1983 actions and judges

March 30th, 2010

Plaintiffs also challenge the district court’s grant of absolute immunity from plaintiffs’ claims of injunctive relief to the defendant judges. Judges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the “`clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir.1996). This immunity applies even when the judge’s acts are in error, malicious, or were in excess of his or her jurisdiction. See Stump, 435 U.S. at 356, 98 S.Ct. 1099.

1240 In Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), however, a divided Supreme Court held that judicial immunity did not protect a state judge from claims for injunctive relief in a § 1983 action. In making this determination, the Court concluded that, consistent with the development of immunity in English common law, American courts had never adopted a rule of absolute judicial immunity to claims for injunctive relief. Id. at 536, 104 S.Ct. 1970. In addition, the Court noted that, as of the time of its opinion, seven circuits had indicated that there was no immunity from prospective injunctive relief and that the limitations already imposed by the requirements for obtaining injunctive relief “severely curtail the risk that judges will be harassed and their independence compromised by the threat of having to defend themselves against suits by disgruntled litigants.” Id. at 537-38, 104 S.Ct. 1970. Finally, the Court addressed the concern that allowing federal judges to grant injunctive relief against state judges under § 1983 would be inconsistent with the doctrines of comity and federalism. In this regard, the Court stated that nothing in § 1983 indicates that Congress intended to insulate state judges completely from federal review of their actions, and, because that statute allowed for suits against state officials and did not limit the relief available against judges, the Court declined to create such a limit. See id. at 540-42, 104 S.Ct. 1970.

The dissent in Pulliam disagreed with the majority’s analysis of English common law, arguing instead that the common-law remedies pointed to by the majority were not analogous to suits for injunctive relief against judges and therefore did not support the majority’s position that such relief was available. Further, the dissenting Justices were of the opinion that the prerequisites for injunctive relief did not provide a sufficient protection to judicial independence from the threat of vexatious litigation and pointed to the case before them as an example. As a result, the dissent concluded that there was “no principled reason why judicial immunity should bar suits for damages but not for prospective injunctive relief.” Id. at 557, 104 S.Ct. 1970.

The precise question of whether this Pulliam limit on judicial immunity applies to federal judges as well, when sued pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), is one of first impression in our circuit. It has been addressed, however, by several district courts and the Ninth Circuit Court of Appeals. See Mullis v. United States Bankr. Court for the Dist. of Nev., 828 F.2d 1385 (9th Cir.1987); Kampfer v. Scullin, 989 F.Supp. 194, 201-02 (N.D.N.Y.1997); Stephens v. Herring, 827 F.Supp. 359, 361-65 (E.D.Va.1993); Page v. Grady, 788 F.Supp. 1207 (N.D.Ga. 1992); Wightman v. Jones, 809 F.Supp. 474 (N.D.Tex.1992); Neville v. Dearie, 745 F.Supp. 99 (N.D.N.Y.1990); see also Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.1987). Most of these courts have held that the doctrine of absolute judicial immunity serves to protect federal judges from injunctive relief as well as money damages.

In Mullis, the Ninth Circuit pointed out several “anomalies” in the potential application of the Pulliam exception to judicial immunity to federal judges. Specifically, the court stated that in cases in which a federal judge meets the preconditions for judicial immunity—that he or she acted in his or her judicial capacity—there will “invariably” be an adequate remedy at law through either ordinary appeals or an extraordinary writ. Further, the court stated that the availability of these alternate remedies would diminish a plaintiff’s ability to show a serious risk of irreparable harm as well. See Mullis, 828 F.2d at 1392.

The Mullis court also noted that to allow injunctive relief against federal judges would be to permit a “horizontal appeal” from one district court to another or even “reverse review” of a ruling of the court of appeals by a district court. Id. at 1392-93. 1241 The court then went on to conclude that these problems suggested that the Pulliam exception should not apply in suits against federal judges. Finally, the Mullis court noted that this conclusion was supported by the absence of explicit statutory authority for a suit against a federal judge as was present in the § 1983 action against a state judge at issue in Pulliam. Id. at 1393-94.

Similarly, in Page v. Grady, 788 F.Supp. 1207 (N.D.Ga.1992), the Northern District of Georgia concluded that the rationale of Pulliam does not apply in suits against federal judges. In Page, the court noted that suits against state officials are explicitly allowed by § 1983 and that suits for injunctive relief against state judges were necessary to effectuate the historical practice of federal court oversight of state courts. Id. at 1211. Because these policies are not at issue in suits against federal judges, and Bivens actions against federal officials are judicially created remedies anyway, the Page court found that it was inappropriate to limit absolute judicial immunity in Bivens suits against federal judges. Id. at 1211-12. The court also noted that to find otherwise would be to allow a new method of oversight of federal court actions by co-equal or inferior federal courts. Id. at 1212; Stephens, 827 F.Supp. at 361-65; Wightman, 809 F.Supp. at 476-79.

There is an opposing position that warrants discussion, however. Specifically, the dissent in Mullis quotes Pulliam’s conclusions that the absence of immunity from prospective relief prior to that time had not chilled judicial independence and that such independence was adequately protected by the requirements for injunctive relief as follows:

We never have had a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence … The limitations already imposed by the requirements for obtaining equitable relief against any defendant—a showing or an inadequate remedy at law and of a serious risk of irrevocable harm (citations omitted), — severely curtail the risk that judges will be harassed and their independence compromised by the threat of having to defend themselves against suits by disgruntled litigants.

Mullis, 828 F.2d at 1394-95 (O’Scannlain, J., dissenting) (alterations in original); see Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir.1989) (questioning Mullis’s need for reliance upon absolute immunity when the court’s conclusion that an adequate remedy at law existed led to the same result), abrogated on other grounds, Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993); Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.1987) (citing Pulliam, without discussion, for the proposition that a federal probation officer’s quasi-judicial immunity from damages claims regarding the preparation of a pre-sentence report did not bar similar claims for injunctive relief); Neville v. Dearie, 745 F.Supp. 99, 102 (N.D.N.Y.1990) (citing Dorman for the proposition that judicial immunity does not bar claims for injunctive relief against federal judges).

In addition, the Supreme Court has previously held that it is inappropriate to create a distinction between state and federal officials for the purposes of immunity as follows:

There is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under § 1983. The constitutional injuries made actionable by § 1983 are of no greater magnitude than those for which federal officials may be responsible.

Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). We have similarly stated that the immunities provided federal officials in Bivens actions are coextensive with those provided state officials in § 1983 actions. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995); 1242 Charles v. Wade, 665 F.2d 661, 666 (5th Cir. Unit B 1982); Barker v. Norman, 651 F.2d 1107, 1122 (5th Cir.1981).[6] Thus, this issue is a closer one than it would seem at first blush. After considering both sides of the issue, however, we find the stronger argument favors the grant of absolute immunity to the defendant federal judges in this case. Thus we affirm the district court’s dismissal of the claims against the defendant judges.

Further, even assuming arguendo that the Pulliam decision applies equally in Bivens actions against federal judges, that decision has been partially abrogated by statute. Specifically, in 1996, Congress enacted the Federal Courts Improvement Act (“FCIA”), Pub.L. No. 104-317, 110 Stat. 3847 (1996), in which it amended § 1983 to provide that “injunctive relief shall not be granted” in an action brought against “a judicial officer for an act or omission taken in such officer’s judicial capacity … unless a declaratory decree was violated or declaratory relief was unavailable.” At least two district courts have determined that this amendment also limits any injunctive relief available against federal judges. See Jones v. Newman, 1999 WL 493429 (S.D.N.Y. 1999); Kampfer v. Scullin, 989 F.Supp. 194 (N.D.N.Y.1997). As the court in Jones explained, there are two reasons supporting the applicability of this amendment in Bivens actions. First, as a general matter federal courts incorporate § 1983 law into Bivens actions. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n. 5, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). In addition, to the extent that federal judicial officers are not immune from suits for injunctive relief, their liability is based on § 1983 law as set out in Pulliam. As a result, even assuming arguendo that Pulliam does apply to federal judges, the 1996 amendment to § 1983 would limit the relief available to plaintiffs to declaratory relief. As discussed below with regard to the defendant prosecutors, plaintiffs are not entitled to declaratory relief as there is an adequate remedy at law. Therefore, for this reason as well, the district court properly dismissed plaintiffs’ claims against the defendant judges.

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1983 Actions and Prosecutors

March 30th, 2010

D. Defendant Prosecutors

Prosecutors are also entitled to absolute immunity from damages for acts or omissions associated with the judicial process, in particular, those taken in initiating a prosecution and in presenting the government’s case. See Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.1984). Our predecessor court has held that prosecutors are not immune from claims for injunctive relief, however. See Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir.1981) (“[P]rosecutors do not enjoy absolute immunity from [declaratory and injunctive relief] claims.”). Further, we have found no case distinguishing between state and federal prosecutors in this regard as has been done between state and federal judges. However, we do not resolve this question because the district court’s dismissal of plaintiffs’ claims against the defendant prosecutors may so clearly be upheld on an alternate ground.

In order to receive declaratory or injunctive relief, plaintiffs must establish that there was a violation, that there is a serious risk of continuing irreparable injury if the relief is not granted, and the absence of an adequate remedy at law. See Newman v. Alabama, 683 F.2d 1312 (11th Cir.1982). As aptly noted by the Ninth Circuit in Mullis, there is an adequate remedy at law for the violations alleged by plaintiffs in their complaint. 1243 Specifically, plaintiffs may appeal any rulings, or actions taken, in their criminal cases not only to this Court but also to the Supreme Court. In addition, plaintiffs may seek an extraordinary writ such as a writ of mandamus in either this Court or the Supreme Court. See 28 U.S.C. § 1651. Accordingly, there is an adequate remedy at law and plaintiffs are not entitled to declaratory or injunctive relief in this case. As a result, the district court was correct in dismissing plaintiffs’ claims, albeit for a different reason.[7]

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California DMV Law

March 23rd, 2010

BRUCE POLLACK, Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Docket No. L.A. 31912.

Supreme Court of California.

March 21, 1985.

370 COUNSEL

OPINION

GRODIN, J.

Once again we are called upon to interpret the ambiguous wording of a recently amended statute. In this case, the issue involves the 371 meaning of certain language in Vehicle Code section 13352,[1] as amended in 1981.

