The Department of Motor Vehicles suspended petitioner's driver's license following his conviction of violating section 23102 of the Vehicle Code, which provides that the driving of a vehicle upon a highway by any person who is under the influence of intoxicating liquor is a misdemeanor.
The trial resulting in petitioner's conviction took place in the Los Angeles Municipal Court on October 21, 1959. After an inquiry which established that petitioner had not been involved in an accident in connection with the drunk driving violation and that he had not been previously arrested upon a similar charge, the court sentenced him to pay a fine and recommended that his license not be suspended.
The department on November 13, 1959, without notice or hearing, suspended petitioner's license for a period of 90 days commencing on October 21, 1959, and for an additional overlapping period effective November 27, 1959, through April 20, 1960. This order was made on the basis of an abstract of the court record which did not show that a recommendation against suspension had been made. The omission was called to the department's attention by petitioner at an informal hearing, and on February 24, 1960, after receipt of a corrected abstract, the department vacated the order of November 13 and made a new order suspending petitioner's driving privilege effective November 27, 1959, through April 20, 1960. Petitioner's driving record, produced at the informal hearing, showed that he was convicted in 1956 of violating former section 540, subdivision (b) of the Vehicle Code (relating to the manner of making a left turn) and in February 1959 of speeding at a rate of 49 miles per hour in a 35-mile zone in violation of former section 510.
The order of February 24 states that the suspension was made because of petitioner's conviction of driving while under the influence of intoxicating liquor and upon review of his driving record and that the action was taken in the interest
Both the court in which a person is convicted of driving while under the influence of intoxicating liquor and the Department of Motor Vehicles have statutory powers with respect to suspension of the operator's license of the person convicted. Section 13201 of the Vehicle Code provides that the court may suspend the privilege of any person to operate a motor vehicle, for a period not to exceed six months, upon conviction of misdemeanor drunk driving under section 23102.
Petitioner contends that section 13354 is rendered inapplicable here by subdivision (a) of section 13352, which provides that the department, upon receipt of an abstract of a court record showing a person's first conviction for misdemeanor drunk driving, shall immediately suspend his driver's license for a period of 90 days unless the court suspends the privilege under section 13201 "or recommends no suspension."
Statutory provisions relating to suspension or revocation of licenses by both the department and the courts have existed for many years. Insofar as concerns first convictions of misdemeanor drunk driving, substantially the same provisions regarding suspension by the department as now appear in sections 13352 and 13354 have existed since 1949. (Former §§ 307 and 306, respectively.) In a number of previous years the statutes made suspension or revocation mandatory. From 1919 until 1923 and from 1931 until 1949 the department was required to take such action (Stats. 1919, ch. 147, p. 225; Stats. 1931, ch. 1026, p. 2110; Vehicle Code of 1935, § 304 as enacted in 1935, § 307 as amended in 1937, 1939, 1941, 1943, 1945, and 1947.) In the intervening years, 1923 to 1931, it was mandatory for the court in which a person was convicted of
A number of other states have statutory provisions for mandatory suspension or revocation of an operator's license upon a first conviction of misdemeanor drunk driving. (For example, 13 Fla. Stats. Ann. (1958), § 322.26, (Supp. 1959), § 322.28; Ky. Rev. Stat. (1955), § 186.560; N.Y. Vehicle and Traffic Law (Supp. 1959), § 71; 1C Gen. Stats. of N.C. (1953), § 20-17, (Supp. 1959), § 20-19; 47 Okla. St. Ann. (1950), §§ 295, 297, (Supp. 1959), § 93; 19 Tex. Civ. Stat. (Vernon 1960), art. 6687b, § 24; 7 Code of Va. (1958 Replacement Volume), §§ 46.1-417 and 4 Code of Va. (1950), § 18-75, (Supp. 1958), § 18-77.) The Uniform Vehicle Code provides for mandatory revocation. (See Uniform Vehicle Code, 1956 revision, § 6-205, p. 59.) It thus appears that the present provisions of our Vehicle Code are less severe than some statutes in other jurisdictions as well as earlier statutes in this state.
