;  Williams v. Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 952–954, 83 Cal.Rptr. 76.)   Generally, mandamus will lie against the DMV only to prevent it from acting on a conviction void on its face.  (Houlihan, supra, 3 Cal.App.3d at p. 919, fn. 4, 83 Cal.Rptr. 885;  Williams, supra, 2 Cal.App.3d at p. 954, 83 Cal.Rptr. 76.)   In the usual case, mandamus will only lie against the rendering court.⁴  (Thomas, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858.  Fitch, supra, 24 Cal.App.3d at p. 495, 101 Cal.Rptr. 227.)

But, according to Axness, out-of-state convictions are not the usual case for the obvious reason that “mandamus against the rendering court is unavailable in California.” (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1494, 255 Cal.Rptr. 896.) Pointing out that Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265, 268, 109 Cal.Rptr. 104 approved mandamus to enforce an out-of-state order declaring a conviction unconstitutional and that apparently no court had yet tackled the question of whether such a writ could issue when relief had been denied in the foreign form, the Court of Appeal determined, “before the department may suspend his California driving privileges on the basis of an out-of-state conviction he must be allowed to challenge the constitutionality of that conviction in a California court.” (Axness, supra, 206 Cal.App.3d at pp. 1494-1495, 244 Cal.Rptr. 896.)

The court reasoned from precedent.   In People v. Coffey (1967) 67 Cal.2d 204, 214–215, 60 Cal.Rptr. 457, 430 P.2d 15, the Supreme Court held that where “penal consequences” might be suffered in this state, collateral constitutional challenges to out-of-state convictions must be permitted in California courts even though those convictions may have survived attacks in the rendering states.   And “[s]uspension of a driver's license is a ‘sanction’ within the meaning of this passage from People v. Coffey.  (Ganyo v. Municipal Court [1978] 80 Cal.App.3d [522, 525–526, 145 Cal.Rptr. 636];  Mitchell v. Orr (1969) 268 Cal.App.2d 813, 817 [74 Cal.Rptr. 407].)”  (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1495, 255 Cal.Rptr. 896.)

Axness noted that while the DMV had no duty to determine the constitutionality of foreign convictions, section 1085 of the Code of Civil Procedure provides mandamus relief “to insure the enjoyment of rights,” as well as compel performance of some duty.  (Axness v. Superior Court, supra, 206 Cal.App.3d at pp. 1495–1496, 255 Cal.Rptr. 896.)   Also, mandamus must issue “ ‘where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’  (Code Civ.Proc., § 1086.)”  (Id. at p. 1496, 255 Cal.Rptr. 896.)   The court added, “a driver who leaves California does not leave behind his federal constitutional rights.  (Cf. Sterling v. Constantin (1932) 287 U.S. 378, 398 [53 S.Ct. 190, 195, 77 L.Ed. 375, 385] [there is no ‘avenue of escape from the paramount authority of the Federal Constitution’].)”  (Ibid.)

Axness has been questioned in subsequent decisions in dicta, but this case is the first to present a closely parallel fact pattern.   In Romo v. Department [of] Motor Vehicles (1991) 229 Cal.App.3d 251, 280 Cal.Rptr. 33, the out-of-state prior preceded two California convictions.   Because it was subject to various procedures to test its constitutionality in this state's courts, the Court of Appeal determined Romo was not entitled to relief via mandamus against the DMV. (Id. at p. 257, 280 Cal.Rptr. 33.)   While correctly determining Axness was distinguishable, the court used unnecessarily broad language:  “Holding that mandamus against the DMV is not an appropriate way to proceed does not preclude a challenge.   It simply reaffirms the basic principle that a writ will not issue against a respondent who does not have the legal authority to perform the requested act.”  (Ibid.)  This conclusion, of course, overlooks the underpinnings of the Axness holding, particularly its federal constitutional ground, and makes the false assumption that an “Axness order” would require the DMV to declare the out-of-state conviction unconstitutional.   The court makes that declaration;  the order to the DMV is merely to set aside the suspension based on the invalid prior.  (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1498, 255 Cal.Rptr. 896.)

