Appellant Department of Motor Vehicles (DMV) appeals from a judgment granting a petition for writ of mandate directing the DMV to set aside the suspension of respondent Thomas Lee Childress’ commercial driver’s license. The DMV contends it is required to disqualify [*2] a driver’s commercial license if the driver operates a commercial vehicle with an excessive blood alcohol concentration. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Childress holds a Class A commercial driver’s license with hazardous materials and tank endorsements. On May 21, 2003, Childress was driving a commercial vehicle through the Donner Pass when a police officer stopped him for failing to display the appropriate fuel tax stickers. The officer smelled alcohol on Childress’ breath. Two preliminary alcohol screening device tests indicated his blood alcohol concentration was .115 percent. At the Nevada County jail, a breath test stated Childress’ blood alcohol concentration was .08 percent. Childress was arrested and charged with violating Vehicle Code section 23152, subdivisions (a) (driving under the influence of alcohol), (b) (driving a vehicle with a blood alcohol concentration of .08 percent or higher), and (d) (driving a commercial vehicle with a blood alcohol concentration of .04 percent or higher). 1
FOOTNOTES
1 All further statutory references are to the Vehicle Code unless otherwise indicated.
[*3] On July 8, 2003, Childress pled guilty to driving a vehicle with a blood alcohol concentration of .08 percent or higher in violation of section 23152, subdivision (b). The trial court suspended imposition of the sentence and granted conditional probation for three years. The trial court ordered Childress to serve two days in jail with one day credit for time served, pay a fine of $ 1,829.25, complete an alcohol program, and submit to chemical testing as requested by a police or probation officer. The trial court also ordered Childress’ driver’s license restricted for 90 days consecutive to the DMV’s administrative per se suspension. Apparently, an abstract of the court record was forwarded to the DMV stating that the vehicle involved in the offense was a commercial motor vehicle.
On August 20, 2003, the DMV notified Childress that he must surrender his commercial driver’s license for one year because DMV records showed that he had been “driving a commercial vehicle while under the influence of alcohol or a controlled substance.” Childress requested a hearing. The hearing was set for September 12, 2003. Childress could not attend on the scheduled date and requested a continuance. [*4] Apparently, Childress’ request was not received and the hearing was held on September 12, 2003, without his appearance. The DMV sent Childress a copy of the hearing officer’s findings and decision. The hearing officer found that Childress had violated section 23152, subdivision (b) and the order disqualifying his commercial license should be sustained. The DMV sent Childress a copy of the DMV’s decision to uphold the suspension of Childress’ commercial license.
On October 22, 2003, Childress filed a petition for writ of mandate for an order reinstating his license. After a hearing, the trial court granted the petition. On March 5, 2004, the trial court entered judgment granting a peremptory writ of mandate ordering the DMV to reinstate Childress’ commercial driver’s license. The DMV filed a timely notice of appeal.
DISCUSSION
Standard of Review
Resolution of an issue of statutory interpretation is a question of law which we review de novo on appeal. (Hamilton v. Gourley (2002) 103 Cal.App.4th 351, 356.) “‘The fundamental goal of statutory interpretation is to ascertain the intent of the Legislature so as to effectuate the purpose of [*5] the law. “In determining such intent, we first look to the words of the statute themselves, giving the language its usual, ordinary import. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.”‘ [Citation.]” (Ibid.)
Suspension of Commercial License
The DMV contends that if it receives a record showing a person has been convicted under section 23152, subdivision (b) of driving with a blood alcohol concentration of .08 percent, it is required to ascertain whether the person was driving a commercial vehicle at the time of the offense, and if so, suspend the driver’s commercial license for one year under section 15300. We disagree as to offenses occurring prior to September 20, 2005.
Prior to 1981, section 23102 made it illegal to drive while “under the influence” of alcohol. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 264, 198 Cal. Rptr. 145.) In 1981, the Legislature retained the “driving under the influence” statute, but renumbered it section 23152, subdivision [*6] (a). At the same time, the Legislature added section 23152, subdivision (b), which provided that it was unlawful to drive a vehicle with a specified blood alcohol concentration level. Several states had enacted similar statutes in response to a federal law requiring states to enact blood alcohol concentration level laws in order to receive certain federal highway funds. (Ibid.) Depending on the state’s statutory scheme, the enactments created either a new offense of driving with a specified blood alcohol concentration level, an alternative definition of “driving under the influence,” or a lesser included offense within driving under the influence. (Id. at pp. 264-265.) In Burg, our Supreme Court held that section 23152, subdivision (b) established a new and separate offense. (Id. at p. 265.)
