McDonald v. Department of Motor Vehicles

se” law (§ 13353.2 et seq.), section 23152 and Colorado’s DWAI law (C.R.S. § 42-4-1202(l)(b)). “The rules of statutory construction require us to ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] The words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] When the language is susceptible of more than one reasonable interpretation, we look to the legislative history of the statute and the wider historical circumstances of its enactment in ascertaining the legislative intent. [Citation.]” (Clayton v. Superior Court (1998) 67 Cal.App.4th 28 , 31 [ 78 Cal.Rptr.2d 750 ].)

A. The Driver License Compact

In 1963, California’s Legislature enacted into law the Driver License Compact (Compact) (§ 15000 et seq.), finding that the safety of California’s streets and highways is materially affected by drivers’ degree of compliance with state and local laws relating to the operation of motor vehicles and that the violation of those laws is evidence that the violator engages in conduct likely to endanger the safety of persons and property (§ 15020, subd. (a)(1), (2)). The Compact is specifically intended to increase highway and street safety by “[p]romot[ing] compliance with the laws, ordinances and administrative rules and regulations relating to the operation of motor vehicles.” (§ 15020, subd. (b)(1); Larsen v. Department of Motor Vehicles (1995) 12 Cal.4th 278 , 282, fn. 4 [ 48 Cal.Rptr.2d 151 , 906 P.2d 1306 ] [the Compact is “intended to increase highway and street safety by enhancing the degree of compliance with laws governing the operation of motor vehicles in party states.”].) Another important purpose of the Compact is to “[m]ake the reciprocal recognition of licenses to drive and eligibility therefor more just and equitable by considering the overall compliance with motor vehicle laws, ordinances and administrative rules and regulations as a condition precedent to the continuance or issuance of any license by reason of which the licensee is authorized or permitted to operate a motor vehicle in any of the party states.” (§ 15020, subd. (b)(2).) The Compact is to be liberally construed to effectuate its purposes. (§ 15028.) The State of Colorado is a party to the Compact. (C.R.S. §24-60-1101 (1997); Kramer v. Colorado Dept, of Revenue, Motor Vehicle Division (Colo.Ct.App. 1998) 964 P.2d 629 .)

Under the Compact, party states are required to report convictions of persons from another party state to the home state of the licensee. (§ 15022.) The DMV’s treatment of reported prior convictions is governed by section 15023, which provides in part:

15023 provides a more relaxed standard; party states may construe other offenses or violations as falling under subdivision (a) so long as the offenses and violations are of a “substantially similar nature” as driving while under the influence of an intoxicating liquor. Under subdivision (b) of section 15023, the DMV must give effect to the conduct involved in “other convictions” as it would under California law.

Section 15023 cross-references section 13363, relating to convictions in foreign jurisdictions. Section 13363, subdivision (a) gives the DMV discretion, aside from the mandatory obligations of the Compact, to suspend or revoke driving privileges upon notice of a prior out-of-state conviction “which, if committed in this State, would be grounds for the suspension or revocation of the privilege to operate a motor vehicle.” Subdivision (b) of section 13363 provides that the DMV “shall not give effect to [a report of an out-of-state conviction] pursuant to . . . Section 15023 unless the department is satisfied that the law of such other place pertaining to the conviction is substantially the same as the law of the State pertaining to such conviction and that the description of the violation from which the conviction arose, is sufficient and that the interpretation and enforcement of such law are substantially the same in such other place as they are in this State.” (§ 13363, subd. (b).)

McDonald contends the Compact is irrelevant to these circumstances because it has been “unchanged” since its enactment and its general provisions should be governed by other more specific but unidentified Vehicle Code sections addressing penalty enhancements. He further argues that the Legislature did not intend out-of-state convictions to be used as suspension enhancements in administrative per se cases, because the administrative per se law (§ 13353 et seq.) does not contain any provision specifically referring to out-of-state convictions as does section 13352, relating to a suspension following a criminal conviction. (§ 13352, subd. (d).) His arguments are without merit.

The Compact’s provisions expressly refer to, without qualification, efforts by the licensing authority to suspend, revoke or limit a license. (§ 15023, subd. (a).) Its provisions do not distinguish between the DMV’s actions taken pursuant to either criminal or administrative proceedings. Although

Under a separate statute, Colorado makes it unlawful to “driv[e] under the influence,” which requires a driver be “substantially incapable” of safe operation of a vehicle. (C.R.S. § 42-4-1202(l)(f); see Barnes v. People (Colo. 1987) 735 P.2d 869 , 871-872, fn. 2 [under Colorado law, a defendant is considered “ ‘under the influence of intoxicating liquor’ ” if the degree of influence is “ ‘substantial so as to render the defendant incapable of safely operating a vehicle’ ”].) That offense is generally based on a BAG of .10 percent or greater. (See Barnes v. People, supra, 735 P.2d at pp. 872-873 [.10 percent or greater BAG creates permissive inference that the defendant was under the influence of alcohol].)

Referring to both statutes, the Colorado Supreme Court recently pointed out that by enacting the legislation, Colorado’s General Assembly “sought to foster public safety by discouraging individuals from driving while under the influence of alcohol” and cited cases recognizing that “ ‘the health, safety and welfare of [citizens] ... are endangered by those who drive while under the influence of intoxicating liquors. . .’” (People v. Swain, supra, 959 P.2d at p. 429, citing People v. Rister (Colo. 1990) 803 P.2d 483 , 487 [recognizing that “[i]t is beyond debate that drunken driving is a serious problem, and that the state has a substantial interest in preventing the loss of life and damage to property caused by drunk drivers”].)

