McLaughlin v. DMV

Filed 7/17/06 McLaughlin v. DMV CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.

Timothy Lee McLaughlin appeals a judgment denying his petition for writ of administrative mandate. The petition challenged the order of the State of California Department of Motor Vehicles (DMV) suspending his driver's license for two years pursuant to Vehicle Code section 13352, subdivision (a)(3).^[1] At the time of the DMV's order, section 13352, subdivision (a)(3) required the DMV to immediately impose a two-year suspension on the driver's license of any person on its receipt of a court record showing that person had been convicted twice of certain driving offenses (e.g., § 23152 [driving while intoxicated or "DUI"]) within a seven-year period.^[2] On appeal, McLaughlin contends: (1) the DMV was required to treat him as a first-time offender under section 13352, subdivision (a)(1) because the criminal court, on accepting his plea of no contest to his most recently charged section 23152 offense, agreed to "strike" his prior section 23152 conviction; (2) the DMV should have continued the hearing on his license suspension to allow him to directly attack the validity of his prior section 23152 conviction in the criminal court; (3) the DMV's order is constitutionally infirm; and (4) the doctrine of collateral estoppel bars the DMV from imposing a license suspension based, in part, on his prior section 23152 conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On December 26, 2000, McLaughlin was convicted of driving a vehicle with a blood alcohol content of .08 percent or more (§ 23152, subd. (b)).^[3]

On August 9, 2004, McLaughlin was arrested for driving a vehicle while under the influence of alcohol and with a blood alcohol content of .08 percent or more (§ 23152, subds. (a), (b)). The arresting officer issued a DMV administrative per se order (pursuant to section 13353.2) suspending McLaughlin's driver's license for driving with a blood alcohol content of .08 percent or more.^[4]

On October 14, apparently pursuant to a plea bargain, McLaughlin entered a plea of no contest to the charge of driving while under the influence of alcohol (§ 23152, subd. (a)) and the criminal court dismissed his prior DUI conviction allegation.^[5] Accordingly, the court sentenced McLaughlin as a first-time DUI offender, granting him probation and ordering him to pay a fine and attend a three-month MADD program. The court also ordered that McLaughlin's driver's license would be restricted for a 90-day period "consecutive to any DMV suspension/action."

On November 9, a hearing was held by a DMV hearing officer on the August 9 administrative per se suspension of McLaughlin's driver's license. After the hearing, the DMV issued its notification of findings and decision, finding the evidence showed he was driving a vehicle with a blood alcohol content of .08 percent or more and re-imposing the one-year suspension of McLaughlin's license (pursuant to § 13353.2) that had been stayed pending the hearing.

On November 15, the DMV issued an order suspending McLaughlin's driver's license for two years (i.e., from October 14, 2004, through October 14, 2006) pursuant to section 13352, subdivision (a)(3) based on his two section 23152 convictions within seven years.^[6] That order noted McLaughlin was convicted on December 26, 2000, of a section 23152, subdivision (b) offense and on October 14, 2004, of a section 23152, subdivision (a) offense.

On December 9, McLaughlin filed a petition for writ of administrative mandate with the trial court, challenging the DMV's November 15 order that suspended his driver's license for two years pursuant to section 13352, subdivision (a)(3). He subsequently filed a separate motion for writ of administrative mandate. He primarily argued that because the criminal court "struck" his prior DUI conviction allegation in accepting his October 14, 2004 plea of no contest, he could not be treated by the DMV as a second-time DUI offender under section 13352, subdivision (a)(3). The DMV opposed the petition (and motion) for writ of administrative mandate, arguing McLaughlin was a second-time DUI offender under section 13352, subdivision (a)(3) because the criminal court struck his prior DUI conviction allegation only for purposes of sentencing him pursuant to his plea bargain.

On August 19, 2005, the trial court issued a judgment denying McLaughlin's petition.^[7]

McLaughlin timely filed a notice of appeal.

DISCUSSION

I

Treatment of McLaughlin's October 14, 2004 Conviction as a

Second Conviction Pursuant to Section 13352, Subdivision (a)(3)

McLaughlin contends the trial court erred by concluding the DMV properly considered his October 14, 2004 conviction to be a second DUI offense for the purpose of imposing a two-year license suspension under section 13352, subdivision (a)(3). He argues that because the criminal court struck his prior DUI conviction allegation pursuant to his plea bargain, the DMV cannot rely on that prior conviction in imposing its administrative suspension under section 13352, subdivision (a)(3).