Driving while under the influence of alcohol, as prohibited by section 23152, subdivision (a), is defined in the following terms: “‘”A person is [under the influence of an alcoholic beverage] . . . when as a result of [drinking the alcoholic beverage] . . . [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] [*7] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”‘” (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 360.) “In a [prosecution for driving under the influence], the question whether a person was under the influence of an intoxicating liquor is one of fact to be determined by the court or jury from all the circumstances of the case. [Citation.]” (Ibid.)
A conviction for violation of section 23152, subdivision (b) is not interchangeable with a conviction for driving under the influence, nor does it establish a conclusive presumption that a defendant was driving under the influence of alcohol. (Hamilton v. Gourley, supra, 103 Cal.App.4th at pp. 360-361.) Instead, section 23152, subdivision (b) defines and establishes a new and separate offense of driving with a specified breath-test reading. (Id. at p. 361.) To obtain a conviction under section 23152, subdivision (b), the prosecution need not prove that the defendant’s driving ability was impaired and the trier of fact need not determine whether a defendant was [*8] “driving under the influence,” only whether he had the specified blood alcohol concentration. (Ibid.)
The Federal Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. � 31101 et seq.) (the federal act) required sweeping changes in the testing and licensing of commercial drivers as a condition to maintain eligibility for federal highway funds. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358, fn. 1.) One of the requirements of the federal act is that the state “shall have in effect and enforce a law providing that an individual with a blood alcohol concentration level at or above the level established by section 31310(a) of this title when operating a commercial vehicle is deemed to be driving under the influence of alcohol.” (49 U.S.C. � 31311(a)(3).) Section 31310(a) of the federal act provides that “the blood alcohol concentration level at or above which an individual when operating a commercial motor vehicle is deemed to be driving under the influence of alcohol is .04 percent.”
The California Legislature enacted a series of amendments to the Vehicle Code in order to comply with the federal act. [*9] (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358, fn. 1.) In 1989, section 23152 was amended to add subdivision (d) containing a specific prohibition against driving a commercial vehicle with a blood alcohol concentration of .04 or more. Section 23152 currently provides in relevant part: “(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [P] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [P] . . . [P] (d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. [P] . . . [P] (e) This section shall become operative on January 1, 1992, and shall remain operative until the [Director of Motor Vehicles] determines that federal regulations . . . do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.”
Within 10 days [*10] after a person is convicted of a violation of the Vehicle Code, the clerk of the court must prepare and immediately forward to the DMV an abstract of the court record. ( � 1803, subd. (a).) “The abstract shall be made upon a form furnished or approved by the [DMV] and shall contain all necessary information to identify the defendant, including, but not limited to, the person’s driver’s license number, name, [] date of birth, the date and nature of the offense, . . . the license plate number of the vehicle involved in the offense, the date of hearing, and the judgment . . . . The abstract shall also indicate whether the vehicle involved in the offense is a commercial motor vehicle, as defined in subdivision (b) of Section 15210 . . . .” ( � 1804, subd. (a).) 2
FOOTNOTES
2 The requirement that courts furnish information to the DMV regarding whether a conviction involved a commercial vehicle was enacted as part of the 1988 amendments to the Vehicle Code to comply with the federal act. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358, fn. 1.)
[*11] Any abstract for which the original arrest and final conviction was for a violation of section 23152 must contain a statement indicating the percentage of alcohol, by weight, in the person’s blood whenever the percentage was determined by a chemical test. ( � 1804, subd. (b).) “The [DMV] may use the information for research and statistical purposes and for determining the eligibility of any person to operate a motor vehicle on the highways of this state.” (Ibid.) However, “the Legislature finds and declares that blood-alcohol percentages have valuable research potential in providing statistical summary information on impaired drivers but that a specific blood-alcohol percentage is only an item of evidence for purposes of criminal and licensing sanctions imposed by law. The Legislature recognizes that the accuracy of the determination of a specific blood-alcohol percentage is not the critical determination in a conviction for driving under the influence of an alcoholic beverage if the blood-alcohol percentage exceeds the statutory amount.” (Id., subd. (c).)
Upon receipt of a record showing a conviction for any violation of section 23152, the DMV must “immediately suspend [*12] or revoke, or record the court-administered suspension or revocation of, the privilege of a person to operate a motor vehicle” as set forth in section 13352, subdivision (a). Section 13352, subdivision (a) provides that if the offense occurs in a commercial vehicle, the suspension or revocation specified in section 13352 shall apply to the noncommercial driving privilege. “The commercial driving privilege shall be disqualified as specified in Sections 15300 to 15302, inclusive.” ( � 13352, subd. (a).) 3
FOOTNOTES
3 Section 13352, subdivision (a) provides in pertinent part: “If any offense specified in this section occurs in a [commercial] vehicle . . ., the suspension or revocation specified below shall apply to the noncommercial driving privilege. The commercial driving privilege shall be disqualified as specified in Sections 15300 to 15302, inclusive. For the purposes of this section, suspension or revocation shall be as follows: [P] (1) Upon a conviction or finding of a violation of Section 23152 punishable under Section 23536 [first violation], the privilege shall be suspended for six months.”
