LEONARD v. DEPARTMENT OF MOTOR VEHICLES (1983)

 We hold that on and after January 1, 1981, the Department of Motor Vehicles (DMV) could properly suspend or revoke a driver's license in accordance with the provisions of Vehicle Code section 13352,¹ as amended effective that date, and that such implementation of the statute as amended is neither an improper retroactive application of it nor an implementation of an ex post facto law.

Leonard was arrested for driving under the influence of alcohol (DUI) on March 19, 1976, and again on July 20, 1980.   These arrests resulted in convictions, pursuant to former section 23102, subdivision (a),² on April 28, 1976, and on June 2, 1981, respectively.   Thus, Leonard's offenses were within five years of each other, but his convictions were not.

At the time of Leonard's second offense (July 20, 1980), section 13352 mandated a one-year suspension of the driver's license of a person suffering a second conviction for DUI within five years of a first conviction.   (Stats.1978, ch. 911, § 3, pp. 2871–2872;  see also Stats.1974, ch. 545, § 164, pp. 1312–1313.)   At the time of his second conviction, however, amended section 13352, subdivision (c), mandated a one-year suspension of the driver's license of a person convicted of a DUI “offense which occurred within five years of the date of a prior offense which resulted in a conviction, ․”  (Stats.1980, ch. 1004, § 1, pp. 3196–3197.)

The DMV, after receiving notice of Leonard's second conviction, issued a suspension order on July 6, 1981, in conformity with amended section 13352, subdivision (c).³  On October 5, 1981, Leonard petitioned for a writ of mandate, arguing that the language of section 13352 applicable to his case was that in effect at the time of his second offense, not that in effect at the time of his second conviction.   The trial court concluded that the suspension order reflected an invalid retroactive application of amended section 13352.   We agree with DMV's contention that its application of the amended statute was valid.   Accordingly, we reverse the judgment.

Leonard challenges the DMV's interpretation on the ground that it improperly requires retroactive consideration of his offenses.   He relies solely on Callahan v. Department of Motor Vehicles (1976) 61 Cal.App.3d 704, 132 Cal.Rptr. 625 as authority for the proposition that section 13352 cannot be applied retroactively.

Callahan v. Department of Motor Vehicles, supra, 61 Cal.App.3d 704, 132 Cal.Rptr. 625, does not support his argument.   In that case the respondent received a third conviction for DUI on December 5, 1973, and the DMV revoked his driving privilege pursuant to section 13352, subdivision (e), as it existed on the date of his third conviction.  (Callahan, supra, at pp. 705–706, 132 Cal.Rptr. 625.)   One of the respondent's arguments on appeal was that amended section 13352, subdivision (e), effective January 1, 1974, should be applied retroactively because it lessened his “punishment.”  (Callahan, supra, at pp. 706–707, 132 Cal.Rptr. 625.)   The court noted that there was no evidence of legislative intent to rebut the general presumption against retroactivity and indicated that the amended statute could not be applied to an operative conviction date occurring before its enactment.  (Id., at p. 707, 132 Cal.Rptr. 625.)   It then examined the question whether the conviction actually occurred before or after the amendment's effective date and held, in apparent agreement with our conclusion, that the conviction date determines which version of the statute must be applied.  (Id., at pp. 707–708, 132 Cal.Rptr. 625.)   Simply stated, the court applied the version of section 13352 in effect on the operative conviction date, as did the DMV in this case.

 The rule against retroactivity, referred to in Callahan, supra, 61 Cal.App.3d 704, 132 Cal.Rptr. 625, 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.⁴  (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.  (In re Marriage of Bouquet, supra, 16 Cal.3d 583, 587, 591, fn. 6, 128 Cal.Rptr. 427, 546 P.2d 1371.)

 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 sought to be implemented.  (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;  In re Marriage of Bouquet, supra, 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371.)

The DMV's mandatory duty to suspend or revoke a licensee's driving privilege under section 13352 arises, in all versions of the statute, “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.  (§ 13352, subd. (a);  Stats.1980, ch. 1004, § 1, pp. 3196–3197;  Stats.1978, ch. 911, § 3, pp. 2871–2872;  see also, e.g., Stats.1945, ch. 930, § 3, p. 1729.)   Although this might suggest that the operative date for the purpose of applying the effective statutory language is the date the DMV receives the abstract of conviction, that date will always be somewhat arbitrary.⁵  Accordingly, the statute, in all pertinent versions, further provides that “suspension or revocation shall be as follows: ․” and, in the applicable subdivision, states, “[u]pon a second conviction ․”  (Stats.1980, ch. 1004, § 1, pp. 3196–3197;  Stats.1978, ch. 911, § 3, pp. 2871–2872;  cf. § 13352, subd. (a)(3).)

