This is an interesting case where the Appellant Court in San Diego
overturned an Admin Per Se one year suspension of a California resident
who got a prior DUI in Colorado. This ruling was based on the fact that
Colorado DUI laws are at a .05 and California’s is .08.
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STEVEN T. MCDONALD,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
D032919
(Super. Ct. No. 716690)
APPEAL from a judgment of the Superior Court of San Diego
County, Wayne Peterson, Judge. Reversed and remanded with
directions.
The Department of Motor Vehicles (DMV) appeals a judgment
granting Steven McDonald’s petition for writ of administrative
mandamus and reducing his driver’s license suspension from one
year to four months. The court determined that the Colorado law
under which McDonald pleaded guilty for driving while ability
impaired (DWAI) was not “substantially similar” to California
2
Vehicle Code 1 section 23152, subdivisions (a) and (b), and
therefore that the DMV could not consider McDonald’s Colorado
offense a prior offense for penalty enhancement purposes. DMV
contends the court acted contrary to legislative intent in
narrowly construing the section 13363, subdivision (b)
substantial similarity test used to determine whether an
out-of-state
conviction will be used to increase the term of license
suspension. We agree and reverse with directions to the trial
court to reinstate the DMV’s suspension order.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of determining the propriety of the judgment
granting McDonald’s petition for writ of mandate, we state the
facts in the light most favorable to McDonald. (Lake v. Reed
(1997) 16 Cal.4th 448, 457.)
On July 24, 1992, McDonald, a resident of Rancho Santa Fe,
California, was arrested in Colorado for speeding (Colo. Rev.
Stat. (C.R.S.), § 42-4-1001), driving a vehicle with
excessive
alcohol content (C.R.S., § 42-4-1202 (1.5)(a)), and
driving a
vehicle under the influence of alcohol or drugs or both (C.R.S.,
§ 42-4-1202 (1)(a)). McDonald pleaded guilty to a charge
of
driving while ability impaired (C.R.S., former §
42-4-1202
1 All statutory references are to the California Vehicle Code
in effect before July 1, 1999, unless otherwise specified.
3
(1)(b)2 ). He signed a plea bargain advisement in Colorado
waiving the establishment of any factual basis for the charge.
The record contains no evidence of McDonald’s actual blood
alcohol level at the time of his Colorado arrest.
Approximately five years later, in August 1997, McDonald
was arrested in Carlsbad, California for driving under the
influence of alcohol in violation of section 23152, subdivision
(a). His California driver’s license was suspended under
California’s administrative per se statute, section 13353.2,
subdivision (a).3 On October 16, 1997, the DMV held a formal
hearing on McDonald’s suspension at which time his counsel
advised the hearing officer that McDonald had pleaded guilty to
a section 23152, subdivision (a) violation. McDonald’s counsel
argued that McDonald’s prior Colorado conviction should not be
recognized for penalty enhancement purposes under section 13363
and that McDonald’s section 23152, subdivision (a) offense
should be considered his first offense. The hearing officer
2 In 1994, Colorado’s General Assembly relocated C.R.S.
section 42-4-1202(1)(b) to section 42-4-1301(1)(b). (1994 Colo.
Legis. Serv. S.B. 94-1 (WEST).) We refer to the law as it was
codified at the time of McDonald’s Colorado arrest and plea.
3 McDonald’s verified Petition for Writ of Mandate states
that the Administrative Per Se Order of Suspension was served on
August 9, 1997.
4
took McDonald’s contention into consideration, but did not rule
on it at the hearing.4
On December 4, 1997, the DMV issued its Notice of Findings
and Decision sustaining the suspension of McDonald’s license for
one year. McDonald filed a petition for writ of administrative
mandamus in the superior court challenging the validity of the
DMV’s suspension order on the ground there was no proof that
McDonald’s prior conviction was “valid and proper.” The DMV
argued that the Colorado DWAI statute was substantially similar
to section 23152 and counted as a prior conviction under section
13352, subdivision (d). The DMV further maintained that
McDonald in his plea bargain waived his right to claim that no
adjudicated facts supported the conviction.
