FOX v. ALEXIS DIRECTOR (1983)

MODIFICATION OF OPINION, AND ORDER FOR PUBLICATION

The Department of Motor Vehicles (DMV) appeals from a judgment granting a writ of mandate directing the DMV to set aside an order suspending the driving privileges of Dale Wayne Fox pursuant to Vehicle Code section 13352, subdivision (a)(5).¹  We reverse.

Fox was arrested and convicted for driving under the influence of alcohol (DUI) in 1978 and 1980, pursuant to former section 23102, subdivision (a).   On December 20, 1981, Fox was again arrested for DUI under section 23102, subdivision (a), and was convicted by a jury on March 18, 1982.   Fox was granted probation;  as a condition of that probation, he was to participate in an alcoholism treatment program pursuant to section 13352.5 in lieu of a three-year driver's license suspension.

On April 23, 1982, after receiving notice of Fox's third conviction, the DMV ordered his driving privileges revoked for three years pursuant section 13352, subdivision (a)(5).   Fox petitioned for writ of mandate, arguing that the DMV had erroneously applied an amended portion of section 13352 to him that was not in effect at the time of his offense.   The trial court granted the writ, explaining in its statement of decision as follows:  “[Fox] was convicted of Section 23102 of the Vehicle Code and not of Section 23152 of the Vehicle Code.  Section 13352 of the Vehicle Code, as amended, makes reference to convictions for violations of Section 23152 or 23153.   Section 13352, as amended, is not applicable to convictions of Section 23102 of the Vehicle Code.   There is no indication of legislative intent that the language in Section 13352 of the Vehicle Code is meant to retroactively apply to violations of Section 23102 of the Vehicle Code.”

We agree with DMV that application of amended section 13352 was proper.

DISCUSSION

Section 13352 was amended in 1981 and was part of an extensive revision of the civil and criminal penalties for drunk driving convictions.  (See Selected 1981 California Legislation, 13 Pacific L.J. 787.)  Section 13352 as amended in 1981 provides that a person convicted of three offenses under section 23152 within a period of five years, shall be subject to a mandatory revocation of driving privileges for a period of three years.  (Stats.1981, ch. 939, § 6, p. 3549;  ch. 940, § 5, p. 3563.)   Under prior law (former § 13352.5), the DMV was not permitted to suspend or revoke the driving privileges of persons previously convicted of DUI offenses if the court had certified to the DMV that the convicted person consented to and participated in a public or private program for problem drinking for at least one year.  (Stats.1978, ch. 954, § 2, p. 2954.)   The 1981 amendment became effective January 1, 1982, after Fox's third arrest for DUI and prior to his third conviction.

I

 Fox first argues that revocation of his driving privileges pursuant to amended section 13352, subdivision (a)(5),² violates the prohibition against ex post facto legislation contained in the state and federal Constitutions.  (U.S. Const., art. I, § 9, cl. 3;  Cal. Const., art. I, § 9.)   It is well established, however, that statutes which provide for the suspension or revocation of licenses, are not penal statutes subject to ex post facto prohibition, even though they may require the consideration of past offenses.   Such statutes are intended to protect the public rather than to punish licensees.  (Foster v. Police Commissioners (1894) 102 Cal. 483, 490–491, 37 P. 763;  Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 330–331, 308 P.2d 924;  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;  Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 210, 4 Cal.Rptr. 396.)

 Although section 13352 plainly provides for revocation or suspension of driving privileges by the DMV, Fox argues the exercise of that administrative authority is penal because explicit reference to it is made in section 23170,³ which sets forth the criminal penalties for drunk driving.

Newly numbered section 23170, a part of the 1981 legislative revision, which amended section 13352, contains the criminal penalties for DUI previously contained in sections 23101 and 23102.   Old sections 23101 and 23102 (now newly numbered 23152 and 23153) also defined the violations of felony and misdemeanor drunk driving;  with the exception of enhanced criminal punishments, the substantive provisions of old sections 23101 and 23102 remain unchanged.   The reference in amended section 13352, subdivision (a)(5), to a violation of section 23152 “punishable under Section 23170” merely refers to the penalties previously contained in old section 23102 (now § 23152), now separated into a distinctly numbered section, and to the time frame for counting the number of offenses.