In Gaston v. Department of Motor Vehicles (1991) 230 Cal.App.3d 74, 281 Cal.Rptr. 173, another panel of the Court of Appeal, in distinguishing Axness,⁵ indulged in the same false assumption concerning the Supreme Court's decision in Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858:  “In Thomas ․ the court held Thomas could not bring a mandate proceeding against the department to have his prior drunk driving conviction declared invalid since the department had no duty to pass on the validity of such convictions.”  (Gaston, supra, 230 Cal.App.3d at p. 78, 281 Cal.Rptr. 173.)   The Thomas opinion does say, “It is no part of the department's duty to pass on the validity of those judgments” (Thomas, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858);  but that is not the reason it gives for refusing to permit a collateral attack on the convictions in a mandamus proceeding in the superior court.   As we understand the opinion, the court reasoned that Thomas had an adequate remedy because “he could have sought to have the rendering court set the conviction aside at any time.”  (Ibid.)  And this is exactly the basis for the Gaston court's result.   Because defendant's second accusation of driving under the influence occurred in this state, he had an adequate remedy in that prosecution to attack his out-of-state prior.  (Gaston, supra, 230 Cal.App.3d at p. 79, 281 Cal.Rptr. 173.)

Finally, Division One of this court, in another case of the Romo–Gaston variety (available forum because latest conviction occurred in California), went out of its way to criticize Axness in dicta as inconsistent with Thomas v. Department of Motor Vehicles, supra, 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858 and Cook v. Department of Motor Vehicles, supra, 33 Cal.App.3d 265, 109 Cal.Rptr. 104 (Morris v. Department of Motor Vehicles (1991) 231 Cal.App.3d 151, 159–160, 282 Cal.Rptr. 130.)   The Morris majority expressed the opinion that Thomas was controlling even in the Axness situation (latest conviction from another state) in that there the Supreme Court held a mandatory suspension was not a form of punishment.   Justice Wiener filed a concurring opinion, noting “[b]ecause I believe Axness was correctly decided I would have preferred the majority merely distinguish it on its facts thereby avoiding superfluous dictum which unnecessarily conflicts with established precedent.”  (Morris, supra, 231 Cal.App.3d at p. 161, 282 Cal.Rptr. 130 (conc. opn. of Wiener, J.).)

We agree with Justice Wiener and follow the reasoning of Axness.⁶  As a matter of federal constitutional law, this state may not deny a citizen the privilege to drive based on an unconstitutional conviction.   Accordingly, some forum must be provided to attack unconstitutional convictions, at least after relief has been denied in the rendering state court, the situation in Axness.   Although, as referenced above, courts have sometimes indulged the fanciful notion that suspension or revocation of a drivers license is not punishment, in the real world, the consequences are grave for many or most Californians.

The Attorney General simply tells us Axness was wrongly decided and should not be followed.   He has never argued this case is distinguishable from Axness, as we think it might be.   Recall that in Axness the motorist made a direct attack on the Minnesota conviction in the rendering court in Minnesota—and lost.   That was the urgent circumstance prompting the Axness court to provide a procedural outlet.   There is no allegation here, however, that Larsen has unsuccessfully attacked the constitutionality of his conviction in New York.   Perhaps that should be required,⁷ but we are not called upon to decide that.   As the Attorney General has elected to waive the argument, we leave the question for another day.⁸

The judgment is reversed with directions to proceed in accordance with the views expressed above.

I respectfully dissent.   However persuasive the majority opinion may appear, it is irrelevant because the California Supreme Court has determined drivers may not collaterally attack a prior conviction on which a license suspension is based in mandamus proceedings.   Moreover, because license suspension proceedings are civil in nature they do not invoke the full panoply of federal constitutional rights.   And finally, Larsen had full access to the rendering court to challenge his New York conviction.

Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858 is controlling.   There, the DMV suspended Thomas's driving privilege based on a pair of California drunk driving convictions.   Upon finding Thomas's first conviction invalid for lack of counsel, the trial court granted Thomas's mandamus petition and directed the DMV to set aside the suspension.   The Supreme Court reversed, noting Thomas could have challenged his first conviction in his second case, and if successful, the DMV could not have used it to suspend his license.  (Id. at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858.)   But having failed to do so, Thomas could not collaterally attack the conviction in mandamus proceedings against the DMV.  (Ibid.)

Thomas recognized a facially valid judgment of prior conviction may be attacked at any time on constitutional grounds “in a proceeding in which by reason of such prior conviction increased sanctions may be imposed against the person suffering it.  [Citations.]”  (Thomas v. Department of Motor Vehicles, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858.)   But Thomas held mandamus is not such a proceeding, and therefore superior court review of Thomas's first conviction was improper.  (Ibid.)  Thomas's correct remedy, the Supreme Court explained, was to challenge his prior conviction in the rendering court.  (Id. at pp. 338–339, 90 Cal.Rptr. 586, 475 P.2d 858.)

In Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265, 109 Cal.Rptr. 104, Division Two of this appellate district considered whether Thomas was controlling when the prior convictions occurred out of state.   The court concluded the distinction was immaterial and affirmed the trial court's refusal to independently assess the constitutionality of Cook's prior convictions.  (Id. at p. 267, 109 Cal.Rptr. 104.)   The court ruled such a result did not deprive Cook of due process because he had full access to the rendering courts to contest his prior convictions:  “There is no indication in Thomas that petitioner is denied the privilege of bringing mandamus in the superior court if he has complied with the apparently only prerequisite available to him, attacking the judgments in the rendering courts.”  (Id. at p. 268, 109 Cal.Rptr. 104.)

Cook and Thomas went unchallenged for 15 years until Axness v. Superior Court (1988) 206 Cal.App.3d 1489, 255 Cal.Rptr. 896.   Axness's suspension was based on drunk driving convictions in California and Minnesota.   He sought a writ of mandate, alleging his Minnesota conviction was unconstitutional, but the court denied relief.   On appeal, the court determined Axness was entitled to a California forum in which to test his out-of-state conviction and Code of Civil Procedure section 1085 allowed for such a challenge in the superior court.  (Id. at pp. 1494–1496, 255 Cal.Rptr. 896).

In a footnote, Axness distinguished Thomas as involving two California priors, while Axness's latest conviction occurred out of state.   (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1493, fn. 2, 255 Cal.Rptr. 896.)   More fundamentally, however, Axness ignored Thomas's holding mandamus review of the DMV's suspension order is not a proceeding in which additional sanctions may be imposed due to the driver's prior conviction.  Axness reached the exact opposite conclusion, finding, “Suspension of a driver's license is a ‘[penal] sanction’․”  (Id. at p. 1495, 255 Cal.Rptr. 896.)

Axness cited two appellate court cases in support of this proposition, Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 145 Cal.Rptr. 636 and Mitchell v. Orr (1969) 268 Cal.App.2d 813, 74 Cal.Rptr. 407, neither of which is apposite.   In those cases, the defendants collaterally attacked their prior convictions in criminal proceedings to prevent imposition of increased punishment by virtue of the priors.   This is fully consistent with Thomas.  Ganyo and Mitchell do not hold suspension of a driver's license is a penal sanction or that collateral review of a prior conviction in the administrative setting is proper.

Division One of this appellate district recognized as much in Morris v. Department of Motor Vehicles (1991) 231 Cal.App.3d 151, 282 Cal.Rptr. 130.   In Morris, the court affirmed the denial of a mandamus petition seeking to challenge the constitutionality of an out-of-state drunk driving conviction.   In so doing, the court cogently observed, “The fundamental premise of Axness that the mandate proceeding against DMV reviews imposition of a ‘penal sanction’ against the petitioner is expressly disavowed in Thomas.   [Citation.]”  (Id. at p. 160, 282 Cal.Rptr. 130.)   This alone should give the majority pause, given this court must follow our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) ¹

