Wednesday, October 21, 2009

Commercial Driver .04% BAC limit upheld for California DMV purposes

California DMV may order suspension imposed on a person for driving a vehicle that requires a commercial driver's license with a blood alcohol content of .04% BAC or more where there is proof by a preponderance of the evidence that such a driver's BAC was .04% or more.

Filed 10/20/09
(San Joaquin)
Plaintiff and Appellant,
Defendant and Respondent.
(Super. Ct. No.
APPEAL from a judgment of the Superior Court of San Joaquin
County, Elizabeth Humphreys, Judge. Affirmed.
Walter S. Nomura for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M. B.
Fowler, Senior Assistant Attorney General, David J. Neill,
Supervising Deputy Attorney General, Julie L. Harlan, Deputy
Attorney General, for Defendant and Respondent.
Plaintiff Atiqur Rehman filed a petition for a writ of
mandate seeking an order directing defendant Department of Motor
Vehicles (the department) to rescind its suspension of his
driver’s license because, with a blood alcohol content of 0.04
percent or more, he drove a vehicle that requires a commercial
driver’s license. (Veh. Code,1 § 13353.2, subd. (a)(3).) The
trial court denied the petition.
On appeal, Rehman contends that while the department can
immediately suspend the driver’s license of a person who, with a
blood alcohol content of 0.04 percent or more, drives a vehicle
that requires a commercial driver’s license, the department
cannot sustain an order of suspension following an
administrative hearing unless the person had a blood alcohol
content of 0.08 percent or more. (§ 13557, subd. (b)(2)(C)(i).)
We agree with the trial court that this is one of the rare
instances in which we must disregard the literal terms of a
statute because they conflict with another statute and would
compel an absurd result that the Legislature obviously did not
intend. Accordingly, we conclude that a blood alcohol content
of 0.04 percent or more was sufficient both to suspend Rehman’s
license and to sustain the order of suspension following the
administrative hearing. We shall therefore affirm.
A California Highway Patrol Officer operating the scales at
an Interstate 5 truck stop north of Santa Nella on June 7, 2008,
arrested Rehman for operating his tractor-trailer under the
influence of alcohol. (§ 23152, subd. (a).) Two breath tests
administered to Rehman about an hour after he was first stopped
showed a blood alcohol content of 0.04 and 0.05 percent,
1 All further section references are to the Vehicle Code.
respectively. Under subdivision (a)(3) of section 13353.2,
Rehman’s driving privilege was subject to immediate suspension.2
The officer confiscated Rehman’s license and gave him the
required notice of the order of suspension (see § 13353.2,
subd. (b)) and a temporary 30-day license.3
Rehman requested an administrative hearing. (See § 13558.)
Under subdivision (c)(2) of section 13558, “The only issues at
the hearing on an order of suspension pursuant to Section
13353.2 shall be those facts listed in paragraph (2) of
subdivision (b) of Section 13557.” That paragraph provides in
relevant part as follows:
“(2) If the department determines . . . by the
preponderance of the evidence, all of the following facts, the
department shall sustain the order of suspension . . . :
“(A) That the peace officer had reasonable cause to believe
that the person had been driving a motor vehicle in violation of
Section 23136, 23140, 23152, or 23153.
“(B) That the person was placed under arrest or, if the
2 “The department shall immediately suspend the privilege of
a person to operate a motor vehicle for any one of the following
reasons: [¶] . . . [¶] (3) The person was driving a vehicle
that requires a commercial driver’s license when the person had
0.04 percent or more, by weight, of alcohol in his or her
blood.” (§ 13353.2, subd. (a)(3).)
3 Under subdivision (a) of section 13353.3, “An order of
suspension of a person’s privilege to operate a motor vehicle
pursuant to Section 13353.2 shall become effective 30 days after
the person is served with the notice pursuant to . . .
subdivision (b) of Section 13353.2.”
alleged violation was of Section 23136, that the person was
lawfully detained.
“(C) That the person was driving a motor vehicle under any
of the following circumstances:
“(i) When the person had 0.08 percent or more, by weight,
of alcohol in his or her blood.
“(ii) When the person was under the age of 21 years and had
0.05 percent or more, by weight, of alcohol in his or her blood.
“(iii) When the person was under 21 years of age and had a
blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test, or other
chemical test.
“If the department determines that any of those facts were
not proven by the preponderance of the evidence, the department
shall rescind the order of suspension or revocation and,
provided that the person is otherwise eligible, return or
reissue the person’s driver’s license pursuant to Section
At the hearing, Rehman relied on subdivision (b)(2)(C)(i)
of section 13557 (set out above) to argue that because his blood
alcohol content was not 0.08 percent or more, the department had
to rescind the order of suspension. The hearing officer
rejected that argument and sustained the order of suspension.