C. The California Statutes

California does not have a law identical to Colorado’s “driving while ability impaired” statute. Section 23152 provides: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.[¶] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” (§ 23152, subds. (a), (b).)

CALJIC No. 16.831 defines the term “under the influence” for purposes of section 23152. It provides in part: “A person is [under the influence of an alcoholic beverage] . . . when as a result of [drinking such alcoholic beverage] . . . [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” (See People v. Weathington (1991) 231 Cal.App.3d 69 , 81 [ 282 Cal.Rptr. 170 ]; People v. Schoonover (1970) 5 Cal.App.3d 101 , 107 [ 85 Cal.Rptr. 69 ] [CALJIC No. 16.831 properly defines “under the influence of intoxicating liquor”].)

Under section 23152 “ ‘it is not necessary to prove any specific degree of intoxication, but... the question whether the accused was “under the influence of intoxicating liquor” is a question of fact to be determined by the court or jury from all the proven circumstances of the case. . . (People v. Weathington, supra, 231 Cal.App.3d at p. 81, quoting People v. Torres (1959) 167 Cal.App.2d 36 , 38 [ 333 P.2d 787 ].)

D. Analysis

We treat McDonald’s guilty plea to the Colorado offense of driving while ability impaired as a conviction. (§ 13103.) Because McDonald was not convicted of the separate offense of driving under the influence of alcohol in Colorado, we do not apply subdivision (a)(2) of section 15023. Instead, we must apply either subdivision (b) or subdivision (c) of section 15023. Under either standard, California law requires the DMV to give effect to the Colorado conviction if the Colorado DWAI law is substantially similar in substance, interpretation and enforcement to section 23152. (§ 13363, subd. (b).) Black’s Law Dictionary defines “substantially” in part as “Essentially ... in the main . . . materially; in a substantial manner.” (Black’s Law Diet. (5th ed. 1979) p. 1281.) “Similar” is defined in part as “having a general likeness, although allowing for some degree of difference.” (Id. at p. 1240.)

Considering the important remedial purposes of the Compact and the Legislature’s edict that it be liberally construed, we conclude that Colorado’s DWAI law is substantially similar to section 23152 to permit its use as a license suspension enhancement under section 13353.3. Generally, both statutes are misdemeanors and both are aimed to deter and punish drivers under the influence of alcohol. More specifically, the Colorado DWAI law and section 23152 both require that impairment be found when, due to ingesting alcohol, a driver’s control of a vehicle is less than would be expected by a reasonably prudent driver.

McDonald argues the statutes are not similar because they have different standards. Colorado’s DWAI law, he argues, punishes an individual who is “affected to the ‘slightest degree’ but still [is] able to exercise the caution characteristic of an ordinary sober person,” whereas section 23152 punishes persons affected to the extent they are unable to drive as an ordinary sober person. We disagree with McDonald’s interpretation of the Colorado statute. A person who is driving when affected by alcohol “to the slightest degree so that he is less able than he ordinarily would have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due

care in the safe operation of a vehicle” necessarily is impaired or hampered to an extent that person is less able to safely drive. In other words, a person cannot be convicted of the offense in Colorado absent an inability to drive as safely as he or she ordinarily would be able to do as an ordinary sober person. If reduced ability to drive safely were not a factor, enforcement of the law could lead to absurd results, such as convicting a person for driving with a truly de minimis blood-alcohol level. We would reject such an interpretation. {People v. Clark (1990) 50 Cal.3d 583 , 605 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ] [in construing a statute susceptible to more than one meaning, the court will adopt the meaning that is reasonable and reject the one that would lead to an unjust and absurd result].) As to section 23152, subdivision (a), McDonald fails to recognize that a person less able to drive as an ordinary person is still a person that cannot drive as an ordinary person. Conduct that violates Colorado’s DWAI law therefore can constitute a violation of section 23152, subdivision (a) in California, which requires that, as a result of drinking alcohol, the driver be impaired to the extent he or she cannot drive with the caution of a sober person using ordinary prudence.

The differences between the Colorado and California statutory schemes, including the varying levels of impairment, do not prevent us from reaching this conclusion. The fact that the DWAI law is a lesser included offense to Colorado’s driving under the influence statute is irrelevant. Apart from comparing the laws, our analysis includes looking at the conduct prohibited by the statute to determine whether it may be illegal under section 23152. Likewise, McDonald’s focus upon the statutes’ varying presumptions is misplaced. Even if McDonald’s BAC in Colorado was below 0.08 percent, he could still be found guilty of a violation of section 23152, subdivision (a) in California. A BAC of 0.08 percent or more only gives rise to a presumption that the person was under the influence of alcohol at the time of the alleged offense. (§23155, subd. (a)(3); Yordamlis v. Zolin (1992) 11 Cal.App.4th 655 , 661, fn. 5 [ 14 Cal.Rptr.2d 225 ].)

We finally reject McDonald’s contention that we must apply the test used in criminal cases to determine whether a prior foreign conviction can be considered a qualifying prior conviction under the “Three Strikes” law. (See People v. Woodell (1998) 17 Cal.4th 448 , 453 [ 71 Cal.Rptr.2d 241 , 950 P.2d 85 ], People v. Rodriguez (1998) 17 Cal.4th 253 , 262 [ 70 Cal.Rptr.2d 334 , 949 P.2d 31 ].) Under that test, the court determines whether the prior foreign offense “ ‘involved conduct which satisfies all of the elements of the comparable California offense.’ ” {People v. Woodell, supra, 17 Cal.4th at p. 453.) Not only are we dealing with a different test (we determine substantial similarity of laws rather than compare the conduct with the offense to find equivalent elements), but the matter involves a sanction that is civil, not