Opinion
Hearing Granted Aug. 9, 1984.
Opinions on pages 971-990 omitted.
[204 Cal.Rptr. 27]John K. Van de Kamp, Atty. Gen., and Marilyn K. Mayer, Deputy Atty. Gen., for defendant and appellant.
Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Stuart Alan Chapman and John Hamilton Scott, Deputy Public Defenders, for plaintiff and respondent.
WOODS, Presiding Justice.
Appellant, Department of Motor Vehicles, appeals from a judgment directing the department to vacate and set aside an order suspending respondent Jose Enrique Perez's driving privilege pursuant to Vehicle Code section 13352, subdivision (a)(3). We affirm.
All statutory references are to the Vehicle Code unless otherwise indicated.
Jose Enrique Perez was arrested for driving while intoxicated (§ 23102, subd. (a) ) on December 3, 1981. On May 26, 1982, he was convicted upon a plea of guilty; he also admitted a prior conviction for the same offense in 1979. Respondent agreed to participate in an approved alcohol rehabilitation program. Subsequently, he was sentenced to 30 days in jail, placed on probation for 36 months, ordered to pay a $390 fine, and to present proof of completion of an approved alcohol rehabilitation program. No restriction on the use of his driver's license was ordered.
Section 23102 was renumbered section 23152 and amended by Statutes of 1981, chapter 940, page 3567.
Pursuant to Health and Safety Code section 11837 et seq. (previously § 11851), an "SB 38" program.
At the time of the second offense in December 1981, former section 13352 required the Department of Motor Vehicles to suspend a person's driver's license for one year upon a second conviction for drunk driving within five years. Section 13352.5 provided an exception, that a defendant's license would not be suspended [204 Cal.Rptr. 28] by the department if the court certified to the department that the defendant was participating in an approved treatment program. (Stats.1978, ch. 954, § 2, p. 2954.) At the time of Perez's conviction, however, under amended section 13352.5, suspension of a driver's license became mandatory upon a second conviction of violating section 23152 unless the court certified to the DMV that as conditions of probation defendant had (a) participated in a treatment program; (b) paid a fine; (c) served 48 hours in jail; (d) been placed on three years' probation; and (e) been restricted to drive only to work and to the treatment program. (Stats.1982, ch. 53, § 17, pp. 167-169; Stats.1982, ch. 53, § 31, pp. 174-175.) Perez received the first four conditions but not the fifth.
At the time of the offense, section 23165 did not require license suspension for two offenses in five years. (Stats.1981, ch. 941, § 8, p. 3592.) Effective February 1982, amended section 23165 required suspension pursuant to section 13352, subdivision (a)(3).
Upon receiving the abstract of conviction, the department ordered respondent's driver's license to be suspended for one year, as the law in effect at the time of the conviction required.
On November 28, 1982, respondent petitioned for a writ of mandate in the superior court. The superior court issued an alternative writ of mandate and stay order on November 30, 1982. Upon a hearing, the court below ordered a peremptory writ of mandate as prayed. The judgment stated that the "Department of Motor Vehicles acted in excess of its jurisdiction in suspending [Perez's] driver's license under the authority of Vehicle Code section 13352, subdivision (a)(3), since [Perez] has consented to participate and is participating in a program for alcohol rehabilitation and treatment pursuant to Vehicle Code section 13352.5." A motion for a new trial was denied and this appeal timely followed.
He had originally sought relief from the Court of Appeal which denied it on the grounds that he had not exhausted his remedies in the superior court.
I
Appellant contends that it properly relied on section 13352, subdivision (a)(3) to suspend respondent's license because the Legislature intended retroactive application, and that such suspension does not violate the constitutional prohibition against ex post facto laws. Respondent counters that the amendments which were not effective at the time of the offense may not be lawfully applied to him because the Legislature has not clearly expressed an intention to retroactively apply the amendments. Respondent further argues that even if such an intention had been expressed, its application to respondent is constitutionally prohibited. We agree with respondent's first contention that the amendment was not intended to be retroactively applied; therefore, we need not address the ex post facto issue.
II
Appellant's first argument that it acted pursuant to legislative mandate is based on the language of the new section 13352. The department is required by the statute to suspend or revoke a driver's license "immediately ... [u]pon a conviction or finding...." (Emphasis added.) Its duty to suspend does not arise until it has received a certified copy of the record of conviction of section 23152. Thus, appellant argues that "[a] construction requiring suspension only if the latest offense, or all offenses, occurred after the effective date cannot be reconciled with the direction that the Department act 'upon a ... conviction,' and would serve to forestall the implementation of the statute in individual cases until long after the date of its enactment."
Our analysis of this language begins with basic rules of statutory construction. Legislation that deprives an individual of a preexisting right will not be given retroactive effect unless the Legislature has clearly expressed its intention to do so. (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 520, 143 Cal.Rptr. 247, 573 P.2d 465.) Driving a motor vehicle is both a privilege (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 74, 177 [204 Cal.Rptr. 29] Cal.Rptr. 566, 634 P.2d 917), and a vested right (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396, 188 Cal.Rptr. 891, 657 P.2d 383). While not a "fundamental" right for due process and equal protection purposes, the right to drive is sufficiently fundamental, because of its importance to the individual, that an independent judgment standard of review is applied to an administrative decision suspending that right. "In our present travel-oriented society, the retention of a driver's license is an important right to every person who has obtained such a license." (Berlinghieri v. Department of Motor Vehicles, supra, at p. 398, 188 Cal.Rptr. 891, 657 P.2d 383.)
Since respondent's right to drive was a preexisting right, there must be a clearly expressed legislative intention to retroactively deprive him of it. The Legislature is aware of the rule and, as a consequence, uses clear language to indicate retroactive application whenever that is intended. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629; but see In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371.)
We do not find the language cited by appellant to be compelling evidence of legislative intent to apply the restricted conditions for probation to offenses committed prior to the effective date of the statute. The language refers to the DMV's ministerial duties; it does not specify whether the conduct upon which the conviction is based must have taken place before or after the amendment took effect. Appellant cites us to no legislative language which expressly indicates an intent to apply the new restriction to convictions for offenses committed before February 1982. Chapter 53 of the Statutes of 1982 does contain a continuity clause which requires the newly numbered statutes to be considered as continuations of prior law "insofar as they are renumbered without substantive change...." (Stats.1982, ch. 53, § 45, subd. (a), p. 180.) Since a new license restriction requirement has been added, there is a substantive change and the continuity clause is inapplicable.
III
Appellant urges that the Legislature intended no delay in implementing the new provisions of section 13352, subdivision (a)(3) because the amendment's purpose is to protect the public from drunk drivers. We do not look to the amendment's purpose, as a statute is interpreted by its objective only if the statute is ambiguous. (People v. Carroll (1970) 1 Cal.3d 581, 584, 83 Cal.Rptr. 176, 463 P.2d 400.) We find no ambiguity that would justify reliance on legislative purpose in the new provision of this statute.
Having found no legislative intent to retroactively apply the new legislation, we need not and do not consider whether, if such intent existed, its application would be constitutionally prohibited. " '[W]e do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.' " (Johnson v. Alexis (1983) 143 Cal.App.3d 82, 85, 191 Cal.Rptr. 529, quoting People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000.)
The judgment is affirmed.
KINGSLEY and McCLOSKY, JJ., concur.