Opinion
G044904
12-22-2011
GREGORY LEE ROACH, Plaintiff and Respondent, v. GEORGE VALVERDE, as Director, etc., Defendant and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, Jerald L. Mosley and Kenneth C. Jones, Deputy Attorneys General, for Defendant and Appellant. Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2010-00394305)
OPINION
Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Dismissed as moot.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, Jerald L. Mosley and Kenneth C. Jones, Deputy Attorneys General, for Defendant and Appellant.
Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Respondent.
George Valverde, as Director, etc., of the Department of Motor Vehicles (the DMV), appeals from the trial court's order granting Gregory Lee Roach's petition for peremptory writ of mandamus requiring the DMV to grant Roach's application for a restricted license. The issue in this case is whether because of a July 1, 2010, amendment to the Vehicle Code, Roach had to wait one year to apply for a restricted license, as the Attorney General contends, or whether he had to wait 90 days, as Roach asserts. As we explain below in greater detail, we dismiss the appeal as moot because in either case, the time to apply for a restricted license has passed.
FACTS
On November 30, 2002, Roach was arrested for driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (b)), and he was convicted of that offense on September 9, 2003. On December 24, 2009, Roach was arrested for among other things DUI (§ 23152, subd. (b)). On February 27, 2010, the DMV suspended Roach's driver's license for one year.
All further statutory references are to the Vehicle Code.
Roach was convicted of the December 24, 2009, offense on July 1, 2010. In an order dated July 9, 2010, the DMV suspended Roach's driver's license for two years beginning on July 1, 2010, because Roach received his second violation within 10 years of his first violation. The suspension order stated that on February 27, 2011, Roach could apply for a restricted license that would allow him to drive with an ignition interlock device (IID). On July 9, 2010, Roach installed an IID device on his vehicle. Three days later, Roach went to the DMV and applied for a restricted license as permitted by section 13352, subdivision (a)(3). The DMV denied his application.
Roach filed a petition for peremptory writ of mandamus requiring the DMV to grant his application for a restricted driver's license and an opening brief. The Attorney General opposed the petition, Roach replied, and the Attorney General answered. Roach and the DMV submitted supplemental motions on the applicable legislative intent.
After reviewing the written submissions and hearing argument, the trial court granted the petition. The court explained the matter was an ordinary mandate and because it involved the interpretation of section 13352, subdivision (a)(3), a statute (and not a DMV regulation), the court would exercise its independent review. The court stated the issue was whether the recent amendment to section 13352, subdivision (a)(3), applied to cases where the violation occurred before the amendment's effective date, but the conviction occurred on or after the amendment's effective date. Based on the amendment's legislative history and function, the court ruled application of the recent amendment to section 13352, subdivision (a)(3), would not result in a retroactive application of the law. The court added, however, that even if application of the recent amendment resulted in retroactive application of the law, the amendment's legislative history compels the conclusion the Legislature intended the amendment to apply regardless of whether the violation occurred before or after the amendment's effective date. The Attorney General appealed.
The record on appeal does not include a reporter's transcript.
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DISCUSSION
In their appellate briefs, the parties correctly spend much time discussing whether the July 1, 2010, amendment to section 13352, subdivision (a)(3), shortening the period of time from one year to 90 days before a person applies for a restricted license, should be applied to Roach. At oral argument, however, we inquired whether the issue is moot because both time periods have passed, and counsel for both parties thoroughly addressed our inquiries. We turn now to the relevant statutory language.
If a person suffers two convictions for violating section 23152 within 10 years, the DMV may suspend the person's driver's license pursuant to section 13352, subdivision (a)(3). Section 13352, subdivision (a)(3), requires the suspension last for two years but allows the person to apply for a restricted driver's license after a specific time. At the time of Roach's second violation, section 13352, subdivision (a)(3), required a person to wait 12 months before applying for a restricted license. But effective the date of his second conviction, section 13352, subdivision (a)(3), requires the person to wait 90 days before applying for a restricted license.
At the time of Roach's second DUI violation, section 13352, subdivision (a)(3), provided: "Except as provided in [s]ection 13352.5, upon a conviction or finding of a violation of [s]ection 23152 punishable under [s]ection 23540, the privilege shall be suspended for two years. The privilege may not be reinstated until the person gives proof of financial responsibility and gives proof satisfactory to the department of successful completion of a driving-under-the-influence program . . . . The department shall advise the person that after completion of 12 months of the suspension period, which may include credit for a suspension period served under subdivision (c) of [s]ection 13353.3, the person may apply to the department for a restricted driver's license . . . ." (Italics added.) The remainder of section 13352, subdivision (a)(3), lists those conditions with which the person must comply.
