ROBERT D. HOUGH, Pеtitioner, v. ROBERT McCARTHY, as Director of Motor Vehicles, Respondent.
L. A. No. 25775
In Bank
June 2, 1960
June 29, 1960
273-294
Appellants’ petition for a rehearing was denied June 22, 1960. McComb, J., was of the opinion that the petition should be granted.
GIBSON, C. J.—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.1 Petitioner, contending that the department had no authority to take this action, seeks a writ of mandate compelling Robert McCarthy, as Director of Motor Vehicles, to set aside the order of suspension.
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 tо suspension of the operator‘s license of the person convicted.
Petitioner contends that
A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. (County of Placer v. Aetna Cas. etc. Co., 50 Cal.2d 182, 188-189 [323 P.2d 753]; Estate of Stevens, 27 Cal.2d 108, 119 [162 P.2d 918]; County of Los Angeles v. Frisbie, 19 Cal.2d 634, 641-642 [122 P.2d 526]; Southern Pac. Co. v. Railroad Com., 13 Cal.2d 89, 100 [87 P.2d 1055].) This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject. (See Pierce v. Riley, 21 Cal.App.2d 513, 518 [70 P.2d 206]; Cohn v. Isensee, 45 Cal.App. 531, 536-537 [188 P. 279].)
We do not find any language in the statutes which would justify a conclusion that the “unless” clause in subdivision (a) of
Even as to cases where the court is silent concerning suspension and the department therefore has a mandatory duty to suspend for 90 days under subdivision (a), there is no provision that imposition of the mandatory suspension exhausts the power of the department to act or precludes it from increasing the length of the suspension period or from revoking the license under its permissive powers. The effect of
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; 10 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.
Petitioner asserts that the suspension of his license constitutes the imposition of a criminal sanction and that, in view of the penalty fixed by the court, it amounts to double punishment. Although there is an element of punishment involved when an administrative agency regulates conduct by means of suspending licenses, the language of the statutes, as pointed out above, shows that the Legislature intended to give both the department and the court power to impose suspensions. In effect, what the Legislature has done is to declare that a person upon his first conviction of misdemeanor drunk driving may be deprived of the privilege of driving a car unless the department as well as the court permits him to do so. As we have seen, the presеnt statutes are less severe than the provisions for mandatory suspension or revocation which formerly existed in this state and which are found in some other jurisdictions, and we cannot properly hold that the legislative plan is unreasonable.
There is no merit in petitioner‘s contention that the powers granted to the department under
The next question to be determined is whether the depart-ment 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 fоr a subsequent hearing (
With respect to the power of the department to act without a prior hearing,
The summary procedure provided for in
Suspension or revocation of a driver‘s license without a prior hearing does not violate due process where the action is justified by a compelling public interest. (Escobedo v. State of California, 35 Cal.2d 870, 876-877 [222 P.2d 1].) Such a public interest in the immediate suspension of licenses of persons convicted of drunk driving is shown by the factors which the director has taken into consideration. The order suspending petitioner‘s license shows that the director relied upon the administrative determination that ordinary methods of persuasion have failed to stop the increase in accidents due to drunk driving and that the frequency of such accidents will be enhanced by increased congestion on the highways. In 1959 there were 31,763 convictions of first offense drunk driving in California, and the courts recommended no suspensions in 19,171 of those cases. Between July 1, 1959, and February 25, 1960, a total of 11,418 suspensions and 2,858 revocations for drunk driving were ordered under the discretionary powers of the department. The incidence of death and serious injury on the highways has undeniably assumed tragic dimensions and has been due in a significant degree to the effects of alcohol upon drivers. So long as the measures adopted do not amount to a substantial invasion of individual rights, society must not be prevented from seeking to combat this hazard to the safety of the public. (People v. Duroncelay, 48 Cal.2d 766, 772 [312 P.2d 690].)
The court‘s recommendation, which is based upon circumstances relating to the individual and may be made without such specialized knowledge, is advisory only and should not be followed where, as here, the department, in the exercise of its discretion, determines that the public interest requires different action. This determination, of course, may be altered at any time if the director concludes that a change is warranted.
At present the number of convictions resulting from driving while under the influence of intoxicating liquor is appalling, and we cannot properly say that the director abused the discretion vested in him by
Petitioner contends that he was not afforded a fair administrative hearing within the meaning of sections 11500-11528 of the Government Code (a portiоn of the Administrative Procedure Act) because, he asserts, the department failed to follow certain requirements of that act.9 Subdivision (a) of
It is also claimed that petitioner is entitled to a de novo review of the evidence by this court and that the suspension order is against the weight of the evidence. He has, however, admitted that he was convicted of misdemeanor drunk driving and of the traffic law violations referred to above, and he has not shown any inaccuracy with respect to the recitals in the suspension order relating to accidents and traffic conditions on the highways or to the effect of driving while under the influence of intoxicating liquor. The matter of the penalty to be imposed in the light of the facts is committed to the discretion of the administrative agency. (Nardoni v. McConnell, 48 Cal.2d 500, 506 [310 P.2d 644]; Bonham v. McConnell, 45 Cal.2d 304, 306 [288 P.2d 502]; cf. Shepherd v. State Personnel Board, 48 Cal.2d 41, 51 [307 P.2d 4].) Under these circumstances there is no occasion for a triаl de novo.
The alternative writ of mandate is discharged, and a peremptory writ is denied.
Traynor, J., White, J., and Dooling, J., concurred.
PETERS, J.—I dissent.
I agree with much that is said in the majority opinion. I particularly agree that
But I cannot agree that it is a proper exercise of the discretionary power conferred by
That the director has determined in advance that he will automatically suspend, at leаst, 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,
It is quite obvious that the “discretion” to be exercised by the department under
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 casе 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 (
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 discrеtion “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.
SCHAUER, J.—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 [1] [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 lеgal 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.