Wednesday, April 30, 2008

10 year California DUI look-back period in California DMV case

California DUI attorney news

Filed 4/29/08 Hoek v. Cal. Dept. Motor Vehicles CA2/2


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Plaintiff and Appellant,



Defendant and Respondent.
(Los Angeles County

Super. Ct. No. BS104492)

APPEAL from a judgment of the Superior Court of Los Angeles County. Dzintra I. Janavs, Judge. Affirmed.

Scott Gailen, Inc., Scott Gailen and Theodore Cox for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Celine Cooper and Dana T. Cartozian, Deputy Attorneys General, for Defendant and Respondent.

* * * * * *

Appellant Cynthia Louise Hoek (Hoek) was convicted in California of driving under the influence of alcohol (DUI) offense. Hoek was subsequently convicted of a DUI offense in Minnesota. Because these two convictions occurred within 10 years of one another, respondent California Department of Motor Vehicles (the DMV) suspended Hoek’s California driving privilege pursuant to Vehicle Code section 13352, subdivision (a)(3)1 for two years. Hoek challenged the suspension by filing a petition for administrative mandamus, which the trial court denied. We affirm.


On October 8, 1997 Hoek was convicted in the Superior Court of Los Angeles County of violating section 23152, subdivision (b), driving with a blood-alcohol concentration of 0.08 percent or higher. The violation date was August 19, 1997. Pursuant to the plea agreement, Hoek was ordered to enroll and complete an alcohol program, pay a fine and remain on probation for 36 months. The standard plea waiver form that Hoek signed included a chart listing the minimum and maximum penalties for a second offense occurring within seven years.2

Nine years later, on March 16, 2006, Hoek was convicted in the State of Minnesota of violating Minnesota statute 169A.20, subdivision 1(5), driving “[w]hen the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more.” The violation date was December 28, 2005.

On May 4, 2006 the DMV, having been advised by the State of Minnesota of Hoek’s Minnesota DUI conviction, served Hoek with an order of suspension, notifying her that her California driving privilege was suspended for a period of two years effective March 16, 2006. The DMV notified Hoek that the suspension was pursuant to section 13352, subdivision (a)(3). On July 3, 2006, the State of Minnesota Department of Public Safety notified Hoek that she was entitled to reinstatement of her Minnesota driving privilege upon the payment of a fine and the passing of a written test.

Hoek filed a petition for administrative mandamus challenging the DMV’s suspension of her driving privilege. Ten months later she filed a memorandum of points and authorities in support of her petition, which the DMV opposed. Following a hearing, the trial court denied Hoek’s petition. Judgment was entered against Hoek and she was ordered to pay the DMV’s costs of $320. This appeal followed.3


Standard of Review4

In ruling on an application for a writ of mandate following an order of suspension or revocation by the DMV, a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456–457.) On appeal, we determine whether the trial court’s factual findings are supported by substantial evidence and independently review its legal determinations. (Ibid.)

The DMV Properly Suspended Hoek’s Driving Privilege Based on Her Out-of-State DUI Conviction

A. Section 13352 Mandates Suspension

Section 13352, subdivision (a) provides that the DMV “shall immediately suspend or revoke the privilege of a person to operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the person has been convicted of a [DUI] violation of Section 23152 . . . .” Under section 23540, subdivision (a), if a person suffers a second DUI conviction under section 23152 within ten years of a separate DUI violation, that person’s driving privilege shall be suspended as set forth in section 13352, subdivision (a)(3), which specifies a suspension period of two years.

Hoek argues that because her second DUI offense involved the violation of a Minnesota statute, as opposed to the violation of section 23152, the DMV’s suspension of her California driving privilege was improper. The DMV counters that its suspension action was properly taken where, as here, the licensee violated a Minnesota statute that is found to be substantially the same as section 23152. To that end, the DMV points out that the State of California, through the DMV, is a party to the “Driver License Compact” (§§ 15000–15028), under which party states are required to report to a licensee’s home state convictions of a licensee in a party state. The home state must treat the out-of-state conviction as having been committed in the home state, so long as the convictions are of a “substantially similar nature.” (§ 15023, subd. (c).) The DMV also cites to section 13363, which gives the DMV discretion to suspend licenses based on out-of-state convictions, provided that the law of the other state pertaining to the conviction is “substantially the same” as the law of this state. (§ 13363, subds. (a) & (b).)

But we think the answer to the question of whether the DMV could properly suspend Hoek’s driving privilege for two years based on her out-of-state DUI conviction is more readily answered by a statutory provision not cited by either party or the trial court.5 Section 13352, subdivision (d) states: “A conviction of an offense in a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or Canada that, if committed in this state, would be a violation of Section 23152, is a conviction of Section 23152 for the purposes of this section, . . . . The department shall suspend or revoke the privilege to operate a motor vehicle pursuant to this section upon receiving notice of that conviction.”

Hoek does not argue that her Minnesota offense would not be a violation of section 23152 if committed in this state. To the contrary, she acknowledges that had both offenses taken place in California, the DMV would have been justified in suspending her California driver’s license. Accordingly, pursuant to section 13352, subdivisions (a)(3) and (d), the DMV was required to suspend Hoek’s California driving privilege upon receiving notice of her Minnesota DUI conviction. We therefore find Hoek’s remaining arguments challenging the suspension action to be without merit, as discussed below.