The hearing officer determined that a blood alcohol content of
0.04 percent or more was the proper standard for sustaining the
order of suspension because subdivision (d) of section 23152
makes it “unlawful for any person who has 0.04 percent or more,
by weight, of alcohol in his or her blood to drive a commercial
motor vehicle.”
Rehman offered the same argument to the trial court in
support of his writ petition. The trial court found no
ambiguity in the statutory directive in section 13557 requiring
a blood alcohol content of 0.08 percent or more to sustain a
suspension of a license under section 13353.2. The court
concluded, however, that this directive could not be harmonized
with section 13353.2’s requirement of a suspension based on a
blood alcohol content of only 0.04 percent or more. In light of
the express legislative intent of conforming state law to a
federal requirement imposing a standard of 0.04 percent on
drivers of commercial vehicles (noncompliance with which could
lead to the loss of federal funds), the trial court concluded
“it was a drafter’s oversight when Vehicle Code, section 13557
[subdivision] (b)(2)(C) was not amended to include a
circumstance to cover commercial drivers with a .04%, or more,
[blood alcohol content].” Accordingly, the court denied
Rehman’s petition.
Rehman filed a timely notice of appeal.
Because the facts are undisputed, the question before us
regarding the interpretation of these apparently conflicting
statutes is one of law that we review de novo. (Nationwide
Asset Services, Inc. v. DuFauchard (2008) 164 Cal.App.4th 1121,
On its face, section 13557 requires evidence of a blood
alcohol content of 0.08 percent or more to sustain the
suspension of a driver’s license under section 13353.2, when
section 13353.2 requires a blood alcohol content of only 0.04
percent or more to suspend the license in the first place.
Rehman contends that, contrary to the trial court’s conclusion,
the two statutes can be harmonized. He suggests that, with
respect to commercial licenses, the Legislature might have
intended the lower 0.04 percent standard to apply only to the
immediate suspension in effect between arrest and the outcome of
the administrative hearing, but intended the higher 0.08 percent
standard to apply to the continuation of the suspension after
the administrative hearing “since the driver’s livelihood is
directly affected” by the suspension. He further argues that
“the continued suspension of a commercial driver’s license is
adequately handled by other Vehicle Code provisions.”
Specifically, he asserts that subdivision (a) of section 15300
provides for a one-year suspension of a commercial driver’s
license upon conviction of driving a commercial motor vehicle
with a blood alcohol content of 0.04 percent or more.4 (See §§
15300, subd. (a)(2), 23152, subd. (d).)
4 Rehman also refers to subdivision (a) of section 15315,
which provides that “[t]he department shall not issue a
commercial driver’s license to a person during a period in which
the person is prohibited from operating a commercial motor
vehicle, or the person’s driving privilege is suspended,
revoked, or canceled.” He contends that under this provision,
if the suspension of his driving privilege was continued under
section 13557, “then his commercial driver’s license would also
In interpreting statutes, if the “language is clear and
unambiguous there is no need for construction, nor is it
necessary to resort to indicia of the intent of the
Legislature . . . .” (Lungren v. Deukmejian (1988)
45 Cal.3d 727, 735.) However, this “‘plain meaning’ rule does
not prohibit a court from determining whether the literal
meaning of a statute comports with its purpose or whether such a
construction of one provision is consistent with other
provisions of the statute.” (Ibid.) We must strive to
harmonize “provisions relating to the same subject matter . . .
to the extent possible.” (Ibid.) Therefore, “[t]he intent
prevails over the letter, and the letter will, if possible, be
so read as to conform to the spirit of the act.” (Ibid.)
The shortcoming in Rehman’s proffered harmonization of
sections 13353.2 and 13557 is the lack of any true “immediate”
suspension that takes effect upon arrest. While section 13353.2
does refer to “immediately suspend[ing]” the license, in
operation the suspension is anything but immediate. This is so
because the effective date of the suspension is either 30 days
after the arresting officer or the department gives notice of
the suspension (§ 13353, subd. (a)), or five days after the
department gives written notice of its determination to sustain
the suspension following the administrative hearing (§ 13558,
be suspended.” But section 15315 addresses only the issuance of
a commercial driver’s license, not the continued suspension of a
commercial driver’s license already issued, and thus that
statute has no relevance here.
subd. (d)). Until the effective date, the license holder
continues to enjoy the privilege of driving by virtue of a
temporary license. (See id., subd. (e).) Therefore, contrary
to Rehman’s proposal, the Legislature reasonably could not have
contemplated using different levels of blood alcohol content for
different parts of the suspension.
We are therefore left with conflicting provisions that
apply a higher blood alcohol content standard in the review of
an order of suspension issued based on a lower blood alcohol
content standard, which would lead to the absurd result of
issuing orders of suspension that could never be effective and
thus render section 13353.2, subdivision (a)(3) nugatory in some
cases. “The literal meaning of the words of a statute may be
disregarded to avoid absurd results or to give effect to
manifest purposes that, in light of the statute’s legislative
history, appear from its provisions considered as a whole.”