[*13] Section 15300, subdivision (a), added by the Legislature in 1988, provides in relevant part: “No driver of a commercial motor vehicle may operate a commercial motor vehicle for a period of one year if the driver is convicted of a first violation of any of the following: [P] (1) Driving a commercial motor vehicle while under the influence of alcohol or a controlled substance.”
In Hamilton v. Gourley, supra, 103 Cal.App.4th 351, the court held that the one-year disqualification of a commercial license applies to first-time offenders who are convicted of driving under the influence under section 23152, subdivision (a) while operating a commercial vehicle. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 358.) Although a conviction under section 23152, subdivision (a) does not require finding that a commercial vehicle was involved, DMV may determine whether a commercial motor vehicle was involved from the records the DMV receives from the court clerk pursuant to sections 1803 and 1804. (Ibid.)
The one-year disqualification does not apply to a conviction for driving a vehicle with a blood alcohol concentration of .08 percent under section [*14] 23152, subdivision (b), because that offense lacks the element that the driver be “under the influence” of alcohol at the time of the violation. (Hamilton v. Gourley, supra, 103 Cal.App.4th at pp. 360-361.) “By the time section 15300 was enacted in 1988, the Legislature had already made driving with a minimum [blood alcohol concentration] level a separate and distinct crime from [driving under the influence], while retaining the old [driving under the influence] statute. [Citation.] It must be presumed that the Legislature was aware of the distinction between the two offenses. [Citation.] Had the Legislature intended to impose the one-year penalty on the operator of a commercial vehicle who drove with a specified [blood alcohol concentration] level, it could easily have so stated. Yet section 15300 plainly requires that the one-year commercial penalty be based on a conviction of driving ‘under the influence.’” (Id. at p. 361, fn. omitted.)
The one-year disqualification also does not apply to a conviction under section 23152, subdivision (d) for driving a commercial vehicle with a blood alcohol concentration of .04 percent or more. [*15] (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 359.) As discussed above, driving “under the influence” and driving with a specified blood alcohol concentration are not equivalent. (Ibid.) “Driving with a [blood alcohol concentration] level in excess of the maximum specified in a statute is an independent offense which does not require a showing that the driver’s abilities were impaired by alcohol. [Citation.] More importantly, section 15300 was added to the code in 1988, prior to the enactment of section 23152(d). Obviously, the Legislature could not have intended the DMV to impose an administrative sanction for the conviction of a crime that did not yet exist.” (Ibid., fn. omitted.)
In the instant case, Childress was convicted of driving with a blood alcohol concentration level of .08 percent in violation of section 23152, subdivision (b). This conviction is not a basis for imposition of a one-year suspension under section 15300.
The DMV contends that Hamilton v. Gourley, supra, 103 Cal.App.4th 351 was incorrectly decided. The DMV asserts that notwithstanding California law providing that a conviction for driving under [*16] the influence is not equivalent to a conviction for driving with an excessive blood alcohol concentration, the Legislature intended the phrase “driving under the influence” as used in section 15300 to include driving with an excessive blood alcohol concentration level. The DMV’s interpretation is not reasonable in light of the fact that only five years prior to the enactment of section 15300, the Supreme Court made clear in Burg that a conviction for driving with an excessive blood alcohol concentration level is a separate offense from driving under the influence, not a lesser included offense and not an alternative definition of driving under the influence. In section 1804, which requires courts to transmit blood-alcohol level information to the DMV and was amended in 1988 as part of the enactments to comply with the federal act, the Legislature specifically recognizes that a driver’s blood-alcohol level is not the critical determination in a conviction for “driving under the influence.” The Hamilton court was correct to presume that the Legislature was aware of the distinction between the two offenses. (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 361, fn. 4.) [*17] Section 15300 uses the phrase “under the influence” and requires suspension of a driver’s commercial license for a year, based on a conviction for driving a commercial motor vehicle while under the influence of alcohol. The statute does not refer to blood alcohol concentration levels. Had the Legislature intended for a commercial license to be suspended based solely upon a conviction for driving with an excessive blood alcohol concentration level, it knew how to include language to that effect in section 15300. 4
FOOTNOTES
4 “There may be sound policy reasons why the Legislature chose to require a [driving under the influence] offense rather than a [blood alcohol concentration] percentage conviction to trigger the commercial penalty. For example, ‘”the Legislature may reasonably have concluded that the holders of commercial licenses as a group depend more upon those licenses for their employment and economic survival than do the holders of noncommercial licenses, . . .”‘ [Citation.]” (Hamilton v. Gourley, supra, 103 Cal.App.4th at p. 362, fn. 5.)