A

In 2004, section 13352 provided:

"(a) The department shall immediately suspend or revoke, or record the court-administered suspension or revocation of, the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of a violation of Section 23152 or 23153 or subdivision (a) of Section 23109 . . . . For the purposes of this section, suspension or revocation shall be as follows:

"(1) Upon a conviction or finding of a violation of Section 23152 punishable under Section 23536, the privilege shall be suspended for a period of six months. . . . [¶] . . . [¶]

"(3) Except as provided in Section 13352.5, upon a conviction or finding of a violation of Section 23152 punishable under Section 23540, the privilege shall be suspended for two years. . . ."^[8] (Italics added.)

In 2004, section 23536 provided:

"(a) If any person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000)."

In 2004, section 23540 provided:

"If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of a separate violation of Section 23103, . . . 23152, or 23153, which resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person's privilege to operate a motor vehicle shall be suspended by the [DMV] pursuant to paragraph (3) of subdivision (a) of Section 13352."^[9] (Italics added.)

Under section 13352, the DMV has a mandatory duty to immediately suspend or revoke a person's driver's license on its receipt of a duly certified abstract of the record of any court showing that person has been convicted of a violation of Section 23152. (§ 13352, subd. (a); McDaniel v. Department of Motor Vehicles (1994) 22 Cal.App.4th 76, 80; Corley v. Department of Motor Vehicles (1990) 222 Cal.App.3d 72, 75, 78; Williams v. Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 953.) The Supreme Court held in Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367: "[T]he DMV, under section 13352, subdivision (a)(3), is mandated to suspend the driving privileges of a driver convicted of a second drunk driving offense within five years [seven years in 2004]." (Pollack, at p. 377, fn. omitted.) As that court noted in Hough v. McCarthy (1960) 54 Cal.2d 273: "[S]ection 13352, which declares that the [DMV] 'shall immediately' suspend or revoke, is mandatory with respect to the specific situations there referred to. Under section 15 of the Vehicle Code, ' "Shall" is mandatory . . . .' " (Id. at p. 279, italics added.) Therefore the DMV's "duty to suspend [under section 13352] is mandatory upon a second conviction within seven years. [Citations.]" (Houlihan v. Department of Motor Vehicles (1970) 3 Cal.App.3d 915, 919.) Alternatively stated, the DMV "acts in performance of a mandatory duty to suspend upon a second conviction for drunk driving within seven years when it receives a record of that conviction." (Id. at p. 920.)

The DMV's duty under section 13352 "is to suspend or revoke a license based on the fact of convictions, and not on how offenders can be, or are, sentenced in the criminal courts." (Vary v. Forrest (1988) 201 Cal.App.3d 1506, 1513.) A suspension or revocation of a driver's license under section 13352 is regulatory and not penal in nature, and its purpose is to protect the public from drivers shown to have driven dangerously. (Campbell v. Department of Motor Vehicles (1984) 155 Cal.App.3d 716, 718; Beamon v. Dept. of Motor Vehicles (1960) 180 Cal.App.2d 200, 210.) A suspension imposed by the DMV under section 13352 "is an administrative remedy devised by the Legislature, based on compelling public policy considerations." (Corley v. Department of Motor Vehicles, supra, 222 Cal.App.3d at p. 78.) "The thrust of the legislative concern under Vehicle Code section 13352 [is] . . . protection of the public from drivers whose prior conduct demonstrates they cannot currently be trusted with a license to drive." (Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at pp. 380-381.) The legislative scheme "contemplate[s] two processes--one involving court proceedings and criminal in nature, the other involving administrative proceedings and civil in nature; and . . . these processes are, for the most part, intended to operate independently of each other and to provide for different dispositions." (Robertson v. Department of Motor Vehicles (1992) 7 Cal.App.4th 938, 947.) The Legislature intended a license suspension by the DMV under section 13352 to follow administratively from the record of convictions. (Pollack, supra, at p. 381.)