Fox argues that “the language of Section 23170 makes it clear that a driver's license suspension under its provisions is punitive, i.e., it operates as a penalty on the defendant.”   His argument misses the mark.   To the extent that section 23170 sets forth the punishment to be imposed in specified circumstances it is penal;  however, the operative statute (§ 13352) following the 1981 amendments provides only for the revocation of driving privileges by the DMV—action that has never been considered penal because it is taken for the sole purpose of protecting the public.  (Beamon v. Dept. of Motor Vehicles, supra, 180 Cal.App.2d at p. 210, 4 Cal.Rptr. 396;  Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 113, 150 Cal.Rptr. 743;  Ellis v. Dept. of Motor Vehicles, supra, 51 Cal.App.2d at pp. 758–759, 125 P.2d 521;  Henry v. Department of Motor Vehicles (1972) 25 Cal.App.3d 649, 654–655, 102 Cal.Rptr. 36;  McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1019, 140 Cal.Rptr. 168.)   The reference in section 13352 to section 23170 is for the limited purpose of identifying the circumstances under which the administrative action must occur.   That in itself cannot ipso facto transform a statute authorizing license revocation by an administrative agency into a penal provision.

 Fox also asserts that because no provision is made under section 13352 for an independent DMV evaluation of fitness to drive, the mandatory suspension is a criminal penalty.   Again we disagree.   The absence of such a “fitness” hearing does not talismanically render the administrative act of suspending a driver's license a criminal penalty.   The Legislature, instead of delegating the fact-finding function of fitness to DMV, has itself determined that three DUI convictions within five years constitutes unfitness to drive and that participation in an alcohol rehabilitation program is not a satisfactory alternative to license suspension.  (Cf. Talley v. Municipal Court, supra, 87 Cal.App.3d 109, 150 Cal.Rptr. 743.)   While it is true that the DMV now performs the purely “ministerial” act of implementing the suspension, it does not follow that there has been a change in the essential character of the administrative act, which is defined primarily by reference to the purposes such action is intended to serve.  (See 7 Ops.Cal.Atty.Gen. 47 (1946).)   Contrary to Fox's claim, there is no less an “independent purpose” served by license suspension pursuant to amended section 13352 as under prior law.   In both instances the law provided for suspension in order to protect the public from a driver who by his conduct had demonstrated he was unfit to drive.   Fox correctly points out that many decisions, holding license revocation statutes to be non-penal, involved situations where an administrative “fitness” hearing had been held.  (See Goss v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 268, 269, 70 Cal.Rptr. 447;  Beamon v. Dept. of Motor Vehicles, supra, 180 Cal.App.2d at p. 203, 4 Cal.Rptr. 396;  Murrill v. State Board of Accountancy, supra, 97 Cal.App.2d at p. 710, 218 P.2d 569;  Furnish v. Board of Medical Examiners, supra, 149 Cal.App.2d at p. 328, 308 P.2d 924;  United States v. Best (1978) 573 F.2d 1095, 1100;  Henry v. Department of Motor Vehicles, supra, 25 Cal.App.3d at p. 655, 102 Cal.Rptr. 36.)   However, only the Henry and Best cases expressly cited that fact as evidence of the non-penal character of an administrative license suspension.   We conclude the fact such a hearing is not held does not alter the conclusion that license revocation statutes are non-penal.

Fox relies on People v. O'Rourke (1932) 124 Cal.App. 752, 13 P.2d 989, in support of his penal argument.   The O'Rourke court stated at page 759, 13 P.2d 989 that “The revocation or suspension of the operator's license is not the imposition of an additional penalty to the judgment of conviction.   It is a part and parcel thereof, and ․ constitute[s] only that part of the legal penalty which the law inflicts as a part of the judgment of conviction.”   Fox relies on the quoted passage for the proposition that mandatory administrative suspension is a criminal sanction;  we conclude the court was merely recognizing the practical consequences of a DUI conviction.   Although the distinction may be subtle, what constitutes a “legal penalty” as that term is loosely used is not necessarily a criminal sanction within the proscription against ex post facto legislation.   What separates one from the other must rest in large part on the purpose for which the governmental action is taken.   As the cases make clear, the narrow and singular purpose to be served by license revocation—protection of the public—is demonstrably different from the broader punitive and deterrent objectives of the criminal justice system.

 We conclude that retroactive application of section 13352 does not violate the proscription against ex post facto laws.

II

Fox asserts the “Legislature did not intend that the 1981 amendments ․ would apply retroactively to violations of former Vehicle Code section 23102.”

 The rule against retroactivity is that an amendatory provision which affects substantive rights is, like an original act, presumed not to apply to events completed prior to its enactment, absent express legislative intent to that effect, or intent clearly implied by the statute or the circumstances surrounding its enactment.  (1A Sands, Statutes and Statutory Construction (4th ed. 1972 [revision of Sutherland Statutory Construction] ) § 22.36, p. 200.)   Courts apply the presumption only if, after considering all pertinent factors, they fail to ascertain any legislative intent.   The statutory language itself is the foremost source of legislative intent;  other considerations include the context and object of the legislation, the evil sought to be remedied, and the public policy to be implemented.