[*18] Any doubt as to the Legislature’s intent has been resolved with the Legislature’s amendment of section 15300, subdivision (a) in September 2004, operative September 20, 2005, to provide in relevant part: “A driver of a commercial motor vehicle may not operate a commercial motor vehicle for a period of one year if the driver is convicted of a first violation of any of the following: (1) Subdivision (a) or (b) of Section 23152. [P] (2) Subdivision (d) of Section 23152.” Under the statute as amended, a conviction for violating section 23152, subdivision (b) will now clearly trigger a one-year suspension of the driver’s commercial license. However, the Legislature specifically declared that any cause for disqualification of the commercial driving privilege enacted as part of the September 2004 legislation may only be applied to violations occurring on or after September 20, 2005. (Assem. Bill No. 3049 (2003-2004 Reg. Sess.) � 1.) Therefore, the Legislature had an opportunity after the decision in Hamilton to act immediately by enacting urgency legislation, but chose to delay implementation of commercial license suspensions for violations of section 23152, subdivisions (b) and (d) [*19] until September 20, 2005. By implication, the Legislature accepted the Hamilton court’s expression of legislative intent.
The DMV bases several additional arguments on its contention that if a driver is convicted of driving with an excessive blood alcohol concentration, the DMV may hold an administrative hearing to determine whether the driver was driving under the influence for purposes of suspending the driver’s commercial license under section 15300. In Hamilton, the appellate court concluded that a person would be deprived of procedural due process if a conviction for driving with an excessive blood alcohol concentration resulted in a license suspension under section 15300 for driving under the influence. (Hamilton v. Gourley, supra, 103 Cal.App.4th at pp. 362-363.) The appellate court’s analysis began with the fact that section 23610, subdivision (a)(3) provides a rebuttable presumption in a criminal action for driving under the influence in violation of section 23152, subdivision (a), that a person with a .08 percent blood alcohol concentration is under the influence of alcohol. (Id. at p. 362.) 5 The defendant has the opportunity [*20] to defeat the presumption. (Ibid.) The Hamilton court noted that section 15300, subdivision (a)(1) “does not allow an opportunity for a party saddled with the presumption to put on rebuttal evidence: the penalty is triggered automatically, without the benefit of a hearing, by the DMV’s receipt of the record of conviction. By imposing the one-year penalty for a .08 percent [blood alcohol concentration] conviction, the DMV has effectively converted a rebuttable presumption into a conclusive one, depriving [the defendant] of the most elementary elements of procedural due process.” (Id. at pp. 362-363.)
FOOTNOTES
5 Section 23610, subdivision (a) provides in pertinent part: “Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of an alcoholic beverage in violation of subdivision (a) of Section 23152 . . . the amount of alcohol in the person’s blood at the time of the test as shown by chemical analysis of that person’s blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof: [P] . . .[P] (3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.”
[*21] The DMV contends the due process analysis in Hamilton is incorrect, because the commercial license suspension under section 15300 is not necessarily automatic or without the right to a hearing. Alternatively, the DMV contends the instant case is distinguishable from Hamilton, because Childress was given an opportunity to present evidence at a noticed hearing. We disagree with both contentions. The one-year suspension under section 15300 is triggered by receipt of a record from the court showing a conviction for driving a commercial vehicle under the influence of alcohol. Under the statutory scheme, the DMV has no discretion to decide not to impose the prescribed penalty. The DMV’s jurisdiction depends upon the nature of the conviction, not upon the nature of the DMV’s policy to grant a hearing to the commercial driver. The DMV has no jurisdiction to suspend a commercial license under section 15300, subdivision (a)(1), unless the driver’s conviction is for driving under the influence.
Similarly, the DMV contends that Childress’ plea to a violation of section 23152, subdivision (b) raised a rebuttable presumption under section 23610, subdivision (a)(3) that he had been driving [*22] under the influence and his failure to present rebuttal evidence at the administrative hearing caused the presumption to become conclusive. This is incorrect. The presumption of section 23610, subdivision (a)(3) applies in a criminal action where it is alleged that the defendant was driving under the influence in violation of subdivision (a) of section 23152. Since Childress pled no contest to a violation of subdivision (b) rather than subdivision (a) of section 23152, the presumption of section 23610, subdivision (a)(3) was irrelevant. Childress’ plea to driving with an excessive blood alcohol concentration could not result in a conclusive presumption that Childress was driving under the influence. As stated above, a license suspension under section 15300 is triggered by a conviction for driving under the influence and cannot result from a failure to present rebuttal evidence at an administrative hearing. The trial court properly granted the writ of mandate in this case.
DISPOSITION
The judgment is affirmed.KRIEGLER, J. *
FOOTNOTES
* Judge of the Superior Court for the Los Angeles Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.