The court found that the DMV abused its discretion by
failing to make the “substantially similar” determination
required under section 13363, subdivision (b) and ruled that the
Colorado statute was not substantially similar to section 23152:
“Colorado Revised Statute 42-4-1202 indicates petitioner might
have been convicted of DWAI in Colorado if (1) he drove a car
4 The DMV hearing officer also received into evidence the
Officer’s Statement (Form DS 367) signed and dated August 9,
1997 and reflecting chemical test results of .16 and .17; the
Order of Suspension; the CHP Report; the results of McDonald’s
breath test and the Intoxilyzer 3000 Checklist; McDonald’s
driving record dated October 14, 1996; the Notice of Stay and
Notice of Hearing; and a discovery list. None of these items
are contained in the appellate record or the superior court
file.
5
with a blood alcohol content (‘BAC’) of more than 0.05 percent
but less than 0.10 percent; or (2) there was a factual finding
his driving was affected ‘to the slightest degree’ by
consumption of alcohol. 0.05 percent is not a punishable
offense under Vehicle Code [section] 23152[, subdivision] (b).
Moreover, [the] Vehicle Code requires something more than an
effect of the ‘slightest degree.’ CALJIC 16.831. Moreover,
DWAI is a lesser offense in Colorado tha[n] DUI (42-4-
1202(f),(g).).” It entered judgment granting McDonald’s
petition for writ of mandate on February 3, 1999.
DISCUSSION
The DMV contends that Colorado’s DWAI statute is
substantially similar in substance, interpretation and
enforcement to section 23152 and therefore McDonald’s prior
Colorado DWAI conviction should have been used as a prior
conviction to enhance McDonald’s suspension to one year under
California’s administrative license revocation scheme, which
permits enhancements for repeat offenders. (§ 13353.3,
subd.
(b)(2).5 ) McDonald counters that use of out-of-state
5 Section 13353.3, subdivision (b)(2) provides: “If the
person has been convicted of one or more separate violations of
Section 23103, as specified in Section 23140, 23152, or 23153,
of Section 191.5 of the Penal Code, or of paragraph (3) of
subdivision (c) of Section 192 of that code, the person has been
administratively determined to have refused chemical testing
pursuant to Section 13353 or 13353.1, or the person has been
administratively determined to have been driving with an
6
convictions as penalty enhancements is not permitted under the
administrative per se laws, but even if they were, McDonald’s
Colorado conviction would not qualify because it is not a
violation of either subdivision (a) or (b) of section 23152.
McDonald argues we should reject as incorrect dicta the
“substantially similar” test of Draeger v. Reed (1999) 69
Cal.App.4th 1511, but maintains in any event that the laws are
not substantially similar because a conviction under section
23152 requires a greater degree of impairment than one under
Colorado’s DWAI law.
Where, as here, the facts are undisputed, we independently
review the construction and application of the relevant statutes
(Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711; Campbell v.
Zolin (1995) 33 Cal.App.4th 489, 493), which are the interstate
Driver License Compact (§ 15000 et seq.), the
“administrative
per se” law (§ 13353.2 et seq.), section 23152 and
Colorado’s
DWAI law (C.R.S. § 42-4-1202(1)(b)). “The rules of
statutory
construction require us to ascertain the intent of the
Legislature so as to effectuate the purpose of the law.
[Citation.] The words must be construed in context, and
excessive concentration of alcohol pursuant to Section 13353.2
on a separate occasion, which offense or occasion occurred
within seven years of the occasion in question, the person’s
privilege to operate a motor vehicle shall be suspended for one
year.”
6
convictions as penalty enhancements is not permitted under the
administrative per se laws, but even if they were, McDonald’s
Colorado conviction would not qualify because it is not a
violation of either subdivision (a) or (b) of section 23152.
McDonald argues we should reject as incorrect dicta the
“substantially similar” test of Draeger v. Reed (1999) 69
Cal.App.4th 1511, but maintains in any event that the laws are
not substantially similar because a conviction under section
23152 requires a greater degree of impairment than one under
Colorado’s DWAI law.
Where, as here, the facts are undisputed, we independently
review the construction and application of the relevant statutes
(Murphy v. Padilla (1996) 42 Cal.App.4th 707, 711; Campbell v.
