Nicolino v. Cozens

Opinion

THE COURT

Appellant contends that the Department of Motor Vehicles was not authorized to suspend his driving privileges pursuant to subdivision (c) of section 13352 of the Vehicle Code where the trial court recommended that there be no suspension, after striking a prior conviction without an express determination as to its validity. He contends in the alternative that, if the department is so empowered to act under section 13352, the statute is an unconstitutional violation of separation of powers.

[1026]

Section 13210 of the Vehicle Code empowers the trial court to order no suspension under 13352 only in the case of a person who has been “convicted for the first time.” The apparent intent of the Legislature in providing specific administrative sanctions which the Department of Motor Vehicles is

obligated

to impose (see

Thomas

v.

Department of Motor Vehicles

(1970) 3 Cal.3d 335, 338 [90 Cal.Rptr. 586, 475 P.2d 858] and

Williams

v.

Department of Motor Vehicles

(1969) 2 Cal.App.3d 949 [83 Cal.Rptr. 76]) and expressly providing the court with authority itself to either impose this sanction only in the case of a first offense (Veh. Code, § 13201) or to prevent its imposition in the same instance is that the court’s power to prevent the mandatory sanctions should not extend to cases of multiple convictions.

The holding of

Mitchell

v.

Orr

(1969) 268 Cal.App.2d 813 [74 Cal.Rptr. 407] and. cases following it may be well reasoned with regard to prior convictions determined to have been constitutionally invalid, in light of