DMV Loses in Admin Per Se Appeal

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.

DUI Attorneys


DUI.com | DWI.com

Speak Your Mind

*