The next question to be determined is whether the department has properly exercised the discretion conferred upon it by statute. It appears that upon being informed of a person's conviction of misdemeanor drunk driving the department suspends his license and that such action is taken without a prior hearing. The licensee is immediately notified that the Vehicle Code provides for a subsequent hearing (Veh. Code, § 14100),
The summary procedure provided for in section 13953 is an "alternative" to the notice and hearing procedure set forth in sections 13950, 13951 and 13952.
The alternative writ of mandate is discharged, and a peremptory writ is denied.
Traynor, J., White, J., and Dooling, J., concurred.
I agree with much that is said in the majority opinion. I particularly agree that section 13354 of the Vehicle Code gives to the department the discretionary permissive power to revoke or suspend a driver's license, in a proper case, after a first conviction of misdemeanor drunk driving, even though the trial court recommends to the contrary. I further agree that such discretionary authority exceeds the power to suspend or revoke conferred upon the courts, and that, in a proper case, the department may reject the recommendation of the trial court. It is also a proper interpretation of section 13953 of the Vehicle Code to hold that the director may exercise
But I cannot agree that it is a proper exercise of the discretionary power conferred by section 13354 for the director to determine in advance to suspend the license of every driver convicted for the first time of misdemeanor drunk driving, regardless of the circumstances of the particular case, and regardless of the recommendation of the trial court in that particular case. To condone such a procedure is to permit the director, by administrative fiat, to make suspensions under section 13354 mandatory and not discretionary in clear violation of the declared policy of the Legislature to the contrary. By administrative fiat the director has completely nullified the provisions of section 13352, subdivision (a), and other sections of the Vehicle Code. This is not a proper exercise of administrative power.
That the director has determined in advance that he will automatically suspend, at least, the license of every person suffering a first conviction of misdemeanor drunk driving, and that he, in fact, without exception, has adopted and applied this policy, are admitted facts. This is not only correctly stated in the majority opinion, but has been frequently announced by the director in the public press, and a statement to that general effect is printed on the back of every order of suspension sent to each driver whose license is suspended. It is also admitted in the briefs filed in these cases. Moreover, at oral argument, counsel for the department fairly conceded that such a policy had not only been announced, but was being applied in every case, including the cases now before the court.
The department argues, and the majority approve the argument, that this automatic policy of suspension is a reasonable exercise of "discretion," and is justified because of the admitted dangers created on our highways by those driving under the influence of liquor. Statistics are quoted demonstrating to a certainty that, in the public interest, such activity should, if possible, be restrained. Unquestionably, those statistics are appalling. They demonstrate that the incidence of drunk driving citations is increasing. Those statistics also demonstrate that a high percentage of accidents are caused by persons driving while under the influence of liquor. It is obvious that the efforts of the department and of its director
That this is so is disclosed by an examination of the pertinent code sections. As the majority correctly point out, section 13352 provides for mandatory suspension for a period of 90 days upon a first conviction of misdemeanor drunk driving unless the court recommends, as it did in this case, that the license not be suspended. Section 13354, as already pointed out, confers the discretionary right upon the department to suspend upon a first conviction. No standards at all are provided in this section regulating the exercise of the discretion conferred.
It is quite obvious that the "discretion" to be exercised by the department under section 13354 is not, as the department contends and the majority hold, the authority to determine that general conditions require a general policy applicable to all cases. The "discretion" conferred is quite clearly the authority to determine, in each individual case, and under the facts peculiar to that case, whether action beyond that taken by the court is necessary to protect the public.
Quite obviously, the Legislature did not provide or intend that there should be an automatic mandatory suspension in
The only possible and reasonable interpretation of this section is that the Legislature had some purpose in mind when it provided that the court might make a recommendation against suspension, and that, if such a recommendation was made, the mandatory suspension provisions should not apply. Obviously, the Legislature must have intended that the recommendation of the trial judge, and the reasons underlying it, would be considered and weighed by the department before it
The power granted to the court to recommend that the department not suspend a particular license necessarily indicates that the Legislature must have intended suspension or revocation to be determined on an individual basis. The court has tried the individual defendant. Its recommendation is made on the basis of the particular facts and record before it. If the Legislature had intended that the department could assess predetermined automatic penalties rather than deciding that suspension, or the lack thereof, was proper in a given case, it would not have provided that the court could recommend against suspension if a particular case warranted such consideration. The very fact that there is provision for recommendation in individual cases by the courts, indicates that the Legislature intended that individual consideration should be given to each case before departmental action of any kind is to be taken.