(1) The Department of Motor Vehicles (DMV) appeals from a judgment setting aside its one-year suspension of Bruce Pollack’s driving privileges pursuant to section 13352, subdivision (a)(3), following Pollack’s second drunk driving conviction within five years. The sole issue is whether the DMV may suspend a license of a twice convicted drunk driving offender under section 13352, subdivision (a)(3), where the prior conviction is neither alleged nor proven in the second criminal proceeding. For the reasons which follow, we conclude it can and reverse the judgment.

Pollack was convicted of drunk driving on December 4, 1981, and again on September 9, 1982. The criminal complaint filed in the second offense did not allege the prior conviction nor was the fact of that conviction proven at trial. On November 23, 1982, the DMV suspended Pollack’s license for a period of one year pursuant to section 13352, subdivision (a)(3), which requires the DMV to suspend the license of drivers convicted of any “violation of section 23152 punishable under section 23165.”[2]

Pollack does not contest the accuracy of the DMV’s records or the legality of either of his convictions. He thus admits that he incurred two valid convictions for drunk driving within the applicable five-year period. Nonetheless, he argues that the DMV may not suspend his license under section 13352 because, in its 1981 amendments to that statute, the Legislature evidenced an intention to impose the “plead and prove” requirement pertinent 372 to criminal proceedings upon the administrative processes of the DMV. Accepting this theory, the trial court directed the DMV to vacate its order suspending Pollack’s driving privileges because of the failure to plead and prove his prior conviction at his second trial. On appeal, the DMV contends that it is statutorily required to suspend a license after a second conviction whether or not the prior conviction was proven during the second trial.

(2a) Section 23152 is the basic Vehicle Code provision prohibiting any person under the influence of alcohol or drugs from driving a motor vehicle.[3] Section 23152 and section 23165, the sentencing provision pertinent to a second offense, are contained in division 11 (Rules of the Road), chapter 12 (Public Offenses), which details the criminal penalties attendant upon violations of the driving laws. Section 13352, by contrast, is contained in division 6 which pertains to the DMV’s issuance, renewal, suspension and revocation of drivers’ licenses. Thus, in its present format, section 13352 instructs the DMV to regulate drivers’ licenses by reference to specific provisions of the criminal statutes.

(3) The fundamental principle of statutory interpretation is “the ascertainment of legislative intent so that the purpose of the law may be effectuated….” (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [127 Cal. Rptr. 122, 544 P.2d 1322].) This principle requires us to determine the objective of the Legislature and to interpret the law so as to give effect to that objective even when such an interpretation appears to be at odds with conventional usage or the literal construction of the statutory language. (Younger, supra, at pp. 40-42; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104 Cal. Rptr. 761, 502 P.2d 1049].)

(2b) In this instance, the disputed phrase, “violation of Section 23152 punishable under Section 23165,” is ambiguous. (4) It is a well-established principle in our law that, when a prior conviction is relied upon as a 373 means of empowering a court to impose increased criminal penalties, the indictment or complaint must allege the prior conviction and, unless admitted, it must be proven. (Cavassa v. Off (1929) 206 Cal. 307, 313 [274 P. 523].) (2c) Thus, in light of the prosecutor’s failure to allege and prove Pollack’s prior conviction, he could not be subjected to sentencing under section 23165. For this reason, Pollack contends that he was not “punishable under Section 23165.” Therefore, he argues, the literal terms of section 13352, subdivision (a)(3), do not apply to him.

The DMV argues, however, that section 13352 does not refer to the offender as being punishable under section 23165, but to the offense. Several California courts have construed the word “punishable” when used with reference to an offense to mean “may be punished” or “liable to be punished.” (People v. Superior Court (1931) 116 Cal. App. 412, 415 [2 P.2d 843]; People v. McCullin (1971) 19 Cal. App.3d 795, 799 [97 Cal. Rptr. 107].) In McCullin, the court interpreted the phrase “offense punishable by death” in former Penal Code section 1202b to mean “all offenses for which the statute authorizes the death penalty as a possible maximum punishment regardless of whether it is imposed in a particular case.” (McCullin, supra, at pp. 798-799, italics added.)[4] Thus, the DMV contends that section 13352 refers to offenses potentially punishable under section 23165 (i.e., second offenses of driving under the influence within five years of a prior offense) regardless of the punishment actually imposed.

Both interpretations are plausible. In a case where the statute’s words are sufficiently flexible to admit of several constructions, it is appropriate to examine the legislative history in an attempt to discern the purpose of the statute. (See Friends of Mammoth, supra, 8 Cal.3d at pp. 259-262.)

Prior to the 1981 amendments, the Vehicle Code contained no separate sentencing statutes analogous to present sections 23160, 23165, 23170 and 23175. Rather, criminal sentences were set out in the statutes defining driving offenses. Former section 13352, therefore, made no reference to sentencing statutes, but instead provided that the DMV should suspend or revoke a driver’s license upon receipt of an abstract of a record of any court showing a conviction for driving under the influence. Varying durations of suspension or revocation were specified for first, second, and subsequent convictions. The provisions of former section 13352 thus specified:

374 “(a) Upon a first … conviction,” driving privileges would be suspended for six months if the court so ordered;

“(c) Upon a second … conviction,” driving privileges would be suspended for not less than a year;

“(e) Upon a third or subsequent conviction,” driving privileges would be revoked, not to be reinstated for a period of three years.

It was established under former section 13352 that the DMV was required to suspend a driver’s privileges upon a second conviction regardless of whether the prior conviction had been alleged and proven at the second trial. (Cook v. Bright (1962) 208 Cal. App.2d 98 [25 Cal. Rptr. 116].) Thus, under the operation of former section 13352, a driver in Pollack’s situation would clearly have suffered a suspension of driving privileges quite apart from whether the prosecutor chose to plead and prove the prior conviction. Pollack contends that by amending section 13352 in 1981, the Legislature evinced an intention to afford greater procedural protections to those convicted of driving under the influence than had prevailed under prior law. We cannot agree with this conclusion.

In 1981, the Legislature effected a comprehensive reorganization of the Vehicle Code. These 1981 amendments amended and reenacted most of the code provisions relating to driving under the influence of intoxicating liquor and drugs. This legislation was evidently prompted by increasing public concern over the problem of intoxicated drivers. (See generally Review of Selected 1981 California Legislation (1982) 13 Pacific L.J. 787-799.) In general terms, the amended statutes made it more difficult to avoid a criminal conviction for the offense of driving under the influence and increased the criminal penalties to be imposed upon conviction. (Compare former § 23102, subd. (d).) The ability of the courts to avoid imposition of mandatory jail sentences and fines was restricted. (See §§ 23166, 23171, 23200, 23206.) In addition, more stringent mandatory probation provisions were imposed. (See §§ 23166, 23171, 23206.) Throughout these amendments, the Legislature’s attempt to banish intoxicated drivers from our highways is obvious. It is difficult to reconcile this clear objective with the increased legislative solicitude for the driving privileges of twice-convicted drunk drivers which Pollack purports to discern in the 1981 amendment to section 13352.

Rather, another and more credible explanation illuminates the Legislature’s intent in choosing this ambiguous wording. As originally introduced by Assemblywoman Moorhead on February 18, 1981, Assembly Bill No. 541 included new sections 23156 through 23160. These new sections mandated sentences for first and subsequent offenses of both section 23152 and 375 section 23153 (driving under the influence and causing bodily injury). One feature of these sentencing provisions, as originally drafted, was that first offenses of the more serious violation (§ 23153) were grouped together with subsequent offenses of the less serious violation (§ 23152) in a single sentencing provision, with the same punishment provided for both. For example, section 23157 imposed imprisonment of 90 days to a year and a fine of $375 to $1,000 as the punishment for both a first offense of section 23153 and a second offense of section 23152. Section 23158 similarly grouped second offenses of section 23153 with third and subsequent offenses of section 23152.

On the same day she introduced Assembly Bill No. 541, Assemblywoman Moorhead also introduced Assembly Bill No. 542. This bill, intended to take effect only if Assembly Bill No. 541 were enacted, amended additional provisions of the Vehicle Code to conform to the provisions of Assembly Bill No. 541. Assembly Bill No. 542 contained proposed revisions of section 13352, and appears to be the origin of the “punishable under” language which we consider in this case.

In light of Assembly Bill No. 541’s sentencing provisions, described above, the necessity of specifying the substantive provision violated (§ 23152 or § 23153) and the number of the offense (first, second, or third and subsequent) in section 13352 was obviated. The sentencing provisions themselves conveyed this information in an abbreviated formulation.

Section 21 of Assembly Bill No. 542, for example, proposed that section 13352 be amended to read, “[u]pon a conviction or finding of a violation punishable under section 23156,” where the former statute had provided, “[u]pon a first such conviction or finding.” Similarly, “[u]pon a conviction or finding of a violation punishable under Section 23158 or 23159,” replaced “[u]pon a second such conviction or finding” in the former statute.

This observation suggests that the “punishable under” formulation was merely intended to provide a shorthand reference to drunk driving offenses, with and without prior convictions. It does not imply, as Pollack suggests, an intent on the part of the Legislature to change the operation of existing law pertinent to the DMV’s suspension or revocation of drivers’ licenses upon a second conviction for drunk driving.

This conclusion is bolstered by consideration of the Legislative Counsel’s Digests prepared for Assembly Bills Nos. 541 and 542 as they progressed through both houses of the Legislature.[5] Assembly Bill No. 541 was amended 376 six times prior to passage. With each amendment, a new Legislative Counsel’s Digest was prepared. Insofar as these digests are relevant to our interpretation of section 13352, subdivision (a)(3), they consistently indicate the Legislature’s intent to require the DMV to suspend a driver’s license upon a second conviction of driving under the influence. The digests suggest no intent to change the mechanics of the prior law.

Thus, the digest prepared for Assembly amendments of March 23, 1981, read, in pertinent part:

“Existing law … provides for the suspension or revocation of a person’s privilege to operate a motor vehicle for, among other things, driving while under the influence of intoxicating liquor or drugs or the combined influence thereof….

“…. …. …. …. …. …. .

“The bill would require the Department of Motor Vehicles to suspend the privilege for 90 days to 6 months for a first conviction of that violation not involving bodily injury or death. The bill would require the department to suspend the privilege for 1 year for a second conviction of that violation not involving bodily injury or death to another or for a first conviction of that violation involving bodily injury or death to another.” (Italics added.)

The final version of the Legislative Counsel’s Digest, introducing the statute as enacted, read, in pertinent part:

“Existing law … provides for the suspension or revocation of a person’s privilege to operate a motor vehicle for, among other things, driving while under the influence of intoxicating liquor or drugs or the combined influence thereof….

