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Kisielius v. Department of Motor Vehicles4/13/1981
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
Civ. No. 22655
1981.CA.40789 ; 117 Cal. App. 3d 966; 173 Cal. Rptr. 113
April 13, 1981
LINA KISIELIUS, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF MOTOR VEHICLES ET AL., DEFENDANTS AND RESPONDENTS
Superior Court of San Diego County, No. 441109, Gerald J. Lewis, Judge.
Thomas L. Marshall for Plaintiff and Appellant.
George Deukmejian, Attorney General, and Janelle B. Davis, Deputy Attorney General, for Defendants and Respondents.
Opinion by Brown (Gerald), P. J., with Cologne and Work, JJ., concurring.
Brown
Lina Kisielius appeals an order denying her petition for a writ of mandate compelling the Department of Motor Vehicles (DMV) to restore her driving privilege.
Kisielius was convicted of drunk driving (Veh. Code, § 23102) three times between December 1975 and July 1979 -- a period of about three and one-half years. On her second conviction in September 1978, the municipal court placed her on probation; instead of suspending her driving privilege, it ordered her to participate in an alcoholism treatment program under Health and Safety Code section 11837 et seq. The third conviction occurred less than a year later, while Kisielius was still on probation for the second conviction and participating in the treatment program. The municipal court ordered she "be permitted to complete" probation, on condition she comply with the court's September 1978 order. The order also stated, ". . . the Court declines to take a position regarding the power of the California Department of Motor Vehicles to revoke [Kisielius'] driving privilege." On August 31, 1979, the DMV notified Kisielius it had revoked her driving privilege, effective July 3, 1979. Contending the DMV lacked power to do so while she was participating in a treatment program under Health and Safety Code section 11837 et seq., Kisielius sought a writ of mandate to compel the DMV to restore her driving privilege. The superior court denied her petition, and she appeals.
The DMV must revoke the driving privilege of a person convicted of drunk driving three times within a seven-year period (Veh. Code, § 13352, subd. (e)). However, where the court certifies it has referred an individual to an approved alcoholism treatment program under Health and Safety Code section 11837 et seq., the DMV may not revoke his driving privilege (Veh. Code, § 13352.5, subd. (a)). A person
whose driving privilege has been suspended or revoked may also be referred to a treatment program (Health & Saf. Code, § 11837, subd.(c); Veh. Code, § 23102.3). A person is not eligible for admission or readmission to a treatment program under Health and Safety Code section 11837 et seq. until at least four years after the end of any "prior participation" -- successful or unsuccessful -- in such a program; if he is again convicted of drunk driving after completing a treatment program, the four-year period is calculated from the date of the offense (Health & Saf. Code, § 11837.3).
Kisielius disputes the superior court's finding she was not participating in a treatment program u
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