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BUI BRU HA HA

By David Salvin February 2nd, 2009

 

Published in "Orange County Lawyer Magazine" February 2009

In a world where such common terms as "driving" need to be interpreted and ruled upon, it is no surprise that we need court guidance to determine whether "boating under the influence" is actually "operating a motor vehicle." for the purposes of administrative action by the Department of Motor Vehicles. Such is the world for DUI crimes and DUI lawyers.

As I had previously described in an earlier article "The D in DUI Stands for Driving Doesn’t it?" (O.C. Lawyer - Jan -2007) , the California Vehicle Code defines a "driver" as "a person who drives or is in actual physical control of a vehicle." (Section 305VC) "Driving" has been also defined in various ways by various courts. Most recently and prominently by the California Supreme Court in Mercer v. DMV 53 Cal.3d 753 (1991). The Mercer court held that "Based on (I) the "plain meaning" of the statutory term "drive," (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word "drive" and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle." What was not determined, however, is whether or not "volitional movement" of the vehicle required the vehicle to move under its own power.

Section 415 of the California Vehicle Code defines a "motor vehicle" as "a vehicle which is self-propelled." Under these definitions the only distinction between a "motor vehicle" and a "vehicle" appears to be that the former is a device self-propelled, while the latter is a device propelled by its own force or by some other nonhuman force or power. "Driving has been held to include such unlikely things as a moped being pedaled without the motor (People v. Jordan 75 Cal.App.3d Supp. 1 (1977) ).

However the question then turns to whether a boat (or other water craft like a jet ski etc.) is considered a "motor vehicle" for the purposes of having one’s license suspended or revoked. While at first glance, it would seem simple. A boat usually has a motor (even many sailboats use a small motor to get out of harbor). A boat with a motor is usually moving and this movement is usually volitional on the part of the operator. Therefore, the DMV figured it had the mandate to suspend a persons’ drivers license when that person was convicted of boating under the influence. (Notwithstanding that fact that a person doesn’t need an operator’s license to operate a boat in the state of California). Using that logic, the DMV has, for many years, suspended (or attempted to suspend) peoples’ drivers licenses if they were convicted of boating under the influence.

The devil, as they say, is in the details. In DUI and BUI, however, the devil is in the Vehicle Code. A tome so sadistically contorted and cross referenced as to grant it honorary status in any level of hell Dante himself should conjure. The code sections specifically involved here are: Harbors and Navigation §655 and Vehicle Code Sections 23152 and 23620. The scheme works like this. Vehicle Code section 23152 deals with offenses involving driving a motor (land) vehicle. The punishments are generally laid out elsewhere in the code for your reading nightmare. Harbors and Navigation section 655 makes it illegal to operate a boat under the influence of alcohol. Fine. However, what the DMV needs is a "bridge" between the world of land vehicles and that of floating vehicles since 23152 doesn’t mention boats, nor does H&N 655 mention cars. The DMV finds its "bridge" in Vehicle Code section 23620.

Vehicle Code Section 23620 reads: "

(a) For the purposes of this division, Section 13352, and Chapter 12 (commencing with Section 23100) of Division 11, a separate offense that resulted in a conviction of a violation of subdivision (f) of Section 655 of the Harbors and Navigation Code or of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code is a separate offense of a violation of Section 23153.

(b) For the purposes of this division and Chapter 12 (commencing with Section 23100) of Division 11, and Section 13352, a separate offense that resulted in a conviction of a violation of subdivision (b), ( c) (d), or (e) of Section 655 of the Harbors and Navigation Code is a separate violation of Section 23152. [Amended 2007 ch. 747.]

To avoid making you all drift back and forth through the Vehicle Code looking for cross references, let me paraphrase the above. For the purposes of DMV mediated punishment (thus section 13352), a separate offense of BUI is considered a "separate offense" of 23152 (DUI)

The DMV read this statute and equated a "separate" violation of H&N 655 to mean "equivalent" to a DUI mentioned 23152. The DMV apparently reasoned that if they had the jurisdiction to suspend a persons’ license for a DUI, a BUI should be the same thing. After all, isn’t a boat a "motor vehicle" being "volitionally moved" by an operator. And therefore, should not that operator have his license to operate a vehicle suspended?

In 1997 , the California Supreme Court reviewed the meaning of "separate violation" or "separate violations" in all of the statutes increasing the penalties for repeat offenders. People v. Snook (1997) 16 Cal.4th 1210,1215. The Court defined a "separate" violation as a violation that is "unconnected; not united or associated; distinct." Cinquegrani v. DMV B199859 citing Snook, supra 16 Cal.4th at p.1217. So if we establish that a "separate" conviction is one that is apart, or distinct from the current issue, the plain meaning of the statute would mean that only a second, uninvolved conviction for BUI could be grounds for administrative punishment under the DMV authority. However, the DMV argues that the "separate" conviction for the BUI means that that action should be used for a current suspension of that person’s license.

The Court of Appeal in the Second Appellate District Division Two in Cinquegrani v. DMV 2008) 163 Cal.App.4th 741 [-- Cal.Rptr.3d --] was recently brought this argument in a class action seeking an injunction against the DMV to force them to stop taking Californians’ drivers licenses when they are convicted of a BUI. The DMV argued that when they receive a report from any court in California that a person suffered a BUI conviction, then they, the DMV, could count that as a separate conviction (obviously, they claim, because since the conviction was not one from the DMV it must be "separate" from their action- right?) and thus, pursuant to VC 23620, the DMV could now suspend that person’s license because they suffered a "separate conviction" (i.e. that from the original court).

The Court in Cinquegrani held that "The manner in which the DMV reads the statute substitutes the present tense for the past tense, so that a current BUI prosecution and conviction effectively "results" in a violation of the DUI statute." Cinquegrani 16 Cal.4th at 749. For support for their analysis, the Court went directly to the DMV itself. Apparently in 2004, the DMV proposed legislative amendments to section 23620 to give itself the power to act directly upon driver licenses when a person is convicted of a BUI. The court held that the DMV was in fact admitting that the statue as currently worded did not give the DMV authority to act upon a drivers license when a person is convicted of a BUI. Despite the fact that the DMV argued just the opposite in opposing the injunction in Cinquegrani.

As the matter was brought to the appellate court by way of injunction, the Court found that the Plaintiffs’ are likely to prevail on the merits of their arguments, that there is immediate and irreparable harm caused when a person loses their ability to drive and lastly, there is no harm to the DMV in not allowing them to take licenses.

With that said, and the court’s injunction issued, the DMV can still act on your drivers license if you get a BUI (or DUI), but it works like this. If you get a first time BUI, the DMV cannot suspend your license. However, if you get a first-time BUI and then, within ten years, get convicted of another BUI or another DUI, the DMV can, for the purposes of their administrative suspension, treat your second BUI or DUI as a second time offense and thus up the suspension from the usual four months to one year. This makes a BUI much like a "wet reckless" conviction in the courts. It by itself doesn’t count as a DUI, but counts as a DUI if you ever get another one.

With the injunction issued, and the class in Cinquegrani certified, it remains to be seen how much this DMV power grab will cost the people of California.

In order to see Mr. Salvin's Article in the index for the Orange County Bar Association Lawyer's Magazine click here.


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