Zolin (1995) 33 Cal.App.4th 489, 493), which are the interstate
Driver License Compact (§ 15000 et seq.), the
“administrative
per se” law (§ 13353.2 et seq.), section 23152 and
Colorado’s
DWAI law (C.R.S. § 42-4-1202(1)(b)). “The rules of
statutory
construction require us to ascertain the intent of the
Legislature so as to effectuate the purpose of the law.
[Citation.] The words must be construed in context, and
excessive concentration of alcohol pursuant to Section 13353.2
on a separate occasion, which offense or occasion occurred
within seven years of the occasion in question, the person’s
privilege to operate a motor vehicle shall be suspended for one
year.”
8
to “[m]ake the reciprocal recognition of licenses to drive and
eligibility therefor more just and equitable by considering the
overall compliance with motor vehicle laws, ordinances and
administrative rules and regulations as a condition precedent to
the continuance or issuance of any license by reason of which
the licensee is authorized or permitted to operate a motor
vehicle in any of the party states.” (§ 15020, subd.
(b)(2).)
The Compact is to be liberally construed to effectuate its
purposes. (§ 15028.) The state of Colorado is a party to
the
Compact. (C.R.S. § 24-60-1101 (1997); Kramer v. Colorado
Dept.
of Revenue, Motor Vehicle Division (1998) 964 P.2d 629.)
Under the Compact, party states are required to report
convictions of persons from another party state to the home
state of the licensee. (§ 15022.) The DMV’s treatment
of
reported prior convictions is governed by section 15023, which
provides in part:
“(a) The licensing authority of the home state,
for the purposes of suspending, revoking, or
limiting the license to operate a motor vehicle,
shall give the same effect to the conduct
reported . . . as it would if such conduct had
occurred in the home state, in the case of a
conviction for:
. . .
(2) driving a motor vehicle while under the
influence of intoxicating liquor or a narcotic
drug, or under the influence of any other drug to
a degree which renders the driver incapable of
safely driving a motor vehicle;
. . .
9
(b) As to any other convictions . . . the
licensing authority in the home state shall give
such effect to the conduct as is provided by the
laws of the home state.
(c) If the laws of a party state do not provide
for offenses or violations denominated or
described in precisely the words employed in
subdivision (a) of this section, such party state
shall construe the denominations and descriptions
appearing in subdivision (a) hereof as being
applicable to and identifying those offenses or
violations of a substantially similar nature, and
the laws of such party state shall contain such
provisions as may be necessary to ensure that
full force and effect is given to this section.”
Accordingly, under subdivision (a) of section 15023, the
DMV must give the same force and effect in California to a prior
out-of-state conviction for “driving a motor vehicle while under
the influence of intoxicating liquor”6 as if the same conduct
6 Both the DMV and McDonald suggest that subdivision (a) of
section 15023 should be interpreted as describing a conviction
for “[d]riving a motor vehicle while under the influence of
intoxicating liquor” qualified by the phrase “. . . to a degree
which renders the driver incapable of safely driving a motor
vehicle.” We do not interpret the provision in this manner
under the applicable rules of statutory construction.
Generally, a qualifying phrase applies to the word, phrase or
clause immediately preceding it unless context or evident
meaning require a different construction. (People v. Cruz
(1974) 12 Cal.3d 562, 566.) “A longstanding rule of statutory
construction-the ‘last antecedent rule’-provides that
‘qualifying words, phrases and clauses are to be applied to the
words or phrases immediately preceding and are not to be
construed as extending to or including others more remote.'”
(White v. County of Sacramento (1982) 31 Cal.3d 676, 680,
citations omitted.) “There are two exceptions to the ‘last
antecedent rule’ . . . . The first exception provides that
‘”[w]hen several words are followed by a clause which is 10
had occurred in California. Subdivision (c) of section 15023
provides a more relaxed standard; party states may construe
other offenses or violations as falling under subdivision (a) so
long as the offenses and violations are of a “substantially
similar nature” as driving while under the influence of an
intoxicating liquor. Under subdivision (b) of section 15023,
the DMV must give effect to the conduct involved in “other
convictions” as it would under California law.