Nonetheless, the majority insists Larsen must be provided a California forum “[b]ecause a matter of federal constitutional concern is involved.”   (Maj. opn., p. 637.)   Not all legal proceedings trigger the full slate of rights available under the federal constitution, however.   For example, in Blanton v. North Las Vegas (1989) 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550, the United States Supreme Court ruled Blanton was not entitled to a jury trial in his prosecution for drunk driving, where the penalties for such offense ranged from six month's imprisonment to community service, a fine, and loss of driving privileges for 90 days.   In assessing the constitutional import of the non-prison consequences, the court stated the “90–day license suspension is [not] that significant as a Sixth Amendment matter ․” (Blanton v. North Las Vegas, supra, 489 U.S. at p. 544, fn. 9, 109 S.Ct. at p. 1294 fn. 9) and could not “approximate in severity the loss of liberty that a prison term entails.   Indeed, because incarceration is an ‘intrinsically different’ form of punishment, ․ it is the most powerful indication” whether a case warrants a jury trial.  (Id. at p. 542, 109 S.Ct. at p. 1292;  see also Scott v. Illinois (1979) 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 [actual incarceration is the line defining the federal constitutional right to appointment of counsel].)

The administrative framework under which Larsen's license was suspended is not intended to further punish persons who have already been subjected to criminal prosecution.   Rather, it is designed to protect the public against drunk drivers.   That is why collateral review of a prior conviction in license suspension proceedings is improper.  (See Thomas v. Department of Motor Vehicles, supra, 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858.) ²

On the other hand, a six-month license suspension is a considerable inconvenience for most people.   Thus, drivers must have some forum in which to challenge their prior convictions on constitutional grounds.   Here, Larsen had full access to the rendering court to do so.   If he had succeeded, Larsen could have petitioned the superior court to set aside the DMV's suspension order based on the prior conviction's invalidity.   Accordingly, I would affirm the superior court's ruling.

FOOTNOTES

1.   Larsen, it appears, was not placed on probation in New York.   We suspect terminal dispositions of that sort are probably common when sister states deal with California motorists convicted of driving under the influence because probation is impractical as applied to persons who are just passing through.   Also, defending an accusation of driving under the influence far from home may be close to an impossible burden for many, thereby inducing guilty pleas that would not otherwise be entered.   Thus, the Vehicle Code scheme puts our own citizens at greater risk of losing driving privileges when they are prosecuted in other jurisdictions, a perverse situation in some, but not all, ways it seems to us.

2.   Boykin and Tahl hold, “the record [of a guilty plea] must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.   Each must be enumerated and responses elicited of the person of the defendant.”  (In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

3.   The DMV also contended the conviction was in fact valid, but the Court of Appeal disagreed.   From what is before us, the record from the New York prosecution does appear to be defective per Boykin–Tahl.   We do not decide that issue, however, for reasons explained anon.

4.   The procedure for multiple offenders is to challenge an earlier conviction in the new prosecution.  (See Veh.Code, § 23209.)

5.   The court did state in dicta it had “serious questions regarding the soundness of the Axness decision.”  (Gaston v. Department of Motor Vehicles, supra, 230 Cal.App.3d at p. 79, 281 Cal.Rptr. 173.)

6.   In fact, were we looking at a clean slate, we might reach a different conclusion on the DMV's power to overlook unconstitutional prior convictions.   The DMV and its army of attorneys could easily examine prior convictions to determine whether they are constitutional.   Virtually anyone who reads English can examine a record of conviction for compliance with the Boykin–Tahl.   Moreover, the state has no legitimate or justifiable interest in perpetuating a system in which drivers licenses are routinely suspended based on obviously unconstitutional convictions.The Supreme Court has recently held the DMV may make constitutional determinations with respect to reasonable cause to detain a motorist and even that it need not defer to a previous court finding that there was no probable cause to detain.  (Gikas v. Zolin (1993) 6 Cal.4th 841, 25 Cal.Rptr.2d 500, 863 P.2d 745.)   The court could follow its own lead and recognize that DMV should identify and ignore unconstitutional convictions, a far more efficient system than the current procedural obstacle course Axness was forced to erect.   If it does not, the Legislature should do so, in our opinion.