B

McLaughlin asserts that because the criminal court dismissed his prior DUI conviction allegation on accepting his plea of no contest in his most recent DUI case and sentenced him as a first-time offender, the DMV was precluded from suspending his license for two years as a second-time offender under section 13352, subdivision (a)(3). He argues the criminal court effectively invalidated his prior DUI conviction and therefore there no longer existed a record of conviction for that prior conviction on which the DMV was required to, or could, impose a two-year license suspension. He argues the DMV instead had authority or a duty only to impose a one-year suspension on him as a first-time offender under section 13352, subdivision (a)(1).

We conclude neither the law nor the record supports McLaughlin's assertion. The appellate record contains only limited information regarding the criminal proceedings in McLaughlin's most recent DUI case. The record includes a printed criminal court form entitled "Misdemeanor/Felony -- Pre-disposition Minutes." The court completed that form, dated October 14, 2004, in accepting McLaughlin's plea of no contest to the charge that he violated section 23152, subdivision (a). That form, as completed in his case, contains an "X" in a box adjacent to the printed statement: "On motion of Court/People/Defendant Allegation(s)/Prior(s) ______ remaining is/are STRICKEN . . . ." The words "Prior(s)" and "STRICKEN" in that statement are circled, presumably indicating the court's selection of those words as applicable to its selection of that statement. Therefore, the criminal court's predisposition minutes show that in accepting McLaughlin's plea of no contest, the court "struck" McLaughlin's prior conviction allegation. However, the appellate record does not contain any reporter's transcript from that predisposition hearing or any other information explaining what the court intended by its "striking" his prior conviction allegation.^[10]

Given the dearth of information regarding the criminal court's intent in "striking" McLaughlin's prior conviction allegation on accepting his plea of no contest, we apply established case law to aid us in interpreting that court action. As the Supreme Court stated in People v. Superior Court (Romero) (1996) 13 Cal.4th 497: "When a court strikes prior felony conviction allegations in this way [i.e., dismissing under Penal Code section 1385, subdivision (a), an allegation a defendant has a prior felony conviction], it ' "does not wipe out such prior [felony] convictions or prevent them from being considered in connection with later convictions." ' (People v. Burke [(1956) 47 Cal.2d 45, 51, disapproved on another ground in People v. Sidener (1962) 58 Cal.2d 645, 647].) Instead, the order striking such allegations simply embodies the court's determination that, ' "in the interest of justice" defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of [the alleged] fact.' (Id. at p. 50.)" (People v. Superior Court (Romero), supra, at p. 508.) People v. Burke, supra, 47 Cal.2d 45, quoted favorably in Romero, further stated:

"The striking or dismissal of a charge of prior conviction (regardless of whether it has or has not been admitted or established by the evidence) is not the equivalent of a determination that defendant did not in fact suffer the conviction [citations]; such judicial action is taken, in the words of defendant's counsel, 'for the purpose of sentencing' only and 'any dismissal of charges of prior convictions . . . does not wipe out such prior convictions or prevent them from being considered in connection with later convictions' (People v. Coyle (1948) . . . 88 Cal.App.2d 967, 973-974.)" (People v. Burke, supra, 47 Cal.2d at p. 51, italics added.)

Therefore, in "striking" a prior conviction (or allegation of a prior conviction), a criminal court does not invalidate, set aside, or otherwise void that prior conviction (e.g., for purposes of future criminal or other actions), but rather exercises its section 1385 discretion to disregard that prior conviction in considering the instant criminal case (e.g., in sentencing the defendant for his or her instant offense as a first-time, rather than as a repeat, offender). (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 508; People v. Burke, supra, 47 Cal.2d at pp. 50-51; People v. Coyle, supra, 88 Cal.App.2d at pp. 973-974.)

In the context of DMV administrative license suspensions and revocations, courts have applied that general principle regarding a criminal court's "striking" of prior convictions. Pollack stated that "the [criminal] court's decision to strike prior convictions would have no effect upon the DMV's authority to suspend or revoke driving privileges." (Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at p. 378.) Nicolino v. Cozens (1973) 33 Cal.App.3d 1024 stated: "[T]he mere striking of a prior conviction by the [criminal] court is not the equivalent of a determination that the defendant did not in fact suffer the [prior] conviction." (Id. at p. 1026, italics added; see also Cook v. Bright (1962) 208 Cal.App.2d 98, 101 [striking of a charge of prior convictions is not equivalent to a determination that defendant did not in fact suffer the conviction].) Nicolino reasoned:

"[T]o permit the [criminal] court to merely strike a prior conviction which it has not expressly found to be invalid and effectively order that there be no suspension under section 13352 would violate legislative intent by allowing the [criminal] court in effect to decide whether or not suspension of driving privileges should be imposed [by the DMV] on any second conviction . . . ." (Nicolino v. Cozens, supra, 33 Cal.App.3d at p. 1026, italics added.)