Section 15023 cross-references section 13363, relating to
convictions in foreign jurisdictions. Section 13363,
subdivision (a) gives the DMV discretion, aside from the
mandatory obligations of the Compact, to suspend or revoke
driving privileges upon notice of a prior out-of-state
conviction “which, if committed in this State, would be grounds
for the suspension or revocation of the privilege to operate a
motor vehicle.” Subdivision (b) of section 13363 provides that
applicable as much to the first and other words as to the last,
the natural construction of the language demands that the clause
be read as applicable to all.”‘” (Id. at pp. 680-681, citations
omitted.) “Evidence that a qualifying phrase is supposed to
apply to all antecedents instead of only to the immediately
preceding one may be found in the fact that it is separated from
the antecedents by a comma.” (Id. at p. 680.) The placement of
the comma in the statute indicates that the latter clause “. . .
to a degree which renders the driver incapable of safely driving
a motor vehicle” applies to driving under the influence of drugs
other than narcotics. Moreover, such a reading would be
redundant under California’s definition of “under the
influence,” discussed below.
11
the DMV “shall not give effect to [a report of an out-of-state
conviction] pursuant to . . . Section 15023 unless the
department is satisfied that the law of such other place
pertaining to the conviction is substantially the same as the
law of the State pertaining to such conviction and that the
description of the violation from which the conviction arose, is
sufficient and that the interpretation and enforcement of such
law are substantially the same in such other place as they are
in this State.” (§ 13363, subd. (b).)
McDonald contends the Compact is irrelevant to these
circumstances because it has been “unchanged” since its
enactment and its general provisions should be governed by other
more specific but unidentified Vehicle Code sections addressing
penalty enhancements. He further argues that the legislature
did not intend out-of-state convictions to be used as suspension
enhancements in administrative per se cases, because the
administrative per se law (§ 13353 et seq.) does not
contain any
provision specifically referring to out-of-state convictions as
does section 13352, relating to a suspension following a
criminal conviction. (§ 13352, subdivision (d).) His
arguments
are without merit.
The Compact’s provisions expressly refer to, without
qualification, efforts by the licensing authority to suspend,
revoke or limit a license. (§ 15023, subd. (a).) It’s
12
provisions do not distinguish between the DMV’s actions taken
pursuant to either criminal or administrative proceedings.
Although section 13353.3 does not specifically refer to
out-of-state
convictions, we must harmonize its provisions with the
mandatory provisions of the Compact and read them consistently,
if possible. Giving the Compact its intended liberal
construction, we find the Compact applies when the DMV
contemplates any suspension of a driver’s license — including
under the administrative scheme of section 13353.2 et seq. In
order to apply the Compact and determine whether McDonald’s
Colorado conviction may be used as an suspension enhancement
under section 13353.3, we set out and then compare the Colorado
DWAI statute and section 23152 to determine whether they are
“substantially similar” within the meaning of the statute.
B. The Colorado Statutes
Colorado makes it a misdemeanor for a person to drive a
vehicle while under the influence or while impaired by the use
of alcohol, drugs, or both. (People v. Swain (1998) 959 P.2d
426, 429.) Under Colorado’s “driving while ability impaired”
statute, Colorado Revised Statute § 42-4-1202(1)(b),7 it
is
7 In 1993, Colorado Revised Statute section 42-2-1202
provided:
“(1)(b) It is a misdemeanor for any person who is impaired by
alcohol or by one or more drugs, or by a combination of alcohol
and one or more drugs, to drive any vehicle in this state.
13
illegal for a person to drive when affected “to the slightest
degree so that he is less able than he ordinarily would have
been . . . to exercise . . . due care in the safe operation of a
vehicle.” (C.R.S. § 42-4-1202(1)(g) (1990).) Colorado
law
(1)(g) ‘Driving while ability impaired’ means driving a vehicle
when a person has consumed alcohol or one or more drugs, or a
combination of both alcohol and one or more drugs, which alcohol
alone, or one or more drugs alone, or alcohol combined with one
or more drugs, affects him to the slightest degree so that he is
less able than he ordinarily would have been, either mentally or
physically, to exercise clear judgment, sufficient physical
control, or due care in the safe operation of a vehicle. . . .