7.   As a practical matter, such a requirement would effectively deny relief to most people, we think.   And the Axness court did suggest an out-of-state challenge was not required.  (Axness v. DMV, supra, 206 Cal.App.3d at p. 1493, fn. 2, 255 Cal.Rptr. 896.) But that was in dicta, of course.

8.   Larsen has also waived the relief Axness obtained, a ruling from the Court of Appeal that the out-of-state conviction did not pass muster under Boykin–Tahl.   He states, and we agree, that the superior court did not reach the merits and the incomplete record before us is possibly inadequate to resolve the matter.But the Attorney General asks us to uphold the constitutionality of the conviction based on a letter from a New York judge claiming Larsen was properly advised in open court.   We decline that invitation.   Apart from the hearsay nature of this spurious “evidence,” as we noted at the outset, the Boykin–Tahl determination must be made from the record of the proceedings.  (See fn. 2.)

1.   The majority suggests Axness may be distinguishable because Axness unsuccessfully challenged his Minnesota conviction in the rendering court, stating “[t]hat was the urgent circumstance prompting the Axness court to provide a procedural outlet” in California.  (Maj. opn., p. 640.)   However, Axness expressly noted:  “Since appellant is entitled to challenge the constitutionality of his Minnesota conviction in California even if that conviction has been upheld in Minnesota ․ we do not regard his out-of-state challenge as a prerequisite to the relief sought in this case.”  (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1493, fn. 2, 255 Cal.Rptr. 896.)

2.   Thomas is fully consistent with sister state decisions on this topic.  (See, e.g., State v. Laughlin (Colo.1981) 634 P.2d 49 [collateral attack on prior conviction not permitted in administrative license revocation hearing];  State v. Boos (1983) 232 Kan. 864, 659 P.2d 224, 231 [“The attempt to assert a collateral attack in (a civil license revocation proceeding) upon prior criminal convictions, based upon an alleged failure to show the defendant in those actions did not knowingly, intelligently, and voluntarily waive his [or her] various constitutional rights, lacks merit.”];  Texas Department of Public Safety v. Casselman (Tex.1967) 417 S.W.2d 146 [collateral attack on underlying convictions not permitted in action contesting driver's license suspension];  Stalnaker v. Roberts (1981) 168 W.Va. 593, 287 S.E.2d 166 [collateral attack on priors in driver's license suspension proceedings not allowed—“We are dealing [with] an administrative remedy which exacts an administrative sanction;  we are not concerned with subsequent prosecutions under the drunk driving statute where an enhanced judicial penalty of imprisonment depends upon the validity of prior convictions.”  (Original italics.) ];  Application of Hathcock (1969) 9 Ariz.App. 178, 450 P.2d 419 [collateral attack on conviction on which license revocation order is based improper in mandamus proceedings];  State v. Kamalski (Del.Super.1981) 429 A.2d 1315, 1321 [“due process [does not] require that the Respondents be given the opportunity to collaterally attack the validity of convictions upon which the determination that Respondents are habitual offenders would be based.”];  Kuhn v. State ex rel. Van Natta (Ind.App.1980) 404 N.E.2d 1360 [driver may not contest validity of a prior criminal conviction at civil habitual traffic offender proceeding];  State v. Free (La.App.1975) 321 So.2d 50, 54 [“the constitutional restrictions on the state's imposition of criminal sanctions is not germane to determine the state's right in a civil proceeding to protect its motorists from mayhem on the highways.”];  Dept. of Transp. v. Seung How Ra (1987) 109 Pa.Cmwlth. 279, 530 A.2d 1046 [motorist cannot challenge license suspension even if guilty plea to underlying conviction was not intelligently made];  Everhart v. State (Tenn.Crim.App.1978) 563 S.W.2d 795 [convictions on which suspension of driver's license was based cannot be collaterally attacked in proceeding related to suspension].)

CROSBY, Associate Justice.

WALLIN, Acting P.J., concurs.