Kriesel v. McCarthy

BURKE, P. J. Respondent, the Director of the Department of Motor Vehicles, revoked petitioner’s motor vehicle operator’s license. Petitioner, by petition for writ of mandate in the superior court, sought to set aside the order of revocation. Trial was had on the record of the administrative proceedings previously held before the Department of Motor Vehicles. The court upheld the administrative order and entered findings of fact and conclusions of law supporting such decision. This appeal is from such judgment.

The administrative proceedings had been initiated by service upon petitioner of a “Notice of Proposed Action, Grounds Therefor, and Opportunity to be Heard. ” Petitioner appeared at a formal hearing and was represented by counsel. The referee rendered his findings of fact, found petitioner responsible for a collision causing death of a pedestrian, found him to be a negligent driver, and recommended invocation of his driver’s license.

Thereupon, respondent revoked petitioner’s license to drive. Petitioner filed his petition for writ of mandate alleging respondent’s findings were not supported by the evidence in that (1) petitioner had not received a sufficient traffic violation point count to classify petitioner as a negligent driver as defined by section 12810 of the Vehicle Code, and (2) that there is no statutory authority for revoking petitioner’s operator’s license by reason of petitioner’s involvement in a fatal vehicle accident.

[71]It is undisputed that the “point count” of petitioner was not sufficient to render him “prima facie” a negligent driver under section 12810 of the Vehicle Code. But petitioner’s driving record, culminating in a fatal vehicle accident, was duly exposed before the Motor Vehicle Department and the superior court and the finding that petitioner was a negligent driver is completely justified and supported by the record. On December 31, 1956, petitioner received a written warning from the department in connection with a conviction for speeding. On July 2, 1957, August 29, 1958, and on October 2, 1959, he was again convicted of speeding. On August 23, 1960, petitioner struck and killed a pedestrian in a crosswalk, as a result of which he was convicted of the violation of section 23104 (reckless driving involving bodily injury) and fined $285 in the municipal court.

Section 12810 of the Vehicle Code provides in part: “Any person whose driving record shows a violation point count of four or more points in 12 months, six or more points in 24 months, or eight or more points in 36 months shall be prima facie presumed to be a negligent operator of a motor vehicle.” As a result of petitioner’s driving record, reflecting the aforementioned violations, his negligent driver point count was only three points in 12 months, four points in 24 months, and five points in 36 months.