It can be assumed that the Legislature was fully aware of the seriousness of the problem of intoxicated drivers. With this in mind, it nevertheless provided for consideration of each case on its merits. The department should not be permitted to overrule this legislative policy by determining that no individual consideration shall be given other than to determine the extent of the penalty to be assessed. It is for the Legislature to determine the nature of the discretion to be exercised by an agency, and the agency must act reasonably within the limits imposed. It is, of course, the law that an administrative agency cannot alter or amend the scope of a statute by administrative rule. (Whitcomb Hotel, Inc. v. California Emp. Com., 24 Cal.2d 753 [151 P.2d 233, 155 A.L.R. 405].)
It must also be remembered that, while suspension is permissible prior to a hearing, the statute confers on the driver the right to a hearing, if he so desires (§ 14100). A "hearing," at least in the absence of statutory limitation, constitutionally means a real and full hearing. That means, as a minimum, a hearing at which the accused has the opportunity to show that the penalty should not be imposed. There is nothing in our law to authorize a star chamber proceeding in which the accused is prejudged. Certainly, there is nothing in any section of the Vehicle Code to indicate that the hearing is to be a limited hearing (even if the Legislature could so provide) in which the department is to do no more than determine whether there was a conviction, and, if so, decide the extent of the penalty to be imposed. In the absence of such specific limitations, the department must grant defendant a full hearing in which he can show not only that a lesser penalty should be imposed but also that there should be no penalty at all. Under the present departmental policy the defendant cannot make this showing. The department has predetermined that the license will be suspended for some period of time, and there is no way in which the defendant can offer evidence to mitigate the imposition of this basic penalty.
This type of hearing is neither fair nor constitutional. In Moore v. State Board of Equalization, 76 Cal.App.2d 758 [174 P.2d 323], an attack was made upon the type of hearing there afforded the petitioner. In holding that the type of hearing involved was lawful the court stated (p. 764): "... it is clear that at a board hearing a licensee would have every opportunity, as this appellant had, to make a full showing by way of mitigation, excuse or avoidance, which showing of course would be addressed to the board's discretion in the
No case has been cited that permits an administrative board to exercise its statutory "discretion" in advance as the department in these cases has done. The only authorities that have considered the problem have held to the contrary. Thus in Bank of Italy v. Johnson, 200 Cal. 1 [251 P. 784], the court clearly held that an administrative agency cannot, by its own rules, circumscribe the exercise of its statutory discretion. In that case, the Bank Act provided that no branch bank could be opened without the approval of the bank superintendent, and it was further provided that such approval should be granted only when "public convenience and advantage" would be served thereby. The superintendent of banks announced that he would not grant a permit for a branch bank where the principal office of the bank was not also located in the same city, unless the applicant showed that public convenience and necessity required it. The court upheld this policy because the rule merely forewarned applicants that, in certain circumstances, they would have the burden of proof. But the court was careful to point out that the rule itself did not tie the hands of the superintendent in advance, as does the rule here involved. In the Bank of Italy case the rule, by express terms, permitted the superintendent to give his approval if the applicant sustained its burden. The court stated (200 Cal. at p. 15): "... [T]he superintendent ... may not by the adoption of any rule of policy or procedure so circumscribe or curtail the exercise of his discretion under the statute as to prevent the free and untrammeled exercise thereof in every case, ..." (Emphasis added.)
In the instant case, the department, by its own admission, has formulated a policy which prevents the "free and untrammeled exercise" of its discretion "in every case." It has predetermined that certain minimum action will be taken regardless of the existence or nature of the extenuating circumstances which may exist in that case. It has attempted to alter the
For these many reasons, it is obvious that petitioner's legal rights have been materially and illegally impaired. In my opinion, the writ of mandate should issue ordering the director to set aside petitioner's order of suspension, and to grant to him the hearing provided by law.