“…. …. …. …. …. …. .

“The bill would require the department to suspend that privilege for 1 year for a second conviction of that violation and to revoke it for 3 years for a third or subsequent conviction.” (Leg. Counsel’s Dig. of Assem. Bill No. 541 (1981 Reg. Sess.).)

If the statute actually read as described by the Legislative Counsel, there would be no question as to its meaning. As this court has had occasion to observe before, it is reasonable to presume that the Legislature acts, in amending statutes, with the intent and meaning expressed in the Legislative 377 Counsel’s Digest. (See People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434 [155 Cal. Rptr. 704, 595 P.2d 139].)

We also note that the Legislature specifically provided that out-of-state convictions would result in suspension of driving privileges under section 13352, subdivision (d). In our view, this is yet another indication that the Legislature did not intend to impose a “plead and prove” prerequisite to license suspension. The California Legislature is obviously powerless to impose a “plead and prove” requirement upon the courts of other states. Nor does the statutory scheme contemplate any mechanism by which the DMV could ascertain whether prior convictions had been alleged and proven in out-of-state proceedings. Yet prior law established that two priors each in a different state would result in license suspension under former section 13352 (Cook v. Department of Motor Vehicles (1973) 33 Cal. App.3d 265 [109 Cal. Rptr. 104]), and subdivision (d) of section 13352 appears to be designed to codify the Cook court’s holding.

It seems unlikely that our Legislature would provide special procedural protections to safeguard the driving privileges of California drivers tried in California courts, while simultaneously failing to provide similar protections for California drivers tried in out-of-state courts.

For these reasons, we conclude that the Legislature did not intend, via its 1981 amendment, to alter the operation of prior law, and that the DMV, under section 13352, subdivision (a)(3), is mandated to suspend the driving privileges of a driver convicted of a second drunk driving offense within five years.[6]

(5) It has been argued that this interpretation of section 13352 renders certain language in section 23200 meaningless. We do not agree.

Section 23200 was enacted contemporaneously with the comprehensive 1981 reorganization of the Vehicle Code discussed above. As originally enacted, subdivision (a) of section 23200 provided: “In any case charging a violation of Section 23152 or 23153 and the offense occurred within five years of one or more prior offenses which resulted in convictions of violations of Section 23152 or 23153, or one or more prior offenses which occurred on or after January 1, 1982, which resulted in convictions of violation of section 23103 as specified in Section 23103.5, or any combination, or all, of those three provisions, the court shall not strike any prior conviction of those offenses for purposes of sentencing in order to avoid imposing, 378 as part of the sentence or term of probation, the minimum time of imprisonment and the minimum fine, as provided in this chapter.” (Stats. 1981, ch. 941, § 10, p. 3592.)

It is apparent that this statute was intended to limit the power of the court, by striking prior convictions, to avoid imposing the new harsher sentences mandated for multiple offenses of drunk driving. Early in 1982, the Legislature enacted additional amendments to the Vehicle Code. Many of these were intended to clarify provisions of the 1981 law or to eliminate minor inconsistencies in the 1981 enactments. These 1982 amendments were enacted as an urgency measure. (Stats. 1982, ch. 53, eff. Feb. 18, 1982.)

Among many other provisions, chapter 53 added the following clause to the end of subdivision (a) of section 23200: “or for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in this code.” (Stats. 1982, ch. 53, § 40, p. 178.)

On the basis of this change in the legislation, the following argument is advanced. Former section 13352 clearly required the DMV to suspend a license upon receiving notice of a second or subsequent conviction whether or not the prior conviction(s) had been pleaded and proven at the subsequent trial. Therefore, under the operation of prior law, the court’s decision to strike prior convictions would have no effect upon the DMV’s authority to suspend or revoke driving privileges. So, if the DMV’s interpretation of the 1981 amendment to section 13352 is correct, and no change in the mechanics of the prior law was effected, then the language of the 1982 amendment to section 23200 was wholly unnecessary. By negative implication, therefore, the 1982 amendment of section 23200 must indicate that the Legislature understood that in 1981 it had effected a change in the operation of section 13352. The Legislature must have intended that prior convictions be pleaded and proven in court before the DMV could suspend or revoke driving privileges under section 13352. According to this view, only once such prior convictions had been proven would section 23200 deprive the courts of their authority to strike priors to avoid license suspension or revocation.

While logically consistent, this argument is based on a false premise. The amended language of section 23200 does not refer to an imaginary change in the operation of section 13352, but to a real change in the operation of section 13352.5.

Prior to the 1981 amendments, section 13352.5 provided that the court could prevent the DMV’s suspension or revocation of driving privileges by certifying that the driver was participating in an alcoholism treatment program. 379 This provision, by its terms, applied not only to first and second offenders, but to all offenders regardless of the number of prior drunk driving convictions they had incurred. (See former § 13352.5, Stats. 1978, ch. 954, § 2, p. 2954.)

In the comprehensive 1981 amendments, the Legislature effected a significant change in this statute. Although the court could still prevent the suspension or revocation of driving privileges of second offenders, the provisions pertinent to third and subsequent offenders were deleted. (See former § 13352.5, Stats. 1981, ch. 940, § 6, p. 3564.)[7] After 1981, revocation of driving privileges upon a third conviction of drunk driving within five years became mandatory in all cases.

Thus, the 1981 amendment of section 13352.5 clearly expressed the Legislature’s intent to deprive all third and subsequent offenders of their driving privileges. Nonetheless, under section 13352.5, the courts still retained the power to preserve the driving privileges of second offenders. The Legislature evidently feared that, under certain circumstances, the courts might strike one or more prior offenses, sentence third or fourth offenders as second offenders, and thus attempt to preserve these offenders’ driving privileges by certifying that they had consented to participate in an alcoholism treatment program under the terms of section 13352.5.

The 1982 amendment to section 23200 was apparently designed to prevent any such judicial circumvention of the Legislature’s plan to remove all third offenders from the highways. To hold that this language, obviously inserted as further evidence of the Legislature’s intention to rid California highways of the menace of drunk drivers, somehow requires us to allow this twice convicted drunk driver to retain his driving privileges would indeed be an anomalous result.

(6a) The dissent errs in suggesting that our interpretation of amended section 13352 gives rise to a “very grave due process problem.” (See, post, at p. 382.) Any driver in Pollack’s position will already have had at least two opportunities to be heard in the criminal trials precedent to each of his 380 convictions for drunk driving. In addition, under our reading of section 14101, any such driver is entitled to a prompt hearing before a representative of the DMV if he believes his suspension is based upon inaccurate DMV records.[8] Finally, a driver who contests the validity of prior convictions is entitled to bring a challenge against these convictions within the rendering court system. (See Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335 [90 Cal. Rptr. 586, 475 P.2d 858]; Cook v. Department of Motor Vehicles, supra, 33 Cal. App.3d 265; Fitch v. Justice Court (1972) 24 Cal. App.3d 492 [101 Cal. Rptr. 227].) We reiterate that Pollack himself challenges neither the accuracy of the DMV’s records nor the validity of his two prior convictions.

(7) The United States Supreme Court has held that due process does not require an administrative hearing prior to revocation of driving privileges where the threat to public safety is sufficiently obvious to justify immediate termination. (Dixon v. Love (1977) 431 U.S. 105 [52 L.Ed.2d 172, 97 S.Ct. 1723].) The California courts have long held the same view. (See Hough v. McCarthy (1960) 54 Cal.2d 273, 285 [5 Cal. Rptr. 668, 353 P.2d 276]; Cook v. Bright, supra, 208 Cal. App.2d 98, 103; Westmoreland v. Chapman (1968) 268 Cal. App.2d 1, 5 [74 Cal. Rptr. 363]; Cook v. Department of Motor Vehicles, supra, 33 Cal. App.3d at p. 268.) (6b) We are satisfied that the procedural safeguards afforded to California drivers which are summarized above are adequate to satisfy the demands of the Fourteenth Amendment due process clause as well as the demands of article I, sections 7 and 15 of the California Constitution.

Conclusion

The thrust of the legislative concern under Vehicle Code section 13352 remains as it was under prior law: protection of the public from drivers 381 whose prior conduct demonstrates they cannot currently be trusted with a license to drive. That concern would not be served by an interpretation of the statute which makes public protection dependent upon whether a prosecutor, in a criminal proceeding, chooses to plead and prove the prior offense. (8) (See fn. 9.) Rather, as the statutory history demonstrates, the Legislature intended license revocation to follow administratively from the record of convictions.[9] Of course, a driver who wishes to challenge the existence or validity of a prior conviction must be afforded an opportunity to do so. That, however, is not the situation here.

The judgment is reversed.

Kaus, J., Broussard, J., and Lucas, J., concurred.

MOSK, J.

I dissent.

As is so often the case, when a grave social problem emerges that seems to require severe sanctions, the legislative source — sometimes the people by initiative, sometimes the Legislature — acts with undue haste and the result is a statute that is hardly a model of clarity. That occurred here. The public outcry against repetitive drunk drivers resulted in the adoption of a measure that unfortunately may not always achieve its apparently desired objective.

The majority opinion is difficult to track. It contends that the legislation is ambiguous. It then proceeds to ignore the generally accepted result of statutory ambiguity — i.e., to resolve the ambiguity in favor of a criminal defendant, as the trial court did. Finally, the majority rationalize a result that ignores the text of the statute and plays havoc with a defendant’s elementary due process right to be heard. In my opinion the laudable motive of getting drunk drivers off the streets and highways does not justify suspending the rule of law in California.

The Vehicle Code (§ 13352, subd. (a)(3)) provides that the department shall suspend or revoke a license “upon a conviction or finding of a violation 382 of Section 23152 punishable under Section 23165….” A person need not be punished under section 23165, but he must be punishable under that section. One is punishable under section 23165 only if his prior offense was pleaded and proved.

The reason for the foregoing is clear. Section 23165 provides not only for license suspension, but for increased punishment up to a year in jail and a fine of $1,000 when there has been a prior offense committed within five years. We have consistently required that whenever prior convictions may be employed to increase penalties, they must be pleaded and proved, with the defendant given an opportunity to be heard in opposition. See, for example, the unanimous opinion of this court in People v. Jenkins (1975) 13 Cal.3d 749, 756 [119 Cal. Rptr. 705, 532 P.2d 857]; to the same effect are People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192 [80 Cal. Rptr. 913, 459 P.2d 241], and People v. Ford (1964) 60 Cal.2d 772, 794 [36 Cal. Rptr. 620, 388 P.2d 892].