(2) In any prosecution for a violation of paragraph (a) or (b)
of subsection (1) of this section, the amount of alcohol in the
defendant’s blood or breath at the time of the commission of the
alleged offense or within a reasonable time thereafter, as shown
by analysis of such person’s blood or breath, shall give rise to
the following presumptions:
(a) If there was at such time 0.05 or less grams of
alcohol per one hundred milliliters of blood as shown by
analysis of such person’s blood or if there was at such time
0.05 or less grams of alcohol per two hundred ten liters of
breath as shown by analysis of such person’s breath, it shall be
presumed that the defendant was not under the influence of
alcohol and the defendant’s ability to operate a vehicle was not
impaired by the consumption of alcohol.
(b) If there was at such time in excess of 0.05 but less
than 0.10 grams of alcohol per one hundred milliliters of blood
as shown by analysis of such person’s blood or if there was at
such time in excess of 0.05 but less than 0.10 grams of alcohol
per two hundred ten liters of breath as shown by analysis of
such person’s breath, such fact shall give rise to the
presumption that the defendant’s ability to operate a vehicle
was impaired by the consumption of alcohol, and such fact may
also be considered with other competent evidence in determining
whether or not the defendant was under the influence of alcohol
. . . .
14
presumes that one driving with a blood alcohol content (BAC)
over .05 percent and less than .10 percent commits this offense.
(C.R.S. § 42-4-1202(2)(b).)
Under a separate statute, Colorado makes it unlawful to
“driv[e] under the influence,” which requires a driver be
“substantially incapable” of safe operation of a vehicle.
(C.R.S. § 42-4-1202(1)(f); see Barnes v. People (1987) 735
P.2d
869, 872, fn. 2 [under Colorado law, a defendant is considered
“under the influence of intoxicating liquor” if the degree of
influence is “substantial so as to render the defendant
incapable of safely operating a vehicle”].) That offense is
generally based on a BAC of .10 percent or greater. (See Barnes
v. People, supra, 735 P.2d at pp. 872-873 [.10 percent or
greater blood alcohol content creates permissive inference that
the defendant was under the influence of alcohol].)
Referring to both statutes, the Colorado Supreme Court
recently pointed out that by enacting the legislation,
Colorado’s General Assembly “sought to foster public safety by
discouraging individuals from driving while under the influence
of alcohol” and cited cases recognizing that “the health, safety
and welfare of [citizens] . . . are endangered by those who
drive while under the influence of intoxicating liquors. . .”
(People v. Swain, supra, 959 P.2d at p. 459, citing People v.
Rister (1990) 803 P.2d 483, 487 [recognizing that “[i]t is
15
beyond debate that drunken driving is a serious problem, and
that the state has a substantial interest in preventing the loss
of life and damage to property caused by drunk drivers”].)
C. The California Statutes
California does not have a law identical to Colorado’s
“driving while ability impaired” statute. Section 23152
provides: “(a) It is unlawful for any person who is under the
influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage and drug, to drive
a vehicle. [¶] (b) It is unlawful for any person who has
0.08
percent or more, by weight, of alcohol in his or her blood to
drive a vehicle.” (§ 23152, subds. (a), (b).)
CALJIC No. 16.831 defines the term “under the influence”
for purposes of section 23152. It provides in part: “A person
is [under the influence of an alcoholic beverage] . . . when as
a result of [drinking such alcoholic beverage] . . . [his] [her]
physical or mental abilities are impaired to such a degree that
[he] [she] no longer has the ability to drive a vehicle with the
caution characteristic of a sober person of ordinary prudence
under the same or similar circumstances.” (See People v.
Weathington (1991) 231 Cal.App.3d 69, 81; People v. Schoonover
(1970) 5 Cal.App.3d 101, 107 [CALJIC No. 16.831 properly defines
“under the influence of intoxicating liquor”].)
16
Under section 23152 “‘it is not necessary to prove any
specific degree of intoxication, but . . .the question whether
the accused was “under the influence of intoxicating liquor” is
a question of fact to be determined by the court or jury from
all the proven circumstances of the case. . . .'” (People v.
