Fearn v. Zolin

Thereafter, Fearn requested a hearing on the administrative per se order of suspension. He challenged the suspension of his license on an alleged conflict between the administrative per se laws mandating a one-year suspension for second offenders and preexisting second-offender probation statutes which provide for licensure restriction rather than suspension. The DMV upheld the administrative suspension.

Fearn filed a petition for writ of mandate with the superior court. He did not contest the factual basis for the licensure suspension but contended, first, the mandatory language of section 13352.5, “. . . the department shall not suspend . . . but shall restrict the privilege of any person to operate a motor vehicle . . .” must prevail over the language of the administrative per se suspension statute, section 13353.2. Second, the 18-month suspension imposed pursuant to sections 13352, subdivision (a)(3) and 13352.5, subdivision (d) was illegal and violated his due process rights because the DMV refused to accept, within the applicable time limits, the documentation necessary for Fearn to obtain a restricted license pursuant to the terms of his probation. Third, imposing multiple penalties for the same offense was unconstitutional. The DMV opposed the petition. After a hearing, the court granted the petition apparently concluding that section 13352.5, subdivision (a), which authorized licensure restriction as a condition of probation, prevailed over sections 13353.2 and 13352, which mandated administrative suspension. This appeal followed.

Discussion

1. Does section 13353.2 conflict with sections 13352.5 and 23166?

In Robertson v. Department of Motor Vehicles (1992) 7 Cal.App.4th 938 [ 9 Cal.Rptr.2d 319 ]) the court considered the identical issue raised here and concluded the administrative per se laws and the preexisting second offender statutes do not conflict. The court held that the Legislature, in enacting those statutes, contemplated two processes—one involving court proceedings and criminal in nature, the other involving administrative proceedings and civil in nature. The processes are, for the most part, intended to

We agree with the Robertson court’s reasoning and find it dispositive of this issue. Accordingly, when a second offender such as Fearn suffers both the administrative suspension of his driving privileges and probation and licensure restriction pursuant to a criminal proceeding, the following disposition is appropriate. The criminal and civil dispositions run concurrently; 12 of the 18 months of probation and license restriction run concurrently with the 12-month administrative suspension, with suspension being the controlling disposition during the period. At the conclusion of the one-year suspended term, the remaining six-month portion of the restricted term shall continue to run. (Robertson v. Department of Motor Vehicles, supra, 7 Cal.App.4th at p. 948.)

2. Does imposing two licensure suspensions for one offense violate the proscription against double punishment or respondent’s due process rights?

Fearn contends the imposition of an administrative licensure suspension as well as a criminal licensure suspension violates Penal Code section 654’s proscription against multiple punishment and his due process rights.

Penal Code section 654 states in part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .” The section applies to penal provisions of other codes despite its apparent limitation to “this” Penal Code. (People v. Smith (1984) 155 Cal.App.3d 1103 , 1153 [ 203 Cal.Rptr. 196 ].)

Penal Code section 15 defines “punishments” or penal sanctions as:

“A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is. annexed, upon conviction, either of the following punishments:

“1. Death;

“2. Imprisonment;

“3. Fine;

“4. Removal from office; or

“5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State.”

A license suspension is not among the punishments listed in Penal Code section 15 and thus is not a penal sanction within the meaning of Penal Code section 654.

Further, Penal Code section 9 provides: “The omission to specify ... in this Code any . . . penalty ... or other remedy imposed by law and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, does not affect any right to recover or enforce the same.” The administrative per se suspension of driving privileges “is a civil matter which is independent of the determination of the person’s guilt or innocence ... in the criminal proceeding.” (§ 13353.2, subd. (e).)

People v. Smith, supra, 155 Cal.App. 1103 and People v. Morris (1965) 237 Cal.App.2d 773 [ 47 Cal.Rptr. 253 ], on which Fearn relies, are inapposite. Both cases address whether multiple punishments can be imposed when defendant’s single act constitutes more than one offense. That is not the case here. As a result of his driving with a BAC greater than .08 percent, Fearn was convicted of one offense but is subject to both the criminal and administrative consequences of his act. The criminal punishment and administrative sanctions which are imposed on a person convicted of drunk driving serve a different purpose. (Sanchez v. Alexis (1982) 131 Cal.App.3d 709 , 715 [ 182 Cal.Rptr. 593 ]; cf. Hough v. McCarthy (1960) 54 Cal.2d 273 , 282 [ 5 Cal.Rptr. 668 , 353 P.2d 276 ].) Both are authorized by Penal Code section 9.

That the DMV is responsible for enforcing both the administrative and the criminal licensure suspensions is immaterial. Regardless of the enforcing agency, one suspension is a criminal penalty involving a court order and the other is an administrative sanction. Therefore, Penal Code section 654 does not preclude the imposition of separate driver’s license suspensions by the court and the DMV.

By parity of reasoning, the state does not violate due process by imposing both criminal and civil penalties for the same act or omission. (Peretto v. Department of Motor Vehicles (1991) 235 Cal.App.3d 449 , 462 [ 1 Cal.Rptr.2d 392 ], citing United States v. Ward (1980) 448 U.S. 242 , 250 [ 65 L.Ed.2d 742 , 750, 100 S.Ct. 2636 ].) Fearn’s reliance on Walsh v. Kirby (1974) 13 Cal.3d 95 [ 118 Cal.Rptr. 1 , 529 P.2d 33 ] and Cohan v. Department of Alcoholic Bev. Control (1978) 76 Cal.App.3d 905 [ 143 Cal.Rptr. 199 ], is misplaced. In Walsh v. Kirby, the Department of Alcoholic Beverage Control

Walsh is clearly distinguishable from this case. In enacting the administrative per se statutes in light of the preexisting second-offender probation laws, the Legislature contemplated two essentially independent proceedings —one criminal and one administrative—to address the strong public concern regarding the drunk driver and safety on the highways. Rather than defeating the purpose of the underlying statutes, imposition of separate suspensions under each proceeding fosters their independent purposes. (Robertson v. Department of Motor Vehicles, supra, 7 Cal.App.4th at pp. 947-948.) Thus, unlike the department’s imposition of penalties in Walsh, the DMV’s suspension of Fearn’s license was not contrary to the purposes of the administrative per se laws and did not constitute a denial of due process.

In Cohan v. Department of Alcoholic Bev. Control, supra, 76 Cal.App.3d 905 , the court held it was a denial of due process to multiply the grounds for discipline by imposing a condition on a license which duplicated a department rule arid then separately penalizing the licensee with a suspension for each violation. (Id. at pp. 908, 911.) The court’s holding was based on its conclusion the department had no statutory authority to impose multiple penalties for conduct which violated both a condition and a rule. (Id. at p. 910.) To the contrary in this case, the Legislature expressly provided for both criminal and administrative penalties for those who drive under the influence of alcohol. Thus, the imposition of both administrative and criminal licensure suspensions in Feam’s case did not violate his due process rights.