The People failed to plead and prove defendant’s prior conviction. Therefore he was not punishable under section 23165, and the prerequisite for suspension under section 13352, subdivision (a)(3), was not met. The trial court’s order was thus compelled.

Since the majority are in error in their statutory interpretation, I need not reach the very grave due process problem that lurks in the background. I do observe, however, that under the traditional American rule of law, one may not be deprived of a right without an opportunity to be heard. On the issue of his prior conviction, this defendant has had no opportunity, in court or before an administrative agency, to be heard and to produce evidence concerning any possible invalidity of the prior. Indeed, he was not even informed, through any pleading, that he was in additional jeopardy because of the purported prior conviction. That does not comport with any recognized concept of due process. As Justice Cardozo wrote in Escoe v. Zerbst (1935) 295 U.S. 490, 493 [79 L.Ed. 1566, 1569, 55 S.Ct. 818], “He shall have a chance to say his say before the word of his pursuers is received to his undoing.”

There is no justification for the prosecution to fail to charge a prior drunk driving conviction. Unfortunately, after the majority opinion in this case is filed there will be no incentive for the prosecution to do so. Yet there would be no burden on the state: it has local records available, and for records elsewhere the facilities of state and federal Department of Justice bureaus are as handy as the nearest law enforcement computer terminal. Ineptness of the prosecution in this instance does not justify judicial rewriting of a statute. The next legislative session should do that.

383 I would affirm the judgment.

Bird, C.J., and Reynoso, J., concurred.

[1] All statutory references are to the Vehicle Code unless otherwise specified.

[2] Section 13352, subdivision (a)(3) provides: “(a) The department shall immediately suspend or revoke the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of a violation of Section 23152 or 23153 or subdivision (a) of Section 23109, or upon receipt of a report of a judge of the juvenile court, a juvenile traffic hearing officer, or a referee of a juvenile court showing that the person has been found to have committed a violation of Section 23152 or 23153 or subdivision (a) of Section 23109. For the purposes of this section, suspension or revocation shall be as follows: … [¶] (3) Except as provided in Section 13352.5, upon a conviction or finding of a violation of Section 23152 punishable under Section 23165, the privilege shall be suspended for one year. The privilege shall not be reinstated until the person gives proof of ability to respond in damages as defined in Section 16430.”

Section 23165 provides: “If any person is convicted of a violation of Section 23152 and the offense occurred within five years of a prior offense which resulted in conviction of a violation of Section 23152 or 23153, or a prior offense which occurred on or after January 1, 1982, which resulted in a conviction of a violation of Section 23103 as specified in Section 23103.5, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred seventy-five dollars ($375) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant to paragraph (3) of subdivision (a) of Section 13352.”

[3] Section 23152 currently provides: “(a) It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle.

“(b) It is unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

“For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood.

“In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.10 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.10 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

“(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a methadone maintenance treatment program approved pursuant to Article 3 (commencing with Section 4350) of Chapter 1 of Part 1 of Division 4 of the Welfare and Institutions Code.”

[4] In McCullin, a defendant under 23 years of age was convicted of first degree murder. During voir dire the prosecution stipulated that it would not seek the death penalty. The issue of interpreting Penal Code section 1202b then became whether the defendant had or had not been convicted of an offense punishable by death. The court concluded that he had, thus, relying, in part, upon the history of the statute as an indication that this interpretation was consonant with the Legislature’s intent.

[5] Although originally introduced in Assembly Bill No. 542, the amended version of section 13352 was added to Assembly Bill No. 541 as part of the Assembly amendments to the latter on March 23, 1981.

[6] Because the DMV’s action was mandatory, Pollack was not statutorily entitled to an administrative hearing prior to the suspension of his driving privileges. (§ 14101.)

[7] Although the February 1982 amendment made minor changes in the wording of section 13352.5, this essential element of the statute remained unchanged. (See former § 13352.5, Stats. 1982, ch. 53, § 17, p. 167.)

[8] Article 3 of the Vehicle Code discusses procedures for providing hearings to persons whose driving privileges are to be suspended or revoked. Section 14100 provides for hearings in specified situations. That section does not provide that these situations are exclusive, however, and indeed the code provides for an article 3 hearing in at least one situation not specified in section 14100. (See § 13353.) Section 14101, subdivision (a) provides that a person is not entitled to a hearing “[w]henever the action of the department is made mandatory by the provisions of this code.” The duty of the DMV to suspend drivers’ licenses under section 13352 is mandatory and, under section 14101, if such a person comes within the terms of the statute he is not entitled to a hearing. (Houlihan v. Department of Motor Vehicles (1970) 3 Cal. App.3d 915, 919 [83 Cal. Rptr. 885].) Section 13352, however, mandates suspension or revocation only upon receipt of a duly certified abstract of a court record reflecting a drunk driving conviction, and in the case of multiple offenses, only where DMV records reflect prior convictions. If the DMV’s records are inaccurate or if there is a mistake as to identity, license suspension is not mandatory by the provisions of the code. Under the terms of section 14101, therefore, a driver who contests the accuracy of DMV records of prior convictions may not be denied the opportunity for an administrative hearing to demonstrate that suspension is not mandatory in his case.

[9] We recognize the importance of the driving privilege in our society and the possibility of error in the revocation or suspension process. Therefore, to further both the goal of removing drunk drivers from the road, and of ensuring the accuracy of the DMV’s records, the sentencing court should inform the defendant that his license will be suspended if the records reflect a prior conviction, that if he does have a prior conviction he may no longer drive, and of the procedures by which to challenge such suspension or revocation.

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DUI and the DMV

March 23rd, 2010

 Mercer v. Department of Motor Vehicles, 809 P. 2d 404 – Cal: Supreme Court 199153 Cal.3d 753 (1991)

809 P.2d 404

280 Cal. Rptr. 745

BARRIE GRAY MERCER, Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Docket No. S017249.

Supreme Court of California.

May 6, 1991.

755 COUNSEL

OPINION

LUCAS, C.J.

The superior court issued a writ of mandate directing the Department of Motor Vehicles (DMV) to set aside its order revoking Barrie Gray Mercer’s driving privileges after Mercer refused to submit to chemical testing following his arrest for driving under the influence of alcohol. (See Veh. Code, § 23157, subd. (a)(1)[1] [driver's implied consent to chemical testing following "lawful arrest" for violation of § 23152]; § 23152, subd. (a) [hereafter section 23152(a)] [unlawful for any person who is "under the influence" of alcohol or drugs to "drive a vehicle"]; § 13352, subd. (a)(3) [suspension or revocation of driving privilege for refusal to submit to testing pursuant to § 23157].) The Court of Appeal reversed and directed the superior court to reinstate the revocation order.

We granted review to resolve a conflict in the Court of Appeal concerning interpretation of the implied consent (§ 23157) and related license revocation (§ 13353) statutes. Several courts have held that observed volitional movement of a vehicle is required before a person’s driving privilege may be suspended or revoked for refusal to submit to chemical testing. (E.g., Music v. Department of Motor Vehicles (1990) 221 Cal. App.3d 841 [270 Cal. Rptr. 692] [Music].) By contrast, the present Court of Appeal, claiming support for its view in Henslee v. Department of Motor Vehicles (1985) 168 Cal. App.3d 445 [214 Cal. Rptr. 249] [Henslee], holds that observed movement of a vehicle is not required as a condition of suspension or revocation of driving privileges for failure to submit to testing. We conclude the Music approach correctly interprets the statutes, and accordingly we reverse the decision of the Court of Appeal.

We emphasize at the outset the narrow scope of our inquiry and holding. (1) We do not hold that observed movement of a vehicle is necessary to support a conviction for “drunk driving” under section 23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle. (See, e.g., People v. Wilson (1985) 176 757 Cal. App.3d Supp. 1, 8-9 [222 Cal. Rptr. 540], and cases cited.) Nothing in this opinion calls in question the holdings of these cases.

(2) Nor do we hold that observed volitional movement of a vehicle is a necessary condition of compelled chemical testing. Although the DMV and its amicus curiae seem to have ignored the fact, case law predating adoption of the implied consent statute continues to allow for such testing without a warrant, and without the consent of the person tested, so long as (i) the testing is incident to a lawful arrest, (ii) the circumstances require prompt testing, (iii) the arresting officer has reasonable cause to believe the arrestee is intoxicated, and (iv) the test is conducted in a medically approved manner. (Schmerber v. California (1966) 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 914-917, 86 S.Ct. 1826] [Schmerber]; People v. Superior Court (1972) 6 Cal.3d 757, 761-765 [100 Cal. Rptr. 281, 493 P.2d 1145] [Hawkins].)

We address today only the narrow question of whether, under sections 23157 and 13353 as presently written, the state may suspend or revoke a driver’s license for failure to submit to chemical testing in the absence of evidence of observed volitional movement of a vehicle.

I. Facts and Procedure

At a revocation hearing held at Mercer’s request pursuant to section 14100 et seq., the following facts were adduced: In response to calls from neighbors, a police officer found Mercer slumped over the steering wheel of his car. His seat belt was fastened, the car lights were on, and the engine was running. The car was legally parked against the curb of a residential street. Mercer awoke after the officer rocked the car and banged on it with a flashlight. According to the officer, when Mercer “finally [came] around, he started pulling gears [on the manual transmission] as if … in his mind, he was already driving or about ready to drive.” Eventually Mercer ceased attempting to put the car in gear and rolled down the window, at which point the officer detected a heavy odor of alcohol on Mercer’s breath and ordered him out of the car.

After Mercer stumbled to the sidewalk the officer observed his slurred speech and red, watery eyes. The officer arrested Mercer without a warrant for driving under the influence of alcohol (§ 23152(a)), and advised him that under the implied consent law he was obligated to submit to chemical testing, or suffer suspension or revocation of his driving privileges. Mercer refused to take any chemical test; he responded, “I wasn’t driving.” He was not subjected to a chemical test.

758 Mercer stipulated that he was properly advised of the implied consent law and that he refused the tests. The officer conceded the car never moved in his presence. The hearing officer found: the arresting officer had reasonable cause to believe Mercer had been driving a motor vehicle while under the influence of alcohol; Mercer was lawfully arrested; Mercer was properly advised of the consequences of his failure to submit to testing under the implied consent law; and Mercer refused to take any chemical test. The DMV notified Mercer that his driving privileges would be revoked for three years. (§ 13353, subd. (a)(3).)