The version of section 13352, subdivision (a)(3), enacted in October 2009 and effective July 1, 2010, the day of Roach's second DUI conviction provided: "Except as provided in [s]ection 13352.5, upon a conviction or finding of a violation of [s]ection 23152 punishable under [s]ection 23540, and if the person was found to be only under the influence of an alcoholic beverage at the time of the violation of [s]ection 23152, the privilege shall be suspended for two years. The privilege may not be reinstated until the person gives proof of financial responsibility and gives proof satisfactory to the department of successful completion of a driving-under-the-influence program . . . . The department shall advise a person convicted or found to be in violation of subdivision (a) or (b) of [s]ection 23152 that after completion of 90 days of the suspension period, which may include credit for a suspension period served under subdivision (c) of [s]ection 13353.3, the person may apply to the department for a restricted driver's license." (Italics added.) Again, the remainder of section 13352, subdivision (a)(3), lists those conditions with which the person must comply.
Roach suffered his second DUI violation on December 24, 2009. On February 27, 2010, the DMV suspended Roach's driver's license for one year. On July 1, 2010, Roach was convicted of his second DUI offense. In an order dated July 9, 2010, the DMV suspended Roach's driver's license for two years beginning on July 1, 2010, because Roach received his second violation within 10 years of his first violation. The order of suspension stated that on February 27, 2011, Roach could apply for a restricted license that would allow him to drive with an IID. On July 9, 2010, Roach installed an IID device on his vehicle. Three days later, Roach went to the DMV and applied for a restricted license as permitted by section 13352, subdivision (a)(3).
The DMV first suspended Roach's driver's license on February 27, 2010. The July 2010 DMV order extending the suspension two years stated that on February 27, 2011, one year after his suspension began, Roach could apply for a restricted license. Instead of waiting one year, Roach installed the IID and applied for a restricted license approximately 130 days later pursuant to the then very recent amendment to section 13352, subdivision (a)(3), which shortened the waiting period from one year to 90 days.
Regardless of whether Roach had to wait 90 days or one year before applying for a restricted license, the time period under both scenarios has passed. Assuming Roach had to wait one year, the date on which he could apply for a restricted license was February 27, 2011. Roach installed an IID on his vehicle, and it is our understanding the DMV issued Roach a restricted license. As both time periods have passed, the issue before us is moot.
"A case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' [Citation.] 'When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) However "'[i]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.' [Citations.]" (Id. at pp. 214-215.)
Counsel for both parties argue that the issue before us is not moot because (1) if we were to reverse the trial court, the DMV could revoke Roach's restricted license and reimpose the suspension for the balance of the period, nine months; and (2) the issue is one of public importance because there may be driver's similarly situated to Roach, and there is a nearly identical statutory provision governing third time offenders (§§ 13352, subd. (a)(5), 23546), although the analogous waiting period to apply for a restricted license is six months for third time offenders.
As to the first claim, a suspension or revocation of a driver's license under section 13352 is to protect "the public from drivers whose prior conduct demonstrates they cannot currently be trusted with a license to drive." (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380-381.) As the Attorney General conceded at oral argument, if the purpose of the suspension is to protect the public, and Roach's vehicle is equipped with an IID and is operating his vehicle pursuant to a valid restricted license, the purpose of section 13352, subdivision (a)(3), has been fulfilled. There simply is no valid and legitimate public safety interest in punishing Roach by reimposing a nine-month suspension when he has otherwise complied with section 13352, subdivision (a)(3)'s conditions. To do so would only serve as punishment, and the Attorney General concedes that is not the purpose of the license suspension.
With respect to the second claim, we cannot conclude the issue is of such broad public interest that we should address the issue. First, although it is possible there is another person who has suffered a second DUI violation before July 1, 2010, and was convicted on or after that date and the one-year waiting period has not run, we cannot conclude the class of people is so large rendering it an issue of public importance. (See Feder v. Lahanier (1962) 200 Cal.App.2d 483, 485-486 [appeal dismissed as moot where "likelihood that petitioner will again be presented with the same situation is not great"].) Additionally, in this case, Roach was a second time offender, not a third time offender, and we are not faced with interpreting the statutory provision governing third time offenders. Thus, we decline counsels' request to exercise our inherent discretion to resolve this issue despite the matter being moot.
DISPOSITION
The appeal is dismissed as moot. In the interests of justice, each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
O'LEARY, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.