Therefore, absent an express finding by the criminal court that a prior conviction of a defendant is invalid or void, a prior DUI conviction remains in effect for purposes of the DMV's duty under section 13352 to suspend or revoke that defendant's driver's license. Furthermore, a criminal court's mere "striking" of a prior DUI conviction allegation in accepting a defendant's plea or sentencing him or her, without an express finding that the prior conviction is invalid or void, does not invalidate, set aside, or void that prior conviction or otherwise eliminate or "erase" it from the criminal court's records on which the DMV relies in suspending and revoking licenses under section 13352. To obtain an express finding that a prior conviction is invalid or void, a person must seek that specific relief in the criminal court that rendered the judgment of conviction. "[A] driver who contests the validity of prior convictions is entitled to bring a challenge against [those] convictions within the rendering court system. [Citations.]" (Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at p. 380.)

In the circumstances of this case, because the criminal court, in accepting McLaughlin's plea of no contest to his most recently charged DUI offense, merely stated that it struck his prior conviction allegation, McLaughlin's prior DUI conviction remained valid and in effect thereafter for all purposes (other than for the criminal court's sentencing of McLaughlin for that recent DUI offense), including for purposes of the DMV's duty to suspend his driver's license as a second-time DUI offender pursuant to section 13352, subdivision (a)(3). The appellate record in this case does not support McLaughlin's assertion that he challenged the validity of his prior DUI conviction in the criminal case regarding his most recent DUI offense. Accordingly, in considering McLaughlin's petition for writ of administrative mandate, the trial court did not err by concluding the DMV properly considered his October 14, 2004 conviction to be a second DUI offense for purpose of imposing a two-year license suspension under section 13352, subdivision (a)(3).

II

Denial of a Continuance

McLaughlin summarily contends the DMV should have granted a continuance of the hearing on the suspension of his driver's license to allow him an opportunity to seek relief from the criminal court expressly invalidating or voiding his prior DUI conviction. However, he does not cite to the record showing he requested a continuance. Therefore, we deem that purported error to be waived. In any event, because his conclusory assertion is unsupported by any substantive analysis of the facts or issues in this case, he has not carried his burden on appeal to show the DMV erred in denying a continuance of the hearing on his petition. Furthermore, because the DMV had a duty to immediately suspend McLaughlin's driver's license pursuant to section 13352, subdivision (a)(3) on its receipt of court records showing he had two DUI convictions within seven years, no hearing was held, or was required to be held, by the DMV before imposing that "automatic" suspension. Therefore, there was no DMV hearing to continue pending an attempt by McLaughlin to obtain express relief from the criminal court invalidating or voiding his prior DUI conviction.^[11]

III

Constitutionality of DMV's Orders

McLaughlin contends the DMV's orders violated the separation of powers doctrine, the double jeopardy clause of the Fifth Amendment of the United States Constitution, and his constitutional right to due process.

A

McLaughlin argues the DMV's orders (dated November 9 and November 15, 2004) reflect its refusal to recognize the criminal court's judgment that dismissed his prior conviction allegation, thereby violating the separation of powers doctrine (Cal. Const., art. III, § 3). However, because the criminal court did not invalidate or void McLaughlin's prior DUI conviction as discussed in part I.B., ante, his argument appears to be based on a faulty premise. The criminal court's action in his most recent DUI case reflected its dismissal of his prior DUI conviction only for purposes of accepting his plea and sentencing him for that recent DUI offense; the court did not invalidate or void his prior DUI conviction. Therefore, the DMV did not refuse to recognize the criminal court's judgment, which did not address or otherwise affect the validity of McLaughlin's prior conviction.