After administrative review was resolved against Mercer he filed a petition for a writ of mandate (Code Civ. Proc., § 1094.5) seeking to reverse the revocation order. The superior court granted the writ, reasoning as follows: (i) Sections 23157 and 13353 predicate license suspension or revocation on a “lawful arrest” for violating the “drunk driving” statute, section 23152; (ii) one does not violate section 23152(a) unless one causes a vehicle to move; (iii) section 23152(a) is a misdemeanor; (iv) Penal Code section 836, subdivision 1, permits a warrantless arrest for a misdemeanor only if the arresting officer has reasonable cause to believe a misdemeanor offense was committed in the officer’s presence; and (v) because the officer did not observe Mercer’s car move, the warrantless arrest was unlawful, and accordingly the revocation was improper because the “lawful arrest” requirement of the implied consent law was not met.

As noted above, the Court of Appeal reversed. It reasoned that Mercer “exercised such a degree of control over the vehicle that he was driving within the meaning of section 23152, subdivision (a),” and that the offense was thus committed in the officer’s presence. Accordingly, the court concluded the arrest was “lawful” and ordered that the revocation order be reinstated.

II. Analysis

In Schmerber, supra, 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 917-921], the high court held permissible the warrantless taking of a person’s blood for the purpose of chemical testing to determine intoxication, “provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief that the person is intoxicated.” (Hawkins, supra, 6 Cal.3d at p. 761, citing Schmerber, supra.) Shortly thereafter our Legislature enacted our implied consent law — former section 13353, the predecessor to section 23157.

In relevant part, the law today — and at the time of the offense — reads as it did when enacted in 1966. Section 23157, subdivision (a)(1) provides: “Any person who drives a motor vehicle is deemed to have given his or her 759 consent to chemical testing … for the purpose of determining the alcoholic content of his or her blood, … if lawfully arrested for any offense allegedly committed in violation of Section 23152 or 23153. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23152 or 23153. The person shall be told that his or her failure to submit to … the required chemical testing will result in a fine [and various terms of license suspension or revocation, depending on the person's prior `drunk driving' record].” (Italics added.)

Section 23152 — one of the two substantive offenses referred to in section 23157 — provides: “It is unlawful for any person who is under the influence of an alcoholic beverage or any drug … to drive a vehicle.” (§ 23152(a), italics added.) The other substantive offense listed in section 23157 (§ 23153) contains identical operative language.[2]

Section 13353, subdivision (a), provides, “[i]f any person refuses the officer’s request to submit to … a chemical test… pursuant to section 23157, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 … and that the person had refused to submit to… the test … after being requested by the officer, the [DMV] shall … (3) revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within seven years of two or more separate violations of [other specified `drunk driving' statutes], which resulted in convictions.” Subdivision (c) of section 13353 provides for a hearing, if requested, on four issues, namely: “whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 …, whether the person was placed under arrest, whether the person refused to submit to … the test … after being requested by a peace officer, and whether … the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to … the test….” (See § 13558, subd. (c)(1) [operative July 1, 1990].)

(3) Hawkins, supra, 6 Cal.3d 757, explained the purpose and scope of our implied consent law: “Although it is clear under Schmerber that a person who has been lawfully arrested may have a blood sample forcibly removed without his consent, provided it is done in a reasonable, medically approved manner and provided further that the arresting officer had probable cause to believe that the arrestee was intoxicated, nevertheless such an episode remains an unpleasant, undignified and undesirable one.

760 “However, the shocking number of injuries and deaths on the highways caused by drunk drivers has compelled society to adopt extreme measures in response. By its enactment in 1966 of section 13353, the Legislature devised an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, by providing that such a person will lose his automobile driver’s license for a period of six months if he refuses to submit to a test for intoxication. The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion. It is noteworthy that in so doing, the Legislature took pains to condition its use upon a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was in fact so driving.” (6 Cal.3d at pp. 764-765, italics added.)

As Hawkins (supra, 6 Cal.3d 757) makes clear, the implied consent statute — and its attendant license suspension or revocation “penalty” — is an adjunct to the preexisting, and still valid rule of Schmerber, supra, 384 U.S. 757. In other words, regardless whether the terms of the implied consent statute are met, forcible, warrantless chemical testing may occur under the authority of Schmerber if the circumstances require prompt testing, the arresting officer has reasonable cause to believe the arrestee is intoxicated, and the test is conducted in a medically approved manner incident to a lawful arrest. With this important understanding in mind, we turn to the question of whether license revocation is proper in this case.

Initially, we emphasize the narrow scope of our implied consent statute as presently written. In three important respects our implied consent statute is substantially more circumscribed than those of our sister states.

(4a) First, as our Courts of Appeal have correctly held, unless a person is “lawfully arrested” (§ 23157, subd. (a)(1)) for a violation of the substantive offense of section 23152, he or she is not subject to license suspension or revocation under sections 23157 and 13353. (See Music, supra, 221 Cal. App.3d at p. 847; Padilla v. Meese (1986) 184 Cal. App.3d 1022, 1026 [229 Cal. Rptr. 310] [Padilla]; Henslee, supra, 168 Cal. App.3d 445, 451; Mueller v. Department of Motor Vehicles (1985) 163 Cal. App.3d 681, 684 [210 Cal. Rptr. 14]; Buttimer v. Alexis (1983) 146 Cal. App.3d 754, 758 [194 Cal. Rptr. 603]; § 13353, subd. (a).) Most implied consent statutes in other states are significantly less restrictive. Many specify that the triggering arrest may be for “any” offense arising out of acts alleged to have been committed while the person was driving under the influence (see U.S. Dept. of Transportation, Driver Licensing Laws Ann. (1980) pp. 162-165 [hereafter Driver Licensing Laws]); others require only the physical act of “any” arrest, and still others do not expressly require an arrest at all. (See 4 Erwin, Defense of Drunk Driving Cases (3d ed. 1990) § 33.04, p. 33-51, fn. 20.)

761 Second, our Courts of Appeal correctly acknowledge that Penal Code section 836, subdivision 1, which permits a warrantless arrest for a misdemeanor only when the officer “has reasonable cause to believe that the person to be arrested has committed a public offense in his presence” (italics added), governs arrests that occur under the implied consent statute. (See Music, supra, 221 Cal. App.3d at pp. 847-848 [a warrantless "arrest for misdemeanor drunk driving ... is invalid unless the police officer witnesses or perceives the act of driving under the influence"]; Padilla, supra, 184 Cal. App.3d 1022, 1026-1029; Henslee, supra, 168 Cal. App.3d 445, 451.) Our Legislature has enacted an exception to the common law rule of Penal Code section 836, subdivision 1, for “drunk driving” arrests made at or near an accident scene, or when a vehicle is found protruding into the street,[3] but neither exception applies when, as here, a vehicle is lawfully parked. Again, most states have statutes that are significantly less restrictive; many expressly exempt “drunk driving” arrests from the general rule that a warrantless arrest for a misdemeanor is permissible only when the arresting officer observes the offense occur in the officer’s presence.[4]

Finally, California is one of only six states that condition operation of its implied consent law on the act of “driving” (as opposed to “operating,” etc.) a vehicle. (Driver Licensing Laws, supra, at pp. 160-161; see, post, fn. 24.) And significantly, as explained below, California is one of only seven states that confines the substantive offense of “drunk driving” to the act of “driving” a vehicle. (Post, pp. 764-769.)

These attributes of our implied consent law, together and in combination, make our statute one of the narrowest, if not the narrowest, in the nation. Contrary to suggestions of the DMV and its amicus curiae, whether this is desirable or wise is not our duty to decide; our role is to construe the statute as enacted by our Legislature.

We now turn to the essential question posed in this case, namely, whether an officer may make a “lawful arrest” for “drunk driving” in violation of section 23152(a), if the arrestee’s vehicle is lawfully parked and the officer has not observed the vehicle move. On this point the lower courts are 762 divided. One line of cases holds the statutes require that the arrestee’s vehicle move, however short a distance, in the officer’s presence. (Music, supra, 221 Cal. App.3d 841, 850; see also Padilla, supra, 184 Cal. App.3d 1022, 1029; People v. Engleman (1981) 116 Cal. App.3d Supp. 14, 19 [172 Cal. Rptr. 474]; People v. Wilson, supra, 176 Cal. App.3d Supp. 1, 8-9 [dictum].) The contrary view, embraced by the Court of Appeal in this case, holds “driving” is established under the statutes if the arrestee, in the officer’s presence, “`actively asserts control over a vehicle and takes every step necessary to resume travel along the public road.’” (Quoting Henslee, supra, 168 Cal. App.3d 445, 451-452; see also People v. Hernandez (1990) 219 Cal. App.3d 1177, 1183-1184 [269 Cal. Rptr. 21] [dictum].)

Music, supra, 221 Cal. App.3d 841, and the decisions supporting it, reasons that the phrasing of section 23152(a) (making it illegal for an intoxicated person “to drive a vehicle”) discloses legislative intent that some vehicular movement, however small, be established as an essential element of the offense. The Court of Appeal below disagreed, asserting, “Any `reasonable person would construe the phrase “to drive a vehicle” … as encompassing any act or action which is necessary to operate the mechanism and controls and direct the course of a motor vehicle.’” (Quoting Wilson, supra, 176 Cal. App.3d Supp. 1, 6.)

The Court of Appeal concluded, “Where an intoxicated driver actually asserts such a degree of control over a vehicle stopped along a curb on a public street with its engine running that it is plain he will momentarily resume travel along the public roads, he is `driving’ in the sense intended in section 23152, subdivision (a) and provides a percipient police officer `reasonable cause to believe [the driver] has committed a public offense in his presence.’ (Pen. Code, § 836, subd. 1.) The mere fact that the vehicle never moved in [the officer's] presence does not invalidate [Mercer's] arrest for drunk driving under the circumstances of this case.” The court noted that the Legislature’s policy of deterring drunk driving supported a broad interpretation of the word “drive,” and suggested that absurd results would occur if police officers were made to wait for an intoxicated person to “lurch [the vehicle] forward” before making an arrest for drunk driving.

We are unpersuaded. Addressing the last point first, the Court of Appeal (and the DMV as well) appears to have overlooked the fact that the officer did not have to wait for Mercer to move his vehicle before making an arrest. On these facts, Mercer could have been arrested for attempted drunk driving (People v. Garcia (1989) 214 Cal. App.3d Supp. 1, 5 [262 Cal. Rptr. 915]) or public intoxication (Pen. Code, § 647, subd. (f); see People v. Engleman, supra, 116 Cal. App.3d Supp. 14, 19, and cases cited), and thereafter — pursuant to Schmerber, supra, 384 U.S. 757 — he could have been forced to 763 submit to a chemical test, regardless whether he met the separate requirements of section 23157 (i.e, “lawful arrest” for a violation of § 23152).

