Cozens v. Superior Court

Opinion

BROWN (Gerald), P. J.

Robert C. Cozens, Director of the Department of Motor Vehicles, petitions for a writ to restrain the superior court from enforcing its order prohibiting the department from suspending the driver’s license of the real party in interest, Dorothea R. Blaine, after her conviction for felony drunk driving (Veh. Code, §23101).

The petition is meritorious and should be granted for two reasons. First, the superior court does not have jurisdiction over the department in the proceeding in which the order was made. Second, the superior court does not have jurisdiction to prevent the department from performing its statutorily required duty to suspend Blaine’s license.

[443]

On December 21, 1971, a jury convicted Blaine of felony drunk driving, i.e., drunk driving causing bodily injury (Veh. Code, § 23101). On March 10, 1972, the court sentenced her to jail for one year, but suspended the sentence and placed her on probation. The order also states “. . . suspension of defendant’s license deemed to be automatic pursuant to Department of Motor Vehicle regulations; . .

On the same day, the court entered an order “staying execution of the order granting probation” pending termination of the cause in the appellate courts and allowed Blaine to remain at liberty on her own recognizance for that period. Blaine has appealed her conviction of felony drunk driving.

The court clerk prepared and forwarded to the Department of Motor Vehicles a certified copy of the abstract of the record (Veh. Code, § 1803). Following the duty imposed upon it by Vehicle Code section 13352, subdivision (b),

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on April 6, 1972 the department suspended Blaine’s driving privilege for one year. In response to the suspension, on May 2, 1972, Blaine returned to court and obtained a “Supplemental Stay Order.” It repeats some of the wording of the March 10 order staying execution of order granting probation, but adds: “This stay of execution will be effective for all purposes, and, specifically, it shall be effective relative to action by the Department of Motor Vehicles under Vehicle Code section 13352(b).”

Insofar as the supplemental stay order attempts to restrain the department from suspending Blaine’s license, it is void.