Weathington, supra, 231 Cal.App.3d at p. 81, quoting People v.
Torres (1959) 167 Cal.App.2d 36, 38.)
D. Analysis
We treat McDonald’s guilty plea to the Colorado offense of
driving while ability impaired as a conviction. (§
13103.)
Because McDonald was not convicted of the separate offense of
driving under the influence of alcohol in Colorado, we do not
apply subdivision (a)(2) of section 15023. Instead, we must
apply either subdivision (b) or subdivision (c) of section
15023. Under either standard, California law requires the DMV
to give effect to the Colorado conviction if the Colorado DWAI
law is substantially similar in substance, interpretation and
enforcement to section 23152. (§ 13363, subd. (b).)
Black’s
Law Dictionary defines “substantially” in part as “Essentially .
. . in the main . . . materially; in a substantial manner.”
(Black’s Law Dict. (5th ed. 1979) p. 1281.) “Similar” is
defined in part as “having a general likeness, although allowing
for some degree of difference.” (Id. at p. 1240.)
17
Considering the important remedial purposes of the Compact
and the legislature’s edict that it be liberally construed, we
conclude that Colorado’s DWAI law is substantially similar to
section 23152 to permit its use as a license suspension
enhancement under section 13353.3. Generally, both statutes are
misdemeanors and both are aimed to deter and punish drivers
under the influence of alcohol. More specifically, the Colorado
DWAI law and section 23152 both require that impairment be found
when, due to ingesting alcohol, a driver’s control of a vehicle
is less than would be expected by a reasonably prudent driver.
McDonald argues the statutes are not similar because they
have different standards. Colorado’s DWAI law, he argues,
punishes an individual who is “affected to the ‘slightest
degree’ but still [is] able to exercise the caution
characteristic of an ordinary sober person,” whereas section
23152 punishes persons affected to the extent they are unable to
drive as an ordinary sober person. We disagree with McDonald’s
interpretation of the Colorado statute. A person who is driving
when affected by alcohol “to the slightest degree so that he is
less able than he ordinarily would have been, either mentally or
physically, to exercise clear judgment, sufficient physical
control, or due care in the safe operation of a vehicle”
necessarily is impaired or hampered to an extent that person is
less able to safely drive. In other words, a person cannot be
18
convicted of the offense in Colorado absent an inability to
drive as safely as he or she ordinarily would be able to do as
an ordinary sober person. If reduced ability to drive safely
were not a factor, enforcement of the law could lead to absurd
results, such as convicting a person for driving with a truly de
minimus blood alcohol level. We would reject such an
interpretation. (People v. Clark (1990) 50 Cal.3d 583, 605 [in
construing a statute susceptible to more than one meaning, the
court will adopt the meaning that is reasonable and reject the
one that would lead to an unjust and absurd result].) As to
section 23152, subdivision (a), McDonald fails to recognize that
a person less able to drive as an ordinary person is still a
person that cannot drive as an ordinary person. Conduct that
violates Colorado’s DWAI law therefore can constitute a
violation of section 23152, subdivision (a) in California, which
requires that, as a result of drinking alcohol, the driver be
impaired to the extent he or she cannot drive with the caution
of a sober person using ordinary prudence.
The differences between the Colorado and California
statutory schemes, including the varying levels of impairment,
do not prevent us from reaching this conclusion. The fact that
the DWAI law is a lesser included offense to Colorado’s DUI
statute is irrelevant. Apart from comparing the laws, our
analysis includes looking at the conduct prohibited by the
19
statute to determine whether it may be illegal under section
23152. Likewise, McDonald’s focus upon the statutes’ varying
presumptions is misplaced. Even if McDonald’s BAC in Colorado
was below 0.08 percent, he could still be found guilty of a
violation of section 23152, subdivision (a) in California. A
BAC of 0.08 percent or more only gives rise to a presumption
that the person was under the influence of alcohol at the time
of the alleged offense. (§ 23155, subd. (a)(3); Yordamlis
v.
Zolin (1992) 11 Cal.App.4th 655, 661, fn. 5.)