Beyond doubt, the Court of Appeal correctly perceived that there is a legislative policy favoring detection and prevention of drunk driving. (See Stats. 1985, ch. 735, § 1, p. 2386 [legislative intent regarding §§ 13353 & 23157].) And certainly this policy should be advanced to the extent permitted under the statutes as written. (5) The first step in our analysis, however, is to focus on the words used by the Legislature in order to determine their traditional and plain meaning. (See, e.g., Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal. Rptr. 460, 561 P.2d 1148].) (6) In doing so we are guided by the rule that because section 23152 is a penal statute, it should be strictly rather than broadly construed. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)

In everyday usage the phrase, “to drive a vehicle,” is understood as requiring evidence of volitional movement of a vehicle. Numerous dictionary definitions — including Webster’s Third New International Dictionary (1981), cited by the Court of Appeal below, support a definition of “drive” that includes movement. (See, e.g., id., at p. 692.)[5] We believe these definitions are consistent with the usual and ordinary understanding of that term, and suggest the sense in which the word was intended by the Legislature in the present context.

The use of similar terms in related statutes also suggests the Legislature intends the word “drive” in section 23152(a) to have a narrow rather than broad scope. Section 305, defining the noun “driver” for purposes of construing the Vehicle Code, provides, “A `driver’ is a person who drives or is in actual physical control of a vehicle….” Section 13353.2 likewise states the DMV “shall immediately suspend the privilege of any person to operate a motor vehicle if the person was driving or was in actual physical control of a motor vehicle” while having a prescribed blood-alcohol level. Similarly, section 12501 states that certain persons “driving or operating” vehicles are exempt from the general rule requiring a “driver’s license.” (Id., subds. (b) & (c).) The use of the disjunctive “or” in these statutes suggests the Legislature recognizes a distinction between one who “drives” a vehicle and one who “operates” or “is in actual physical control of” a vehicle, and that the 764 Legislature knows how to broaden the scope of coverage when it wants to do so.[6]

Any doubt about our understanding of the word “drive” is dispelled by decades of case law holding that the word “drive,” when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle. (See, e.g., Underwood v. State (1931) 24 Ala.App. 191 [132 So. 606, 607]; State v. Graves (1977) 269 S.C. 356 [237 S.E.2d 584, 586-588] [Graves]; Annot. (1926) 42 A.L.R. 1498, 1501; Annot. (1956) 47 A.L.R.2d 570, 573; Annot. (1979) 93 A.L.R.3d 7, 15.) The analysis employed in Graves, supra, 237 S.E.2d 584, is typical. The court noted that the South Carolina statute — which like section 23152(a) prohibits “any person … who is under the influence [of alcohol, etc.], to drive any vehicle” — is penal in nature. Thus, the court reasoned, “we must approach its interpretation by invoking the rule of strict statutory construction and resolve any uncertainty or ambiguity against the State….” (Graves, supra, 237 S.E.2d at p. 586.)

The Graves court observed that South Carolina’s statute (like ours) was modeled after the original “Uniform Act Regulating Traffic on Highways, which is a substantial adoption of the uniform act by the same name that was approved by the National Conference of Commissioners of Uniform State Laws, 1926, as revised in 1930…. This uniform act served as the basis for the motor vehicle codes of numerous states….” (237 S.E.2d at p. 586.) As Graves noted, however, several states adopted amended versions of the uniform act and thereby prohibited an intoxicated person from “driving or operating” a motor vehicle. (Ibid.)[7] The court observed that the South Carolina Legislature — like ours — had “proscribed only driving a motor vehicle while intoxicated, and did not proscribe operating.” (237 S.E.2d at p. 586.) It continued:

“The distinction between these terms is material, for it is generally held that the word `drive,’ as used in statutes of this kind, usually denotes 765 movement of the vehicle in some direction, whereas the word `operate’ has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle.” (Graves, supra, 237 S.E.2d at p. 586.)[8]

Graves concluded that under South Carolina’s statute, “the word `drive’ requires the vehicle to be in motion to constitute the offense,”[9] and invited the Legislature to amend the statute by adding the words “or operate” if it wished to broaden the scope of the drunk driving law. (237 S.E.2d at p. 586.)[10]

Although as Graves observed, many states originally enacted statutes similar to section 23152(a), today only six states in addition to California 766 have a statute that prohibits simply “driving” a vehicle while intoxicated. (Colo. Rev. Stat. § 42-4-1202, subd. (1); N.M. Stat. Ann. § 66-8-102(A); N.C. Gen. Stat. § 2-138.1; Ore. Rev. Stat. § 813.010(1); S.C. Code Ann. § 56-5-2930; W. Va. Code § 17C-5-2.) Most states that had “driving” statutes have subsequently broadened them to prohibit “driving or operating” or simply “operating” a vehicle (e.g., Indiana,[11] New York[12] and Delaware[13]), or “driving or being in [or `having'] actual physical control” of a vehicle (e.g., Arizona,[14] Wyoming[15] and Maryland[16]).

Accordingly, 43 states today have statutes that prohibit “driving or being in actual physical control” of a vehicle (e.g., Florida, Georgia, Washington 767 and Montana), or “driving or operating” a vehicle (e.g., Alaska, Mississippi, Texas, Virginia and Wisconsin), or “operating” a vehicle (e.g., Indiana, Massachusetts, Michigan and New Jersey),[17] and the overwhelming majority of those statutes have been interpreted as ascribing to the italicized terms a broad scope not limited to or dependent on volitional movement of a vehicle.[18] In fact, most cases uphold a finding of “operation” or “being in actual physical control” even when, as in the present case, the arrestee was found asleep, slumped over the steering wheel of an operable car with its engine running.[19]

Of our six sister states that have retained statutes that prohibit simply “driving,” it appears five have directly addressed the question whether evidence of volitional movement must be established to constitute “driving.” Two — South Carolina and West Virginia — have interpreted that term as requiring evidence of volitional movement. (Graves, supra, 237 S.E.2d 584, 586-588 [discussed ante]; State v. Taft, supra, 102 S.E.2d 152, 154 [volitional "movement of a vehicle is an essential element of the statutory requirement"].) North Carolina, relying on related state statutes, has determined its legislature intended that “drive” be synonymous with “operate,” 768 and therefore motion need not be established. (State v. Coker, supra, 323 S.E.2d 343, 347.)[20] Finally, Colorado and New Mexico have interpreted “drive” as meaning “actual physical control,” and hence not requiring evidence of movement. (Brewer v. Motor Vehicle Div., Dept. of Rev. (Colo. 1986) 720 P.2d 564, 566-567; Boone v. State (1987) 105 N.M. 223 [731 P.2d 366, 368-369].)

In light of the above history and interpretation of similar statutes throughout the country, the position taken by the Colorado and New Mexico courts is unpersuasive. Each court premised its interpretation of “drive” on the assumption that its legislature intended to define “drive” as meaning “actual physical control” of a vehicle. For this proposition each court relied exclusively on the fact that its statute — like ours (§ 305, quoted, ante, p. 763) and those of 20 other states[21] — defines the noun “driver” as one who “`drives or is in actual physical control’” of a vehicle. (Brewer v. Motor Vehicle Div., Dept. of Rev., supra, 720 P.2d 564, 567, quoting Colo. Rev. Stat. § 42-1-102(22); Boone v. State, supra, 731 P.2d 366, 368, quoting N.M. Stat. Ann. § 66-1-4(B)(18).) But as we noted above (ante, p. 763), the presence of the disjunctive “or” in the quoted definition discloses legislative intent that a distinction be drawn between the verb “drive” and the concept of “actual physical control,” and thus it is improper to conclude, as did the Colorado and New Mexico courts, that the two terms are synonymous. (See Graves, supra, 237 S.E.2d 584, 587 (rejecting view advanced by Brewer and Boone under identical statutory language);[22] accord, Brewer, supra, 720 P.2d 564, 570-571 (Erickson, J., conc.).)

(4b) Based on (i) the “plain meaning” of the statutory term “drive,” (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word “drive” and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle. The proposal of the DMV and its amicus curiae — i.e., that we should ignore these factors in order to effectuate what is asserted to be a better result in terms of social policy — evinces a fundamental misunderstanding about the nature of statutory construction and the 769 role of courts in our system of government. Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest is permissible only if a public offense occurs in the arresting officer’s “presence,” and because the officer in this case did not see Mercer’s vehicle move, we conclude Mercer was not “lawfully arrested” for a violation of section 23152(a) and thus cannot be subjected to the license revocation provisions of sections 23157 and 13353 as presently written.[23]

We emphasize that our Legislature is free to revise the relevant statutes — as have many of our sister states — to yield a result requiring license suspension or revocation on the facts of this case.[24] Although policies favoring deterrence may militate in favor of such a change, we also recognize there are legitimate policy reasons that would support a decision to retain the current narrow statutory scheme, including the policy of encouraging intoxicated drivers to stop driving and safely park their cars until they become sober. As noted above, however, this determination rests with the Legislature, and not with the courts.

In any event, we emphasize that even if the Legislature declines to amend the statutes, the police are not rendered impotent to act. (7) They may, without a warrant, arrest a person such as Mercer for “attempted drunk driving” or public intoxication (Pen. Code, § 647, subd. (f)),[25] and thereafter force the arrestee to submit to chemical testing under the authority of Schmerber, supra, 384 U.S. at pages 766-772 [16 L.Ed.2d at pages 917-920], and Hawkins, supra, 6 Cal.3d at page 761. Nor does the requirement of observed volitional movement under the implied consent/license revocation 770 statutes call in question the propriety of convictions under section 23152 based on mere circumstantial evidence of vehicle movement. (See e.g., Wilson, supra, 176 Cal. App.3d Supp. 1, 8-9, and cases cited.)

III. Conclusion

The judgment of the Court of Appeal is reversed.

Mosk, J., Panelli, J., Kennard, J., Arabian, J., and Baxter, J., concurred. Broussard, J., concurred in judgment.

[1] All future references are to the Vehicle Code unless otherwise indicated.

[2] Section 23153 makes it illegal to “drive” a vehicle while under the influence of alcohol or drugs, and, when so driving, to proximately cause bodily injury to another person. (Id., subd. (a); see also id., subd. (b).) Because the operative language of the two sections is the same, future references in this opinion to section 23152(a) should be read to include section 23153.

