Utter v. Alexis

Opinion

KLINE, P. J. The Director of the State Department of Motor Vehicles (appellant) appeals after the San Mateo Superior Court granted respondent Angie Lee Utter’s petition for prohibition and ordered appellant to desist and refrain from suspending respondent’s driver’s license pursuant to Vehicle Code section 13352, subdivision (a)(1).1 We affirm the order of the superior court.

[196]Facts

On December 23, 1981, respondent was arrested for a violation of former section 23102, subdivision (a) (driving under the influence of alcohol). On January 5, 1982, a complaint was filed in municipal court charging respondent with violating former section 23102, subdivision (a).

On February 18, 1982, a legislative change occurred that is crucial to the sole issue addressed in this appeal. On that date, section 13352, subdivision (a)(1), (as amended by Stats. 1982, ch. 53, § 16) became effective as emergency legislation. (Stats. 1982, ch. 53, § 47.) The amended statute requires the Department of Motor Vehicles (DMV or Department) to suspend for six months the licenses of those convicted of their first offense of driving under the influence “if the court orders the department to suspend the privilege or if the court does not grant probation.” (§ 13352, subd. (a)(1), italics added.)2 By contrast, prior to the amendment a first time offender was subject to the six month suspension only if the court ordered the license suspended. (Former § 13352, subd. (a).)3

On March 10, 1982, respondent entered a plea of guilty to violation of section 23102, subdivision (a), and was fined $536. The judge, apparently relying on the law as it existed at the time of the offense (Dec. 1981), recommended that respondent’s license not be suspended, but did not grant probation. Thus, under the law as it existed at the time of the offense, the DMV was without authority to suspend respondent’s license because the court did not order suspension (former § 13352, subd. (a)); under the current statutory scheme, however, the DMV would be required to suspend respondent’s license since the court did not grant probation. (§ 13352, subd. (a)(1).) On April 12, 1982, the DMV issued an order suspending respon[197]