(Silver v. Brown (1966) 63 Cal.2d 841, 845.) Such a result is
appropriate here, particularly when we look to the legislative
purposes of these statutes.
In the history available for Assembly Bill No. 2520,
enacted in the 2005-2006 regular session (which the department
included in its opposition below), the Legislative Counsel’s
Digest does not explain the purpose in changing the standard for
suspending a commercial license to 0.04 percent. (Legis.
Counsel’s Dig., Stats. 2006, ch. 574.) However, according to
the Assembly Transportation Committee’s August 16, 2006, floor
analysis of the Senate’s amendments to the bill, the purpose of
the bill was to make “numerous changes to the Vehicle Code in
order to conform state law to federal regulations mandated by
the Federal Motor Carrier Safety Administration in the Motor
Carrier Safety Improvement Act of 1999. The following items are
conforming changes: [¶] a) Requires [the department] to
immediately suspend the commercial driver’s license of a driver
when he or she has . . . [0].04 percent or more . . . of alcohol
in his or her blood.” (Assem. Com. on Transportation, Rep. on
Assem. Bill No. 2520 (2005-2006 Reg. Sess.) as amended Aug. 16,
2006, pp. 1-2.)5 This intentional incorporation of federal
standards is also expressly recognized in the criminal statute
directed at impaired commercial drivers (§ 23152, subd. (d)),
which keeps the 0.04 percent standard in effect as long as it is
a requirement of federal law (id., subd. (e)).
The failure to amend section 13557 to reflect the addition
of the 0.04 percent standard to section 13353.2 may have had its
genesis in the department’s September 2005 legislative proposal
suggesting the necessary changes for compliance with federal
law. Among the “minor amendments” the department identified was
5 Federal law proscribes the operation of a commercial motor
vehicle with more than 0.04 percent of blood alcohol (49 U.S.C.
§ 31310(a)) and includes provisions to induce state law
compliance: “To avoid having amounts withheld from
apportionment under section 31314 of this title, a State shall
comply with the following requirements: [¶] . . . [¶] (3) The
State shall have in effect and enforce a law providing that an
individual with a blood alcohol . . . level at or above [0.04
percent] . . . when operating a commercial motor vehicle is
deemed to be driving under the influence of alcohol.” (Id.,
§ 31311(a).)
the need for a provision in section 13353.2 that “a driver of a
vehicle that requires a commercial driver license shall receive
an administrative action when a [0].04 blood alcohol content
level or greater is found.” (Italics added.) The department’s
proposal did not make any mention of the need to incorporate
this new standard for commercial drivers among the specified
findings in the procedural provisions of section 13557 as well.
Considering the administrative suspension process is
intended to provide the public with added protection because the
criminal process takes too long to resolve guilt (see Lake v.
Reed (1997) 16 Cal.4th 448, 454-455), it is inconceivable the
Legislature would enact a statute allowing the criminal
conviction of a commercial driver with proof of a blood alcohol
content of only 0.04 percent or more (§ 23152, subd. (d)), and
the suspension of a commercial license upon a determination of
this fact (§ 13352, subd. (a)), but not intend for an
administrative suspension to go into effect absent proof of the
higher blood alcohol content that is generally applicable to
ordinary drivers. To avoid this absurd result and give effect
to the manifest purpose of the statutes, we construe subdivision
(b)(2)(C)(i) of section 13557 as including a provision that
allows the department to sustain an order of suspension imposed
under subdivision (a)(3) of section 13353.2 on a person for
driving a vehicle that requires a commercial driver’s license
with a blood alcohol content of 0.04 percent or more where there
is proof by a preponderance of the evidence that the person’s
blood alcohol content was 0.04 percent or more.6
The judgment is affirmed.
We concur:
6 This is not the first time that the Legislature has failed
to keep in line the criteria for immediate suspension and the
findings to sustain the suspension. Correcting an earlier
disparity created the previous year (see Stats. 1993, ch. 899,
§§ 1, 5, 9, pp. 5021, 5023, 5028; Stats. 1993, ch. 1244,
§§ 12.1, 15.5, 27, 28, pp. 7204, 7211, 7224), the Legislature
amended section 13353.2 in 1994 to allow the suspension of the
license of a minor for driving with an alcohol level over 0.01
percent “as measured by a preliminary alcohol screening test, or
other chemical test” or for having “0.05 percent . . . of
alcohol in his or her blood”; section 13357 contained the same
factors to sustain the suspension. (Stats. 1994, ch. 938, §§ 3,
9, pp. 5514, 5519.) In 1999, the Legislature deleted the
provision in section 13353.2 regarding a minor with an alcohol
level of 0.05 percent (Stats. 1999, ch. 22, § 14); however, it
neglected to remove this factor from the list in section 13557,
where the redundancy persists to this day (§ 13557, subd.
(b)(2)(C)(ii)). The Legislature may wish to address this
vestigial provision as well as the conflicting provisions
addressed in this opinion.