[3] Section 40300.5 allows an officer to make a warrantless misdemeanor arrest without having reasonable cause to believe an offense has been committed in the officer’s presence, in two circumstances: arrest of a person “involved in a traffic accident” and arrest of a person “observed by a peace officer in or about a vehicle which is obstructing a roadway, when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug….” (See also § 40300.6 [§ 40300.5 "shall be liberally interpreted ... to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident...."].)

[4] (See, e.g., Idaho Code § 49-1405(b) & (c); Mo. Rev. Stat. § 577.039; Nev. Rev. Stat. § 484.791(1)(b) & (c); N.J. Rev. Stat. § 39:4-50.4a, par. 2; Ore. Rev. Stat. § 133.310(1)(e); 75 Pa. Cons. Stat. § 3731(c); Wash. Rev. Code § 10.31.100(3)(d).)

[5] “1: to set and keep in motion or in action through application of some amount of force: a: to impart an onward or forward motion to by expenditure of physical force … b: to impart violent motion or great impetus to….” (See also Flournoy v. State (1962) 106 Ga. App. 756 [128 S.E.2d 528, 530] ["the word `drive,' as used in statutes of this kind, usually denotes movement of the vehicle in some direction (see Webster's Unabridged Dictionary) ..."].)

[6] We observe that our state’s first “drunk driving” statute, enacted in 1913, made it illegal for an intoxicated person to “operate or drive” a vehicle. (Stats. 1913, ch. 326, § 17, p. 646.) This phasing was retained through various amendments until 1923, when the statute was revised to read as it does today, i.e., it is illegal for an intoxicated person to “drive a vehicle.” (Stats. 1923, ch. 266, § 112, p. 553.) Although we have discovered no authority explaining the reason for or significance of the 1923 revision, we note that as early as that year, courts construing “drunk driving” statutes drew distinctions between the terms “driving” and “operating,” and held that although “driving” requires evidence of movement, “operating” does not. (See Annot. (1926) 42 A.L.R. 1498, 1501; see also, post, pp. 764-767.)

[7] In 1938, the drafters of the Uniform Vehicle Code amended its language to read as it does today, making it illegal to “drive or be in actual physical control of any vehicle….” (See Nat. Com. on Uniform Traffic Laws and Ordinances, Traffic Laws Ann. (1979) § 11-902(a)(2), p. 255 [historical note], italics added; Uniform Vehicle Code and Model Traffic Ordinance (1987) § 11-902(a), p. 65 [present provision].)

[8] Accord, Thomas v. State (1976) 277 Md. 314 [353 A.2d 256]: “`[T]he term “driving” is encompassed within the term “operating”; but the reverse is not necessarily so. One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it. Otherwise stated: while all driving is necessarily operation of a motor vehicle, not all operation is necessarily driving.’” (Id., at p. 259, quoting McDuell v. State (Del. 1967) 231 A.2d 265, 267.) See also, e.g., Williams v. State (1965) 111 Ga. App. 588 [142 S.E.2d 409, 411] (“[T]he offense of operating an automobile while under the influence of intoxicants can be committed without driving it, but the offense of driving while under the influence can not be committed without operating the car.”); Jacobson v. State (Alaska 1976) 551 P.2d 935, 937; Gallagher v. Commonwealth (1964) 205 Va. 666 [139 S.E.2d 37, 39]; Bradam v. State (1950) 191 Tenn. 626 [235 S.W.2d 801, 802-803].

[9] Other states have construed “drive” the same way.

See, e.g., McDuell v. State, supra, 231 A.2d 265, 268 (construing former Del. Code Ann. tit. 21, § 4176); Poling v. State (1973) 156 Ind. App. 145 [295 N.E.2d 635, 637] (construing former Ind. Code § 9-4-1-54 (1971)); State v. Taft (1958) 143 W. Va. 365 [102 S.E.2d 152, 154] (construing W. Va. Code § 17C-5-2); see also Bradam v. State, supra, 235 S.W.2d 801, 803 (construing former Tenn. Code Ann. § 10827); Gallagher v. Commonwealth, supra, 139 S.E.2d 37, 39 (construing Va. Code Ann. § 18.1-54).

Wisconsin has codified this “common law definition” of “drive” in a statute that proscribes “driving or operating” a vehicle while intoxicated. (County of Milwaukee v. Proegler (1980) 95 Wis.2d 614 [291 N.W.2d 608].) The Proegler court noted that whereas an earlier version of the statute expressly required movement of a vehicle as an element of the statutory violation, “[i]n 1977, the legislature changed the statutory scheme to differentiate between `drive’ and `operate’….” The revised statute provides: “(a) `Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion. [¶] (b) `Operate’ means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” (291 N.W.2d at p. 613, quoting Wis. Stat. § 346.63(3).)

The North Carolina Legislature has rejected the common law definition of “drive,” and broadly defined that term as including, inter alia, “operation.” Accordingly, North Carolina courts have upheld convictions under that state’s “driving” statute even in the absence of evidence of volitional vehicle movement. (State v. Fields (1985) 77 N.C. App. 404 [335 S.E.2d 69, 70], applying State v. Coker (1984) 312 N.C. 432 [323 S.E.2d 343, 347] [interpreting N.C. Gen. Stat. §§ 20-138.1(a), 20-4.01(7) & 20-4.01(25)].) The Maryland Legislature has similarly redefined “drive” as including, inter alia, “operation” of a vehicle. (Gore v. State (1988) 74 Md. App. 143 [536 A.2d 735, 739] [applying Md. Transp. Code Ann. § 21-902(a)].)

[10] The South Carolina statute remains the same today. As noted below, however, other legislatures have been quick to amend “driving” statutes following narrow interpretation of that word by reviewing courts.

[11] See Poling v. State, supra, 295 N.E.2d 635, 637 (construing prior “driving” statute, former Ind. Code § 9-4-1-54 (1971), as requiring evidence of volitional motion); and Rose v. State (1976) 168 Ind. App. 674 [345 N.E.2d 257, 259-260] (construing amended statute, Ind. Code § 9-4-1-54(b) (1971), as not requiring evidence of volitional motion).

[12] See Siff v. New York State Department of Motor Vehicles (1987) 123 A.D.2d 787 [513 N.Y.S.2d 482] (noting the legislature amended N.Y. Veh. & Traf. Law § 1194, subd. 1 “by substituting `operating’ for `driving’”).

[13] Former Delaware Code Annotated title 21, section 4111 prohibited an intoxicated person from “operating” a vehicle. In State v. Prichett (Del. 1961) 173 A.2d 886, the court construed that statute as permitting conviction of an intoxicated person who was slumped over the steering wheel of a motionless car with its engine running. (Id., at pp. 891-893, construing former statute.) Thereafter the legislature revised the statute, substituting the word “drive” for “operate.” (Former Del. Code Ann. tit. 21, § 4176.) The court in McDuell v. State, supra, 231 A.2d 265, noted the above-discussed distinction between the words “drive” and “operate” (id., at p. 267), and concluded: “Presumably, the General Assembly was aware of [Prichett] and its discussion of the different meanings attributed to the statutory language here involved. Apparently, the Legislature made the changes advisedly, intending thereby to remove `standing’ violations from the operation of the Statute.” (Id., at pp. 267-268.) The court concluded the new section “creates a newly limited offense” (id., at p. 268), and that under the new statute “the vehicle must be in motion in order for the act proscribed by the statute to be committed.” (Ibid.) Subsequently the Delaware Legislature again revised its statute, which currently makes it illegal for a person to “drive, operate, or have in actual physical control” a vehicle. (Del. Code Ann. tit. 21, § 4177.)

[14] In State v. Webb (1954) 78 Ariz. 8 [274 P.2d 338], the court construed a revision to the Arizona drunk driving statute. It observed that former Arizona Revised Statutes Annotated section 66-402 (1939), made illegal “driving” while intoxicated. The Webb court noted that the prior statute had been construed to apply “only in cases where the vehicle was in motion [citations]. In enacting the new law, the word `drive’ was retained, and the words `or be in “actual physical control”‘ were added in the disjunctive. The conclusion we draw therefrom is that the legislature intended the present law to embrace fact situations not covered by the old, more particularly the legislature intended the law should apply to persons having control of a vehicle while not actually driving it or having it in motion.” (274 P.2d at p. 339, italics in original.)

[15] In Adams v. State (Wyo. 1985) 697 P.2d 622, the court observed that by revising Wyoming Statutes section 31-5-233(a) to make it illegal to “drive, or have actual physical control of” a vehicle, the Legislature intended to broaden the scope of the statute to cover those “having control of a vehicle while not actually driving it or having it in motion.” (697 P.2d at pp. 624-625, italics added.)

[16] Compare Thomas v. State (1976) 277 Md. 314 [353 A.2d 256] (construing former Md. Ann. Code art. 66 1/2, § 11-902(b)), with Gore v. State, supra, 536 A.2d 735, 738-739 (construing Md. Transp. Code Ann. § 21-902(a)).

[17] See statutes collected in 4 Erwin, Defense of Drunk Driving Cases, supra, statutory appendix.

[18] See, e.g., Flournoy v. State, supra, 128 S.E.2d 528, 530-531 (construing “operate” in 1953 Ga. Laws 566, 575, art. V., § 47); Commonwealth v. Uski (1928) 263 Mass. 22 [160 N.E. 305, 306] (construing “operates” in Mass. Gen. L. ch. 90, § 24); State v. Ruona (1958) 133 Mont. 243 [321 P.2d 615, 618-619] (construing “actual physical control” in Mont. Rev. Code § 32-2142(1)(a) (1947)); State v. Sweeney (1962) 77 N.J. Super. 512 [187 A.2d 39, 44-45] (construing “operates” in N.J. Rev. Stat. § 39:4-50); Prudhomme v. Hults (1967) 27 A.D.2d 234 [278 N.Y.S.2d 67, 69-70], and cases cited (construing “operating” and “operate” in N.Y. Veh. & Traf. Law § 1192 [drunk driving statute] and id., § 1194, subd. 1 [implied consent law]); Hughes v. State (Okla. Crim. App. 1975) 535 P.2d 1023 (construing “actual physical control” in Okla. Stat. tit. 47, § 11-902(a)); and Gallagher v. Commonwealth, supra, 139 S.E.2d 37, 40 (construing “operate” in Va. Code Ann. § 18.1-54)).