B. No Violation of Plea Bargain

Hoek argues that the suspension of her California driving privilege was improper because it violated the terms of her plea bargain. She points out that the standard plea waiver form she signed specified the maximum penalties for a second DUI offense occurring within seven years. Because her second DUI conviction in Minnesota occurred more than seven years after her California DUI conviction, she reasons that she should have been “home free.” But this argument was expressly rejected in People v. Sweet (1989) 207 Cal.App.3d 78 (Sweet) and later in People v. Forrester (2007) 156 Cal.App.4th 1021 (Forrester), which we find to be controlling.

In Sweet, at the time of the defendants’ prior DUI convictions, five years was the maximum period in which prior convictions could be used to enhance the punishment on a new DUI offense. The law was later amended to extend the time frame to seven years. The defendants reoffended more than five years but less than seven years after their prior convictions, which were used to enhance the penalty on their current convictions. (Sweet, supra, 207 Cal.App.3d at p. 81.) The defendant in Forrester found himself in the same predicament, except that the statute had been amended to extend the seven years to 10 years. (Forrester, supra, 156 Cal.App.4th 1021.)

Like Hoek, the defendants in those cases argued that the use of their prior convictions to enhance the punishment for their current convictions violated their plea agreements. These arguments were rejected. Neither the Sweet nor Forrester courts found anything in the records to support the arguments that the defendants had contracts or implied promises in exchange for their pleas to the prior convictions that those convictions were usable only for the time frame set forth in the plea waiver forms. As the Forrester court noted, the chart on the waiver form listing the penalties for a second DUI offense simply provided information concerning the relevant law at the time. (Forrester, supra, 156 Cal.App.4th at p. 1025.) The courts found there was no language in the plea agreements nor evidence presented that the defendants entered their pleas in reliance on the information in the chart. Furthermore, the courts concluded that any such reliance would have been unreasonable. (Sweet, supra, 207 Cal.App.3d at p. 85; Forrester, supra, at p. 1025.) The same is true here.

C. No Violation of Ex Post Facto Clause

Without citation to any authority, Hoek argues that she was subjected “to ex post facto punishment” because the law extending the time frame from seven years to 10 years in which to use a prior DUI conviction to increase the penalty for a new DUI conviction became effective more than seven years after her first conviction. Even assuming Hoek has not waived this argument by her failure to cite applicable authority or present reasoned analysis, this argument was also expressly rejected in Sweet and Forrester.

As the Sweet court stated, “Statutes enacting punishment for a defendant convicted of violating section 23152 with prior convictions do not have the effect of being ex post facto laws. [Citation.] It is the law in effect at the time of commission of the offense which controls. [Citations.]” (Sweet, supra, 207 Cal.App.3d at pp. 82–83.) In 2006, when Hoek committed the current DUI offense, the law provided that an individual with a prior section 23152 conviction within the last 10 years would be subject to enhanced punishment if convicted of another violation of section 23152. (§ 23540.) As the Sweet court further noted, the offense for which Hoek was being punished is not the earlier conviction, but the subsequent offense. “The sentence imposed upon a habitual offender is not an additional punishment for the earlier crime, but ‘a stiffened penalty for the latest crime,’ which is aggravated because of its repetitive nature.” (Sweet, supra, at p. 83; accord, Forrester, supra, 156 Cal.App.4th at p. 1024.)

D. Equal Protection Challenge

Hoek also appears to argue that because the State of Minnesota offered to reinstate her Minnesota driving privilege within months of her Minnesota conviction, the DMV’s two-year suspension of her California driving privilege violated her right to equal protection, as guaranteed under the Constitutions of the United States and of the State of California. But Hoek’s argument in this regard is presented in a conclusory manner without reasoned analysis or citation to applicable authority. We therefore deem the equal protection issue as having been waived. (See, e.g., Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) The finding of such waiver is particularly appropriate in light of the well established principle that courts not decide constitutional questions where other grounds are available and dispositive of the issue. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231.)


The judgment is affirmed. The DMV is entitled to recover its costs on appeal.


_______________________, Acting P. J.


We concur:

_______________________, J.


_______________________, J.


1 All statutory references shall be to the Vehicle Code, unless otherwise noted.

2 At the time of Hoek’s conviction, sections 23540, subdivision (a) and 13352, subdivision (a)(3) required the DMV to suspend a person’s driving privilege for two years when convicted of a second violation of section 23152 within seven years of a separate violation of section 23152. Effective September 20, 2005, the time frame for a second violation was extended to ten years. (§ 23540, subd. (c).)

3 Neither party has addressed the issue of whether this appeal has become moot in light of the fact that as of March 16, 2008, Hoek became eligible to seek reinstatement of her California driving privilege, and, indeed, may have obtained reinstatement by the time this opinion is issued. But because a license suspension on her DMV record could have negative consequences for Hoek’s future driving privileges, we will address the merits of this appeal.

4 The DMV claims Hoek erred in seeking administrative (Code Civ. Proc., § 1094.5) rather than ordinary (Code Civ. Proc., § 1085) mandamus. We need not address the distinctions between those sections or resolve the issue given the DMV’s concession that Hoek justifiably could seek ordinary mandamus and there is no suggestion that the trial court applied the wrong standard of review. (See Moomjian v. Zolin (1993) 12 Cal.App.4th 1606, 1611, fn. 6.)

5 Accordingly, we invited the parties to submit briefing on this issue, which they have done.