Plomteaux v. Department of Motor Vehicles

[179]Opinion

COLE (J. L.), J.* On March 11, 1974, the Department of Motor Vehicles (appellant) revoked the driving privileges of William James Plomteaux (respondent) pursuant to Vehicle Code section 13352, subdivision (e). The revocation was for a period of three years and was based on the fact that respondent had suffered three previous convictions of driving a motor vehicle under the influence of intoxicating liquor—violations of Vehicle Code section 23102 on November 8, 1968, and September 6, 1973, and of Penal Code section 367d on January 23, 1970.

The sole issue on this appeal is whether the Penal Code conviction was one for driving a motor vehicle while under the influence of intoxicating liquor within the meaning of Vehicle Code section 13352, subdivision (e). The trial coúrt’s reasoning as expressed in a minute order was that “Penal Code Section 367d has no relationship to driving on public streets or to that extent on licensing. . . .” Therefore only two convictions had been suffered' by respondent and the revocation was excessive punishment, the appellant being limited to suspending respondent’s driving privileges for one year on the basis of the two prior Vehicle Code convictions.

We disagree with the trial court’s reasoning and reverse the judgment granting a peremptory writ of mandate.

Wallace v. Department of Motor Vehicles (1970) 12 Cal.App.3d 356 [90 Cal.Rptr. 657], is dispositive. That decision squarely held that a violation of section 367d of the Penal Code was a conviction for driving a motor vehicle while under the influence of intoxicating liquor within the meaning of Vehicle Code section 13352, subdivision (c).1 We adopt the reasoning of that opinion.

In an attempt to avoid the effect of Wallace, respondent argues that in 1972 the Legislature repealed Penal Code section 367d. (Stats. 1972, ch. 92, § 1, p. 118.) He urges that this repeal indicated an attempt to change the meaning of the law espoused in Wallace. We do not so view the 1972 repeal.

[180]It is true “that where an amendment to a statute consists of a deletion of an express provision, the presumption is that a substantial change in the law was intended . . . that pertinent decisions may properly be considered as bearing upon the legislative intent and purpose in the adoption of an amendment [and that the] elimination of a statutoiy clause after the rendition of a decision affecting the law ... is to be regarded as an indication of legislative intent to change the meaning of the law or to obviate objections to it. . .” (Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 231-232 [273 P.2d 5].)