 The language of the statute requires the DMV to suspend or revoke a licensee's driving privilege “immediately ․ upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted [of an enumerated offense] ․ suspension or revocation shall be as follows: ․  [¶] (3) ․ upon a conviction ․”  (§ 13352, subd. (a)(3).)

The ordinary import of this language clearly implies the intent that, so long as it is applied prospectively to the operative conviction dates, it should be applied retrospectively to consider offenses which occurred prior to its enactment.   A construction requiring suspension only if the latest offense, or all offenses, occurred after the effective date cannot be reconciled with the direction that the DMV act upon a conviction, and would serve only to forestall the implementation of the statute in individual cases until after the date of its enactment.   Considering that the amendment's purpose is to protect the public from those who repeatedly DUI, we conclude that the Legislature intended no such delay in implementation.

In Johnson v. Alexis (1983) 143 Cal.App.3d 82, 191 Cal.Rptr. 528, relied on by Fox, the court found no expression of legislative intent that former section 13352 (amended in 1980) have retroactive application;  the 1980 amendment provided that two offenses, rather than two convictions, within five years, become the basis for driver's license suspension.  Johnson is factually inapposite;  it dealt with an earlier (1980) amendment to section 13352;  we are concerned here with the latest (1981) amendment to the section.   The substance of the two amendments is palpably different;  in Johnson, the earlier amendment changed the time frame (time of offense as opposed to time of conviction) for determining when administrative suspension was required, while in this instance we are merely faced with the elimination of a rehabilitation program as an alternative to license suspension.   The difference is considerable when addressing the purpose of the amendatory act (i.e., the “evil sought to be remedied” and the public policy to be implemented) while attempting to discern legislative intent.  (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658–659, 147 Cal.Rptr. 359, 580 P.2d 1155.)

By amending section 13352 to require license suspension for two offenses, rather than two convictions, the Legislature closed a loophole which had rewarded defense attorneys for manipulating delays in driving under the influence proceedings for the purpose of avoiding an “untimely” second conviction.   The amendment also eliminated local differences in bringing cases to trial that may have resulted in the disparate treatment of persons similarly situated.   Obviously, the Legislature accomplished in 1980 what it originally had intended:  to remove persons who had committed two DUI offenses within a designated and inelastic time period.

The 1981 amendment merely eliminated an alcohol rehabilitation program that had proved a failure;  the amendment was obviously enacted for the singular purpose of removing demonstrably unsafe drivers from the road.  Johnson is inapplicable.

Fox also argues against the DMV's interpretation of section 13352, relying on the fact that “the statutes prescribing punishment under the new law—speak only to violations of sections [sic ] 23152, not to violations under former Vehicle Code section 23102.”

The bill providing for the enactment of section 23152 expressly provides that section 23102 was simply being “amended and renumbered.”  (Stats.1981, ch. 940, § 12, p. 356.)   By that language the Legislature manifested its intent to include within the purview of new section 13352 those statutorily defined offenses under 23102 that remain substantively unchanged following renumbering.   Moreover, the bill specifically provided that “Any reference in the provisions of the Vehicle Code to a prior offense of Section 23152 shall include a prior offense under Section 23102 ․ as [that section] read prior to January 1, 1982.”  (Stats.1981, ch. 940, § 45(b), p. 3582.)   Fox seizes upon this language as evidence that “the Legislature intended that prior offenses under section 23102 could only be used for the enhancement of convictions arising from an offense triable under the new Vehicle Code section.”  (Emphasis in original.)   We disagree.   We perceive the legislative note as explanatory that convictions under 23102 would be considered prior convictions within the meaning of section 13352.   The language of the statute itself makes it clear that the statute has “retroactive” application.   The Legislature did not intend by negative implication, as Fox argues, to preclude the DMV from utilizing convictions under section 23102 when those convictions constitute the third offense under section 13352, subdivision (a)(5).

We conclude no inference of legislative intent is raised from the particular way the Legislature decided to reorganize the administrative and penal provisions regarding DUI.

III

 Fox contends he was denied equal protection because he received different treatment than other members of his class;  he described those other members as those arrested prior to January 1, 1982.

We note at the outset that neither a suspect class nor a fundamental interest is involved here.  (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396–398, 188 Cal.Rptr. 891, 657 P.2d 383;  Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 76–84, 177 Cal.Rptr. 566, 634 P.2d 917.) ⁴  Accordingly “the applicable equal protection standard of review is the so-called ‘traditional’ or ‘restrained’ standard of review, under which the judiciary affords challenged legislation a presumption of constitutionality.”  (Cooper v. Bray (1978) 21 Cal.3d 841, 847, 148 Cal.Rptr. 148, 582 P.2d 604;  see also Talley v. Municipal Court, supra, 87 Cal.App.3d at p. 114, 150 Cal.Rptr. 743.)