We finally reject McDonald’s contention that we must apply
the test used in criminal cases to determine whether a prior
foreign conviction can be considered a qualifying prior
conviction under the “Three Strikes” law. (See People v.
Woodell (1998) 17 Cal.4th 448, 453, People v. Rodriquez (1998)
17 Cal.4th 253, 262.) Under that test, the court determines
whether the prior foreign offense “involved conduct which
satisfies all of the elements of the comparable California
offense.” (People v. Woodell, supra, 17 Cal.4th at p. 453.)
Not only are we dealing with a different test (we determine
substantial similarity of laws rather than compare the conduct
with the offense to find equivalent elements), but the matter
involves a sanction that is civil, not criminal, in nature.
(Larsen v. Department of Motor Vehicles, supra, 12 Cal.4th at p.
20
286, fn. 6.) The test set forth in People v. Woodell does not
apply.8
8 The overwhelming majority of member states interpreting the
Compact have held lesser-included offenses, including Colorado’s
DWAI law, substantially similar to their DUI laws. (See e.g.
Mills v. Edgar (1989) 534 N.E.2d 187 [Colorado’s DWAI law
prohibits conduct substantially similar to conduct that
constitutes driving while under the influence of alcohol in
Illinois; the Illinois law prohibits driving when due to alcohol
ingestion the person’s mental and/or physical faculties are “so
impaired as to reduce his ability to think and act with ordinary
care”]; Marciniak v. State (1996) 911 P.2d 1197 [Nevada Supreme
Court held that Michigan’s “driving while visibly impaired”
statute, a lesser included offense to Michigan’s driving under
the influence statute, is substantially similar to Nevada’s DUI
law]; Przybyla v. South Carolina Department of Highways and
Public Transportation (1993) 437 S.E.2d 70 [South Carolina
Supreme Court held that although New York’s “driving while
ability impaired” statute prohibiting driving while impaired to
“any extent” is distinct from New York’s “driving while
intoxicated” statute which requires a greater degree of
impairment, New York’s DWAI law is substantially similar to
South Carolina’s DUI statute which makes no differentiation
within the offense concerning degrees of impairment; under the
spirit of the Compact, a violation of any statute which
prohibits driving while under any impairment from alcohol is of
a substantially similar nature to South Carolina’s DUI statute];
Montanye v. State (1993) 864 P.2d 1234, 1235-1236 [New York’s
DWAI law is similar to Montana’s DUI law which defines “under
the influence” as diminished ability to safely operate a motor
vehicle by ingestion of alcohol; both laws deal with the
driver’s diminished ability to drive while under the influence
of alcohol and carry with them potential punishment of a fine,
imprisonment and license revocation or suspension]; Division of
Motor Vehicles v. Lawrence (1983) 475 A.2d 1265 [New York DWAI
offense is of a substantially similar nature to New Jersey’s
driving while under the influence of intoxicating liquor
offense; New Jersey law prohibits driving after ingesting
alcohol to the extent that the person is “deprive[ed] . . . of
the clearness of intellect and control . . . which he would
21
DISPOSITION
The judgment is reversed and the case remanded to the trial
court with directions to deny McDonald’s petition for writ of
mandate and reinstate the DMV’s suspension order. The DMV shall
recover its costs on appeal.
CERTIFIED FOR PUBLICATION
O’ROURKE, J.
WE CONCUR:
KREMER, P.J.
HALLER, J.
otherwise possess”; both statutes deal with alcohol-related
offenses and are aimed to deter and punish drunk drivers]; see
also Kramer v. Colorado Department of Revenue, Motor Vehicle
Division (1998) 964 P.2d 629 [for purposes of determining
habitual offender status under Colorado law, court construed the
intent of the Compact to encompass prior convictions under Idaho
DUI law under which the state need not prove that the driver
could not drive safely or prudently but only that the driver’s
ability to drive was impaired by the influence of alcohol].)
Bill Lockyer, Attorney General, Martin H. Milas, Chief
Assistant Attorney General, Silvia M. Diaz and Martin W. Hagan,
Deputy Attorneys General, for Defendant and Appellant.
Thomas J. Warwick, Grimes & Warwick, for Plaintiff and
Respondent.