The ordinary import of this language clearly implies 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 “[u]pon a ․ conviction,” and would serve only to forestall the implementation of the statute in individual cases until long 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.   Furthermore, the 1980 amendment clearly provides a method of computing repetitive DUI which more effectively promotes its basic purpose, for the frequency of repeated offenses, rather than of the resulting convictions, is more relevant to the evil against which the legislation is aimed.

Amended section 13352 cannot be applied retroactively, however, if it operates as an ex post facto law, impairs a contractual obligation, or impairs a vested right in violation of due process.  (5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 282, p. 3571.)   Here, of course, there is no question of contractual impairment.

 The ex post facto clauses of the state and federal constitutions apply only to penal statutes.  (Conservatorship of Hofferber, supra, 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 836.)   It is well established that statutes such as amended section 13352, providing for the suspension or revocation of licenses, are not “penal” statutes subject to the 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.⁶  (Foster v. Police Commissioners, supra, 102 Cal. 483, 490–491, 37 P. 763;  Furnish v. Board of Medical Examiners, supra, 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, supra, 51 Cal.App.2d 753, 758–759, 125 P.2d 521;  see Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 210, 4 Cal.Rptr. 396.)

 This leaves the question whether the retroactive effect of amended section 13352 violates due process.   Leonard's retention of his driver's license, once issued, is a “vested” right (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 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, supra, 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, supra, 28 Cal.3d 161, 183, 167 Cal.Rptr. 854, 616 P.2d 836.)   As previously noted, retroactive application of amended section 13352 is obviously important to effectuate that interest, since the amended method of determining the degree of danger posed by a licensee is much more relevant than the prior method based on relatively arbitrary conviction dates.

Little weight should be given to reliance on the former law in this situation, for no one would do so except for the purpose of posing a great public danger with relative impunity.   Nevertheless, Leonard suggested in his petition for writ of mandate that he pled guilty to the second violation of former section 23102 because he understood that his first conviction would not be considered in determining the legal consequences of this plea, as it was beyond the five-year period under the former law.   It is apparent, however, that Leonard's action in reliance on the former law was based on his understanding of the legal consequences which the prior conviction would have only in connection with the punishment for his second conviction, not in connection with any possible administrative action under section 13352.   Also, amended section 13352 had been in effect six months prior to his guilty plea, and he could not reasonably rely on the former version when he took this action.

We conclude that the retroactive effect of amended section 13352 is reasonable and sufficiently necessary to justify the impairment of Leonard's right to drive.   It thus does not violate due process.

The judgment is reversed.⁷

FOOTNOTES

1.   All statutory references are to the Vehicle Code.

2.   Present section 23152, subdivision (a).

3.   Present section 13352, subdivision (a)(3).

4.   The Supreme Court has suggested that even a statute which focuses on protecting the public from an existing danger may not be retroactive simply because it refers to preenactment conduct as evidence of the ongoing danger.  (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 182, 167 Cal.Rptr. 854, 616 P.2d 836.)   But amended section 13352 must be considered to have a retroactive effect, because it determines by a new method a licensee's present fitness to drive based on past conduct.   (Foster v. Police Commissioners (1894) 102 Cal. 483, 492, 37 P. 763;  Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 330–331, 308 P.2d 924;  see In re Marriage of Bouquet (1976) 16 Cal.3d 583, 593–594, fn. 10, 128 Cal.Rptr. 427, 546 P.2d 1371.)   It is surely a retroactive amendment, in that it gives actions different legal consequences than were given to them at the time they occurred.   (Conservatorship of Hofferber, supra, 28 Cal.3d 161, 182, 167 Cal.Rptr. 854, 616 P.2d 836;  Ware v. Heller (1944) 63 Cal.App.2d 817, 821, 148 P.2d 410.)

5.   The abstracts of conviction must be prepared within 10 days after conviction or sentencing and immediately forwarded to the DMV.  (§ 1803, subd. (a);  see Stats.1978, ch. 954, § 1.5, pp. 2953–2954.)   When there is a delay, the abstract is nonetheless effective upon receipt as if it had been timely made.  (Ellis v. Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753, 756, 125 P.2d 521.)

6.   The language of People v. O'Rourke (1932) 124 Cal.App. 752, 759, 13 P.2d 989, to the effect that suspension of a driver's license is “part and parcel” of the conviction for DUI, has significance only in relation to the argument in that case that the administrative action was an impermissible penalty imposed in addition to that inflicted by the court.   (Cf. Hough v. McCarthy (1960) 54 Cal.2d 273, 282, 5 Cal.Rptr. 668, 353 P.2d 276.)

7.   We have carefully considered our opinion after granting a petition for rehearing and conclude that our decision as originally filed is correct.

BARRY–DEAL, Associate Justice.

WHITE, P.J., and SCOTT, J., concur.