The Texas Court of Appeals embraces a contrary interpretation and holds volitional movement is necessary for “operation.” (Reddie v. State (Tex. Ct. App. 1987) 736 S.W.2d 923, 926-927.) The Ohio trial courts appear split on the issue. (Compare State v. Williams (1969) 20 Ohio Misc. 51 [251 N.E.2d 714, 717-718] [movement required], with State v. Wymbs (1984) 10 Ohio Misc.2d 26 [462 N.E.2d. 195, 196-197] [movement not required].)

[19] See, e.g., County of Milwaukee v. Proegler, supra, 291 N.W.2d 608, 612-613; Jacobson v. State, supra, 551 P.2d 935, 937-939; State v. Webb, supra, 274 P.2d 338, 340; Hughes v. State, supra, 535 P.2d 1023, 1024; State v. Ruona, supra, 321 P.2d 615, 616-618; State v. Lariviere (1963) 2 Conn.Cir. 221 [197 A.2d 529, 531-532]; People v. Pomeroy (1979) 88 Mich. App. 311 [276 N.W.2d 904, 906]; and Commonwealth v. Kloch (1974) 230 Pa.Super. 563 [327 A.2d 375, 383-384].

New Jersey has adopted a contrary view, requiring a showing of intent to move a vehicle. (See State v. Daly (1973) 64 N.J. 122 [313 A.2d 194, 93 A.L.R.3d 1].) Numerous courts have rejected New Jersey’s position, noting that “drunk” driving or operating of a vehicle is a general intent crime. (See State v. Miller (1990) 309 Ore. 362 [788 P.2d 974, 975-978]; Joiner v. State (1955) 161 Tex.Crim. 526 [279 S.W.2d 333, 334]; State v. Storrs (1933) 105 Vt. 180 [163 A. 560, 562].)

[20] The Coker court based its interpretation on North Carolina General Statutes section 20-138, which, unlike our statute or that of any other state, defines “`driver’ … simply as an `operator’ of a vehicle….” (323 S.E.2d at p. 347.)

[21] See Driver Licensing Laws, supra, section 1-114, at pages 2-3.

[22] The Graves court stated: “Section 56-5-400 [of the South Carolina Code] defines `driver’ as `Every person who drives or is in actual physical control of a vehicle …’ It would seem clear that the statute provides two distinct definitions of `driver,’ for `driving’ and `being in actual physical control’ can describe the same activity only if we treat the phrase `or is in actual physical control’ as useless baggage. Such a construction would run counter to the principle that `a statute should be so construed that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous….’” (237 S.E.2d at p. 587.)

[23] Like the Music court, we decline to interpret Henslee, supra, 168 Cal. App.3d 445, as being inconsistent with this opinion. (Music, supra, 221 Cal. App.3d at pp. 848-850 ["[A]s we read … Henslee, if the driver does not move the vehicle in the officer’s presence at least a few inches, the offense of driving under the influence has not occurred in the officer’s presence.”].) We reject the present Court of Appeal’s contrary interpretation of Henslee.

[24] The Legislature could, for example, exempt “drunk driving” arrests from the “presence” requirement of Penal Code section 836 (cf. § 40300.5); or it could amend the drunk driving statutes so they apply to any person who “drives or operates” (or who is in “actual physical control of”) a vehicle; or it could amend sections 23157 and 13353 so they apply to arrests for attempted drunk driving.

If the Legislature takes action, it might also consider resolving a related problem involving interpretation of sections 13353 and 23157 that has divided the Courts of Appeal, but which is not presented in this case. (Compare Medina v. Department of Motor Vehicles (1987) 188 Cal. App.3d 744, 750-751 [233 Cal. Rptr. 557], and Jackson v. Pierce (1990) 224 Cal. App.3d 964, 967-972 [274 Cal. Rptr. 212], with Rice v. Pierce (1988) 203 Cal. App.3d 1460, 1466 [250 Cal. Rptr. 832].)

[25] On these facts it appears Mercer violated Penal Code, section 647, subdivision (f), because (i) he was intoxicated in a public place (see People v. Kelley (1969) 3 Cal. App.3d 146, 150, fn. 2 [83 Cal. Rptr. 287]) and (ii) he was unable to exercise care for his own safety or the safety of others (see People v. Engleman, supra, 116 Cal. App.3d Supp. 14, 19, and cases cited).

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March 13th, 2010

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DR. DUI Trademark. California’s premier DUI Attorney

March 13th, 2010

 

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Here goes number 5

March 11th, 2010

I am in the 5th trial of the year so far (that was fast). This one is in Lancaster.

Kind Regards,

Okorie Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
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Newport Beach DUI Lawyer and Case Process

March 6th, 2010

The timeline of what happens in a DUI Case

When you hire 99% of the firms that called themselves the Driving Under the Influence or DUI,  firms what you get is a high bill from lawyers who will not tell you their trial fee, cannot give you the case number and number of a case they have gone to trial on anywhere in the free world in the last year (this is all public record) and they plead you to the same exact deal that you could’ve gotten by yourself if you just showed up by yourself and talked to the prosecutor.  If the attorney does not go to trial, he is just one of those plea bargainers who really does not get you a deal and just steals your money.  They always tell you that you do not want to go to trial and trials are bad,  you should avoid trial and all kinds of other nonsense.  They tell you how they can get you a good deal without trial and all that other propaganda and you are really just getting the same deal that you would have gotten had you just shown up yourself.  I see this every day in court.  These lawyers lying and saying they got you a good deal, the same deal you could have gotten yourself…  It is a good deal…  a good deal for the lawyer who gets thousands of dollars and does not have to do a trial and work for it.  Many of them have no idea how to do a trial.  They have you plead guilty and they keep your money these lawyers are always available all hours of the day because they are done pleading all of their clients guilty by 10 AM daily

When you hire our firm, we have the mind-set that every case will go to trial, but  this does not mean that we do not ever plea-bargain. But if you have a reputation as an attorney for plea-bargaining you will never get a good deal because the prosecutor knows you will never do anything about it if they give you a bad offer.  Also,  if you have the mentality of just trying to give in an plead your client guilty and keep the money, the prosecutor has no incentive to give you a good deal.  When we do deal, the best deals have come on the first day of trial right before selecting a jury.

Procedure

The court case proceeds as follows: the first hearing is typically the arraignment and all that means there is that the judge just tells you what the charges are, which you already know, you do not need to appear unless it is a felony and we tell you that you have to appear and/or we just tell you that you have to appear.  We always enter a not guilty plea and get the documents such as the police report and related documents from the prosecutor. The police report just contains all lies the police wrote and they lie every time. Every hearing after that is just a hearing checking in with the judge and they are usually every 30 days as required and sometimes we have motions to get the prosecutor to turn over more evidence that we will that we need such as calibration and maintenance records on breath machines used to test the client.  These hearings are generally of no legal significance whatsoever unless we advise you otherwise and do not need to attend if unless we tell you so.  Whenever we need you to do something we let you know well in advance, but it is out practice to handle everything.  The case usually proceeds in this manner for about 6 months.  But, if the client just wants the case over with, we will get you your trial within 45 days which is the fastest we can get it done by law. We do like to age cases because things typically just get better the older, that is just our experience. There is no downside to going to trial because in the event we lose at trial and there is a sentencing hearing, the judge cannot punish you for exercising your constitutional right to a jury trial no more than he can punish you for your constitutional right to use an attorney or the Fifth Amendment and not take the witness stand and we always go over this with the judge before the trial starts this is to make sure that you are protected. In the event the judge was to violate the law we can always have your sentence stayed because you are entitled to bail on misdemeanors pending appeal so if it ever happens, which it has not, we would file a notice of appeal and post bail. The bail according to the schedule would be $5000 which means you would only have to pay a bondsman $400 and we would be happy to pay that for you.  We have NEVER had this problem or a client jailed for going to trial or even such an issue come up.

So there is nothing really to discuss until trial the police report is usually generally irrelevant it doesn’t matter what it says we have the antidote we’ve taken is to trial the matter how bad the police report seems and been successful there is no police report that cannot be overcome or has not been defeated in the past.  Now there are no guarantees in this business but there are no police reports that are foolproof and generally the police report for our purposes are only good for making the officer who wrote it look like an idiot at trial which we do quite well.  The Police report is useless to everyone, until we have the officer and can embarrass him.  We do this very well.  

So till the trial is around the corner, we do not usually have any updates on the case and/or ever get any information that the client would be interested in, but we would be sure to call if we did. We are happy to hear from a client by phone or email 24 hours a day as many times as the client wishes, we just may not have any news and would call you if we had news. 

The DMV

The DMV procedure is a rather simplistic. You are entitled to a hearing and at that hearing, the DMV prosecutor is the DMV Judge, generally someone with only a high school education although there are some good DMV Hearing officers.  Now you can just imagine for example if I was the defense attorney and the Judge in all of my cases I would win every case and the DMV statistics they publish are generally a 100% victory rate for them. The DMV may say it’s 99%,  but those are only rare cases where the police botched something and/or lost a blood sample or something.

THE ONLY INFORMATION THE DMV CONSIDERS AT THESE HEARINGS IS THE POLICE REPORT WHICH YOU CAN IMAGINE IS NOT HELPFUL. 

We sometimes use the DMV hearings to elicit officer testimony at that time by issuing a subpoena to the police officer to appear at the DMV hearing, but often times this is avoided because we don’t want the officer to know the approach we will take at the time of trial and want to catch them off guard.  There is no need for client participation in the DMV hearing because we do not want the client questioned or to testify because it that can be used against the client at trial. You will be given plenty of notice of when your suspension is to start if there is one either by our office or the DMV the minimum notice is two weeks.  The suspension on a first DUI is 30 days after which you get a restricted license for work and alcohol classes.  We have never had a client get in trouble while using a restricted license, but if you are pulled over and the officer asks you where you are going to find out if you are using the license for work.  Refuse to answer any questions and ask for a lawyer.  DO NOT DISCUSS ANYTHING WITH THE OFFICER.

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Dr. DUI on the Junk Science of Breathalyzers

March 3rd, 2010

Here is what you need to know about breathalyzers:

Okorie “Dr. DUI” Okorocha, Attorney  (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
Nationally Board Certified Criminal Trial Lawyer
*By the only National Board recognized by the State Bar of California
Named to SuperLawyers 2010
Named Top DUI Lawyer for 2009
toll free: 800 285 1763
toll free Fax: 888 286 1840

“[Mr. Okorocha] is more specialized than any other lawyer that we have ever have in court”  –20 Year DUI Prosecutor on the skills of Mr. Okorocha–

“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry

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