The appellate court upheld the trial court's ruling that DMV was collaterally estopped from relitigating the arrest issue. Appellant urges us to reject Shackelton and Buttimer, two cases directly on point, in favor of Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730 [ 177 Cal.Rptr. 601] and Pawlowski v. Pierce (1988) 202 Cal.App.3d 692 [ 249 Cal.Rptr. 49]. In Lofthouse, the doctrine of collateral estoppel was found to be inapplicable because the validity of the arrest was not decided in the prior criminal proceedings.
(3c) Numerous cases involving a refusal to take a chemical test under section 13353 have examined whether the DMV and criminal prosecutors are in privity with each other, and have reached conflicting conclusions. ( Zapata v. Department of Motor Vehicles, supra, 2 Cal.App.4th 108 [privity]; Pawlowski v. Pierce (1988) 202 Cal.App.3d 692 [ 249 Cal.Rptr. 49] [no privity]; Buttimer v. Alexis (1983) 146 Cal.App.3d 754, 760 [ 194 Cal.Rptr. 603] [privity]; Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730, 736-738 [ 177 Cal.Rptr. 601] [no privity]; Shackelton v. Department of Motor Vehicles (1975) 46 Cal.App.3d 327, 331 [ 119 Cal.Rptr. 921] [privity].) Appellant cites the cases finding privity.
We also note that the driver's license suspension statute differs from the statute imposing the 48-hour refusal enhancement in that the former does not require willful refusal. ( Pawlowski v. Pierce (1988) 202 Cal.App.3d 692, 698-699 [ 249 Cal.Rptr. 49].) One indication of the punitive nature of a sanction is that "it comes into play only on a finding of scienter."
( Southwell v. Mallery, Stern Warford (1987) 194 Cal.App.3d 140, 144 [ 239 Cal.Rptr. 371] .) The court in Pawlowski v. Pierce (1988) 202 Cal.App.3d 692 [ 249 Cal.Rptr. 49] held that there was no issue identity between a criminal proceeding and an administrative proceeding for a driver's license revocation. The Pawlowski court reasoned that the issue in the criminal action was the willful failure to submit to a chemical test.
We thus concluded that the State of California was the real party in interest in both proceedings and that therefore the requirements of privity for the application of collateral estoppel were satisfied. (Accord Shackelton v. Department of Motor Vehicles (1975) 46 Cal.App.3d 327 [ 119 Cal.Rptr. 921]; contra Pawlowski v. Pierce (1988) 202 Cal.App.3d 692 [ 249 Cal.Rptr. 49]; see also Carmel Valley Fire Protection Dist. v. State of California (1987) 190 Cal.App.3d 521, 534-537 [ 234 Cal.Rptr. 795] [State Board of Control's determination that county was entitled to reimbursement from state for certain expenditures on ground they were state mandated was binding on defendants state, State Department of Finance, State Department of Industrial Relations, State Board of Control, State Controller, State Treasurer and Los Angeles County Auditor Controller in an action by other counties for reimbursement: "Each of these defendants is an agent of the State of California[,] had a mutual interest in the Board proceedings [and] . . . are thus in privity with those state agencies which did participate below. . . ." ( Id., at p. 536.)
WOODWORTH, J.[fn*] [fn*] Assigned by the Chairperson of the Judicial Council. I concur in the majority opinion only out of deference to other decisions in Pawlowski v. Pierce (1988) 202 Cal.App.3d 692 [ 249 Cal.Rptr. 49] and Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730 [ 177 Cal.Rptr. 601]. Those cases convincingly establish that there is no privity between the Department of Motor Vehicles and the district attorney as required for collateral estoppel to apply.
The exceptional circumstances supporting a finding of privity in Sims are thus absent here. (See People v. Demery (1980) 104 Cal.App.3d 548, 560-561 [administrative finding that physician did not violate Health and Safety Code in action by the State Board of Medical Quality Assurance did not collaterally estop the District Attorney from prosecuting physician at criminal trial for the same violation], overruled in part on other grounds in People v. Sims, supra, 32 Cal.3d at p. 483, fn. 13; Pawlowski v. Pierce (1988) 202 Cal.App.3d 692, 698 [distinguishing Sims and finding no privity between the Department of Motor Vehicles and the District Attorney].) DISPOSITION
People v. Demery (1980) 104 Cal.App.3d 548, 560-561, overruled in part on other grounds in People v. Sims, supra, 32 Cal.3d at p. 483, fn. 13 [finding at administrative hearing on physician's medical license by State Board of Medical Quality Assurance that physician did not violate Health and Safety Code section 11154 did not collaterally estop district attorney from prosecuting physician at criminal trial for the same violation, noting in part: "The function of the administrative proceeding was merely to police licensing requirements rather than make determinations of guilt or innocence of criminal charges."]; State v. Fritz (Conn. 1987) 527 A.2d 1157, 1166 [similar], overruled on another ground in State v. Crawford (Conn. 2001) 778 A.2d 947, 954, fn.6.; Pawlowski v. Pierce (1988) 202 Cal.App.3d 692, 698 [distinguishing Sims and finding no privity between DMV and district attorney where DMV suspended plaintiff's driver's license for failing to take a chemical test]; Bianchi v. City of San Diego (1989) 214 Cal.App.3d 563, 571 [no privity between city and city's retirement board regarding disability finding]; Geoghegan v. Retirement Board (1990) 222 Cal.App.3d 1525, 1533-1534 [same]; City of Gilroy v. State Bd. of Equalization (1989) 212 Cal.App.3d 589, 606-607 [no privity between city and State Board of Equalization regarding finding on sale of lottery tickets]; People v. Dawkins (1987) 195 Cal.App.3d Supp. 1, 4, 7 [no privity between BART and district attorney regarding prior arbitration finding that defendant/employee did not steal money from ticket machine]; People v. Meredith (1992) 11 Cal.App.4th 1548, 1559-1560 [no privity between state and federal prosecutors where state prosecu