To the extent McLaughlin argues the DMV should have treated his prior conviction in the same manner as the criminal court did in his most recent DUI case, established case law shows the DMV is not bound to follow a criminal court's decision in exercising its (the court's) discretion regarding a person's prior convictions. Rather, the DMV has an independent duty to suspend or revoke that person's driver's license on receipt of a court record showing the provisions of section 13352 apply. "[T]he provisions of section 13352 in no way violate the doctrine of separation of powers, as they do not simply provide the [DMV] with the discretion to decide whether or not suspension of driving privileges should be imposed, but require that suspension or revocation take place in specific instances." (Nicolino v. Cozens, supra, 33 Cal.App.3d at p. 1026; see also Cook v. Bright, supra, 208 Cal.App.2d at p. 102.) In Baldwin v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1630, 1633, although the criminal court dismissed one of the defendant's two prior convictions for purposes of sentencing him, the DMV revoked his driver's license based on both of those prior convictions (pursuant to section 13352, subdivision (a)(5)). Baldwin upheld the DMV's action, stating: "Despite the [criminal] court's action, Baldwin was 'punishable under section 23170' within the meaning of section 13352, subdivision (a)(5), because he suffered three convictions under section 23152 within seven years. Therefore, the DMV acted properly in revoking his driving privilege for three years." (Baldwin, supra, at p. 1636.) The DMV's obligation under section 13352 to impose an administrative suspension on a person's driver's license based on that person's DUI convictions is independent of a criminal court's decision to exercise its discretion to dismiss that person's prior conviction allegations in sentencing him or her. (Robertson v. Department of Motor Vehicle, supra, 7 Cal.App.4th at p. 949; Corley v. Department of Motor Vehicle, supra, 222 Cal.App.3d at pp. 77-79.)

Finally, in our recent opinion in Brierton v. Department of Motor Vehicles (2006) 140 Cal.App.4th 427, we noted "it is clear that the civil and criminal legislative schemes created, respectively, to protect the public from, and to impose punishment on, individuals who are convicted of multiple drunk driving offenses do not implicate separation of powers concerns." (Id. at p. 438, fn. omitted.) In Brierton, we concluded: "[T]he fact that the DMV may impose an administrative sanction that is not identical to a trial court's sentence does not mean that the DMV's sanction violates the separation of powers doctrine." (Id. at p. 439.) Accordingly, in this case we conclude the DMV's orders suspending McLaughlin's driver's license did not violate the separation of powers doctrine.

B

McLaughlin also asserts the DMV's orders violate the double jeopardy clause of the Fifth Amendment of the United States Constitution. Although he concedes "most appellate courts" have ruled the double jeopardy clause is not violated by the DMV's imposition of an administrative license suspension separate from a criminal court's decision in sentencing a person for a DUI offense, he asks that we disagree with established case authority and conclude an administrative license suspension by the DMV is punitive in nature and thereby violates the double jeopardy clause.^[12]

Citing Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at pages 380-381, Baldwin v. Department of Motor Vehicles, supra, 35 Cal.App.4th 1630 reasoned that because DMV driver's license suspensions and revocations are intended to protect the public from drivers who have shown they cannot be trusted with a license, DMV suspensions and revocations under section 13352 do not constitute punishment and therefore do not violate the double jeopardy clause. (Baldwin, at pp. 1638-1642.) McLaughlin does not persuade us to conclude otherwise. Accordingly, we agree with and adopt the reasoning of Baldwin in this case and conclude the DMV's orders suspending McLaughlin's driver's license did not violate the double jeopardy clause.

C

McLaughlin argues the DMV orders violated his constitutional right to due process of law because the DMV, without a hearing, suspended his driver's license for two years after it had previously suspended his driver's license for one year following a hearing.

In Paterson v. Department of Motor Vehicles (1985) 171 Cal.App.3d 1126, the court held that a driver's license suspension by the DMV pursuant to section 13352, without a prior DMV hearing, did not violate the driver's constitutional right to due process. (Paterson, at p. 1129.) Paterson reasoned:

"The facts which gave rise to the application of Vehicle Code section 13352 in plaintiff's case had already been judicially established by the highest standard of proof known to our law, proof beyond a reasonable doubt, or by his admission. Another due process hearing as to the existence of such facts would be idle. ' "The only precedent event required as the basis for action by the [DMV] is the receipt by it of 'a record' of conviction[s]." ' [Citations.] ' "Revocations on such grounds constitute ministerial action . . . rather than quasi judicial action." . . . " 'In such cases the facts have already been determined in the criminal proceeding.' " ' [Citation]." (Paterson, at p. 1129.)