It is true that persons whose DUI convictions were prior to January 1, 1982, might receive more favorable treatment than those convicted after January 1, 1982, even though “similarly situated” by virtue of the fact the DUI occurred prior to January 1, 1982.  (See In re Kapperman (1974) 11 Cal.3d 542, 547, fn. 6, 114 Cal.Rptr. 97, 522 P.2d 657.)   We nevertheless conclude that the challenged legislative distinction has a rational basis and must be upheld.

The 1981 amendments removed the option of attending an alcohol rehabilitation program as an alternative to license suspension for those drivers convicted of three offenses in five years.   Obviously the Legislature determined that the alcohol rehabilitation program, which began in 1978 (Stats.1977, ch. 890), did not lessen the recidivist and dangerous public behavior brought about by DUI.  (See Talley v. Municipal Court, supra, 87 Cal.App.3d 109, 150 Cal.Rptr. 743.)   By requiring the DMV to apply amended section 13352 to all convictions received after January 1, 1982, the Legislature was able to obtain relatively expeditious implementation of the statute, thereby acting in furtherance of the strong state interest in eliminating safety hazards related to driving (see Hernandez v. Department of Motor Vehicles, supra, 30 Cal.3d at pp. 76–84, 177 Cal.Rptr. 566, 634 P.2d 917;  Peterson v. Superior Court (1982) 31 Cal.3d 147, 164, 181 Cal.Rptr. 784, 642 P.2d 1305), while at the same time providing for the uniform agency transition from one set of administrative procedures to another.  (See In re Flodihn (1979) 25 Cal.3d 561, 568, 159 Cal.Rptr. 327, 601 P.2d 559;  Crawford v. Board of Education (1976) 17 Cal.3d 280, 309–310, 130 Cal.Rptr. 724, 551 P.2d 28.)   Both these interests justify the difference in treatment under a rational basis analysis.

IV

 Finally, Fox argues that retroactive application of amended section 13352 violates due process.   Fox's retention of his driver's license, once issued, is a “vested” right (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 396, 188 Cal.Rptr. 891, 657 P.2d 383), which doubtlessly is impaired by the retroactive effect of amended section 13352.   But such a right may be impaired, without violating due process, by a reasonable exercise of the state's police power, so long as it is sufficiently necessary to protect the public.  (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592, 128 Cal.Rptr. 427, 546 P.2d 1371.)   Factors to consider in determining whether the retroactive impairment of a vested right is sufficiently justified to satisfy due process requirements include the significance of the state interest served by the law, the importance of retroactive application in giving effect to that interest, the extent and legitimacy of reliance upon former law, the extent of actions based on that reliance, and the extent to which retroactive application would disrupt those actions.  (Ibid.)  The state interest here is of overwhelming significance.  (See, e.g., South Dakota v. Neville (1983) –––U.S. ––––, ––––, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 755.)   Because of the potential danger of motor vehicles, the state has regulated licensing of their operation almost from their first appearance.  (Serenko v. Bright (1968) 263 Cal.App.2d 682, 691, 70 Cal.Rptr. 1.)   The protection of individuals against danger is one of the most fundamental state interests.  (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 183, 167 Cal.Rptr. 854, 616 P.2d 836.)

The judgment is reversed and remanded with directions to the trial court to enter judgment for DMV.

FOOTNOTES

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

2.   Section 13352 provides in pertinent part that “(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 ․   For the purposes of this section, suspension or revocation shall be as follows: ․  [¶] (5) Upon a conviction or finding of a violation of Section 23152 punishable under Section 23170, the privilege shall be revoked for a period of three years․”

3.   Section 23170 provides, “If any person is convicted of a violation of Section 23152 and the offense occurred within five years of two or more prior offenses which resulted in convictions of violations of Section 23152 or 23153 or both, that person shall be punished by imprisonment in the county jail for not less than 120 days nor more than one year and by a fine of not less three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).   The person's privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (5) of subdivision (a) of Section 13352.”

4.   Berlinghieri held that a “driver's license is a fundamental right for the purpose of selecting the standard of judicial review of an administrative decision to suspend or revoke such license” (id., at pp. 397–398, 188 Cal.Rptr. 891, 657 P.2d 383);  the court carefully distinguished judicial review of challenges to the constitutionality of legislation involving the right to drive, which does not involve a fundamental interest subject to strict scrutiny review.  (Ibid.)

EVANS, Associate Justice.

PUGLIA, P.J., and CARR, J., concur.