I am impelled to agree with the dissenting conclusion announced by Mr. Justice Peters but in reaching such view I find it unnecessary to consider, and my concurrence does not extend to, the areas wherein his dissenting opinion expresses accord with the views of the majority.
In resolving the issues here presented I deem it imperative not to lose sight of or transgress the established principles that "`The use of highways for purposes of travel and transportation is not a mere privilege, but a common and fundamental right, of which the public and individuals cannot rightfully be deprived...' [but that] `The use of the public highways by motor vehicles, with its constant dangers, renders the reasonableness and necessity of regulation apparent.'" (Escobedo v. State of California (1950), 35 Cal.2d 870, 875-876  [222 P.2d 1]; italics added.)
With fidelity to the above quoted principles I can and do concur in the conclusion of Justice Peters, and in the reasoning supporting this conclusion, that in the circumstances of this case "petitioner's legal rights have been materially and illegally impaired" and that "mandate should issue ordering the director to set aside petitioner's order of suspension."
McComb, J., concurred.
Petitioner's application for a rehearing was denied June 29, 1960. Schauer, J., McComb, J., and Peters, J., were of the opinion that the application should be granted.
"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 driving a motor vehicle while under the influence of intoxicating liquor. The suspension or revocation shall be as follows:
"(a) Upon a first such conviction other than under Section 23101 [felony drunk driving] such privilege shall be suspended for a period of 90 days, unless the court in case of the first conviction only suspends such privilege under authority of Section 13201 or recommends no suspension.
"(b) Upon a first such conviction under Section 23101 such privilege shall be suspended for one year and shall not be reinstated until such person gives proof of ability to respond in damages as defined in Section 16430.
"(c) Upon a second such conviction within seven years, such privilege shall be suspended for one year and shall not be reinstated unless and until such person gives proof of ability to respond in damages as defined in Section 16430.
"(d) Upon a second such conviction under Section 23101 within three years, such privilege shall be permanently revoked.
"(e) Upon a third or subsequent such conviction within 10 years such privilege shall be revoked and shall not be reinstated for a period of three years and until such person files proof of ability to respond in damages as defined in Section 16430."
Section 13356 provides that upon the "recommendation" of the judge of a juvenile court the department "shall" revoke or suspend the driving privilege for certain designated offenses, and the language of the section plainly shows that this recommendation is given a mandatory effect.
In section 13358 it is stated that upon the "recommendation" of the judge or referee of a juvenile court or of a juvenile probation officer of a county the department "may" suspend or revoke the driving privilege of any minor within the jurisdiction of the court, thus clearly granting a discretionary power.
Section 13208 provides that in certain criminal proceedings the court may, in its discretion, "recommend" to the department that an investigation be made to determine whether a license should be suspended or revoked.
"(a) That the licensee has been involved as a driver in any accident causing death or personal injury or serious damage to property.
"(b) That the licensee has been involved in three or more accidents within a period of 12 consecutive months.
"(c) That the licensee is a reckless, negligent, or incompetent driver of a motor vehicle.
"(d) That the licensee has permitted an unlawful or fraudulent use of his driver's license.
"(e) That any ground exists for which a license might be refused."
Section 13801 provides: "In addition to the investigation, the department may require the re-examination of the licensee, and shall give 10 days' written notice of the time and place thereof. If the licensee refuses or fails to submit to the re-examination, the department may peremptorily suspend the driving privilege of the person until such time as the licensee shall have submitted to re-examination. The suspension shall be effective upon notice."
Section 13951 provides: "Whenever the department proposes to refuse to issue or renew a driver's license, it shall notify the applicant of such fact and give him an opportunity to be heard."
Section 13952 provides: "The notice shall contain a statement setting forth the proposed action and the grounds therefor, and notify the person of his right to a hearing as provided in this part, or the department, at the time it gives notice of its intention to act may set the date of hearing, giving 10 days' notice thereof."