Under section 13352, the DMV has a mandatory duty to immediately suspend or revoke a person's driver's license on its receipt of a duly certified abstract of the record of any court showing that person has been convicted of a violation of Section 23152. (§ 13352, subd. (a); McDaniel v. Department of Motor Vehicles, supra, 22 Cal.App.4th at p. 80; Corley v. Department of Motor Vehicles, supra, 222 Cal.App.3d at pp. 75, 78; Williams v. Department of Motor Vehicles, supra, 2 Cal.App.3d at p. 953.) Accordingly, we agree with the reasoning and holding in Paterson that the DMV's duty under section 13352 to immediately impose a license suspension without the need for a prior hearing does not violate a driver's constitutional right to due process of law. (Paterson v. Department of Motor Vehicles, supra, 171 Cal.App.3d at p. 1126; see also Pollack v. Department of Motor Vehicles, supra, 38 Cal.3d at p. 380 ["due process does not require an administrative hearing prior to revocation of driving privileges where the threat to public safety is sufficiently obvious to justify immediate termination"]; Hough v. McCarthy, supra, 54 Cal.2d at p. 285; Cook v. Bright, supra, 208 Cal.App.2d at pp. 102-103.)

Although McLaughlin apparently concedes the DMV has a mandatory duty under section 13352 to suspend a person's driver's license on its receipt of a court record showing that person has been convicted of a violation of Section 23152, he argues section 13352 does not require a license suspension by the DMV if the criminal court has dismissed that person's prior conviction in sentencing him or her. However, because we rejected that argument ante, the DMV's immediate suspension of McLaughlin's license under section 13352 without a prior hearing did not violate his constitutional right to due process.

McLaughlin also apparently argues that because the DMV, following a hearing on November 9, 2004, re-imposed its administrative per se suspension of his driver's license for one year pursuant to section 13353.2, it could not subsequently (on November 15) impose a two-year suspension of his driver's license pursuant to section 13352 without a hearing. He argues that subsequent "change" (on November 15) in the DMV's decision without a hearing violated his right to due process of law. However, the DMV's November 15 order did not "change" or otherwise address its November 9 order. Those orders were issued pursuant to separate and independent provisions of the Vehicle Code. As shown by the factual discussion ante, the first order was an administrative per se order suspending McLaughlin's driver's license pursuant to section 13353.2 based solely on evidence showing that he had a blood alcohol content of .08 percent or more after his arrest on August 9, 2004. In contrast, the DMV's immediate suspension of McLaughlin's driver's license pursuant to section 13352 without a prior hearing on court records showing his two DUI convictions within seven years. Therefore, because those two orders of the DMV were based on two independent statutory sections and two different sets of facts, they were not inconsistent and did not violate McLaughlin's constitutional right to due process.^[13]

IV

Doctrine of Collateral Estoppel

McLaughlin contends the DMV is collaterally estopped from considering his prior DUI conviction as a basis for its suspension of his driver's license pursuant to section 13352 because the criminal court dismissed that prior conviction allegation in accepting his plea in his most recent DUI case. Citing Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335 and Morris v. Department of Motor Vehicles (1991) 231 Cal.App.3d 151, he argues he "attack[ed] the alleged prior [conviction] during settlement negotiations and open court proceedings" during his recent DUI case. Because the criminal court agreed to dismiss his prior conviction allegation in exchange for his plea, he argues that court's judgment is res judicata, or has a collateral estoppel effect, on the issue of his prior conviction and therefore the DMV could not rely on that prior DUI conviction in suspending his license under section 13352, subdivision (a)(3).

However, the premise of McLaughlin's contention is ill-founded. As discussed in part I.B., ante, the record on appeal does not show the criminal court in accepting his plea and sentencing him in his most recent DUI case found his prior DUI conviction was invalid or void. Rather, it merely exercised its discretion under section 1385 to strike his prior conviction (or an allegation) in sentencing him for his most recent DUI offense. Nicolino v. Cozens, supra, 33 Cal.App.3d 1024 stated: "[T]he mere striking of a prior conviction by the [criminal] court is not the equivalent of a determination that the defendant did not in fact suffer the [prior] conviction." (Id. at p. 1026, italics added.) In the circumstances of this case, because the criminal court, in accepting McLaughlin's plea of no contest to his instant charged DUI offense, merely stated that it dismissed his prior conviction allegation, McLaughlin's prior DUI conviction remained valid and in effect thereafter for all purposes (other than for the criminal court's sentencing of McLaughlin on the instant offense), including for purposes of the DMV's duty to suspend his driver's license as a second-time DUI offender pursuant to section 13352, subdivision (a)(3). Accordingly, the doctrine of collateral estoppel (or res judicata) does not apply to bar the DMV from relying, in part, on the court record of his prior DUI conviction in suspending his driver's license pursuant to section 13352, subdivision (a)(3). (Cf. Vary v. Forrest, supra, 201 Cal.App.3d at pp. 1511-1513.) The trial court properly denied McLaughlin's petition.

DISPOSITION

The judgment is affirmed. The DMV is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Vehicle Code unless otherwise specified.

^[2] That license suspension applies "upon a conviction or finding of a violation of Section 23152 punishable under Section 23540." (§ 13352, subd. (a)(3).) Effective September 20, 2005, section 23540 was amended to punish persons convicted of two section 23152 (or other qualifying) offenses within a 10-year period, rather than the seven-year period that applied prior to that amendment. (Stats. 2004, ch. 551, § 17.5.)

^[3] Although both McLaughlin and the DMV also refer to his January 9, 1999 conviction of a section 23140 offense (i.e., driving a vehicle while under the age of 21 years and with a blood alcohol content of .05 percent or more), that offense is not a qualifying prior DUI offense under the repeat offender sentencing statute (§ 23540) potentially applicable to his criminal case or under the instant DMV suspension statute at issue in this appeal (§ 13352, subd. (a)(3)) referring to that statute. Because McLaughlin's section 23140 offense is irrelevant to the issues in this appeal, we do not discuss it further.

^[4] Section 13353.2, subdivision (a) provides: "The [DMV] shall immediately suspend the privilege of any person to operate a motor vehicle for any one of the following reasons: [¶] (1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood. . . ." Pursuant to section 13353.3, subdivision (a), that suspension became effective 30 days after he was served with notice by the arresting officer and, because of his prior DUI violation, was for a one-year period (§ 13353.3, subd. (b)(2)).

^[5] Although the record on appeal does not contain a copy of the criminal complaint filed against McLaughlin, his opening brief states (without a supporting cite to the record) that on September 2, 2004, a complaint was filed against him for violations of section 23152, subdivision (a) and section 23152, subdivision (b). For purposes of this appeal, we assume that complaint alleged those violations and also alleged McLaughlin had a prior conviction under section 23152, subdivision (b) on December 26, 2000 (for an offense committed on October 14, 2000), thereby subjecting him to the provisions of section 23540.

^[6] The order also required McLaughlin to complete an 18-month DUI program.

^[7] Although the trial court's decision is entitled a "minute order," its decision finally disposed of McLaughlin's petition. Therefore, we treat the trial court's decision as a final judgment for purposes of this appeal.

^[8] McLaughlin does not assert that the exception to the provisions of section 13352, subdivision (a)(3) pursuant to section 13352.5 (which allows restriction rather than suspension of a driver's license in certain circumstances) applies in his case.

^[9] As noted ante, effective September 20, 2005, section 23540 was amended to increase the applicable period for a second qualifying offense from seven to 10 years.

^[10] The appellate record does not contain any written or oral criminal court motions by McLaughlin to dismiss his prior conviction allegation.

^[11] To the extent McLaughlin may have been referring to the DMV's hearing held on its administrative per se one-year suspension of his license pursuant to section 13353.2, that hearing was unrelated to, and independent of, the DMV's duty to immediately suspend his license, without a hearing, pursuant to section 13352, subdivision (a)(3).

^[12] Although McLaughlin concedes only that "most appellate courts" have ruled the double jeopardy clause is not violated by administrative license suspensions by the DMV, he does not cite any California case holding the double jeopardy clause is violated by such suspensions by the DMV. We could not locate any California appellate case holding the double jeopardy clause is violated by DMV license suspensions.

^[13] We also conclude the DMV's orders did not violate the double jeopardy clause of the Fifth Amendment of the United States Constitution. The DMV's November 15, 2004 order suspending his driver's license for two years did not constitute a "third punishment for the same offense."