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Kisielius v. Department of Motor Vehicles4/13/1981
nder Health and Safety Code section 11837 et seq. on her third conviction. However, the municipal court's order of July 12, 1979, following the third conviction, specifically refers to completion of Kisielius' probation; it did not order her to begin a new treatment program. In addition, no evidence was presented to the superior court showing the municipal court had certified to the DMV Kisielius was participating in a treatment program ordered on her third conviction. Finally, because her "prior participation" in the treatment program ordered on her second conviction had not yet even ended, Kisielius was not eligible under Health and Safety Code section 11837.3 for referral to a treatment program on her third conviction. Substantial evidence supports the superior court's finding. Because Kisielius was not participating in a treatment program ordered on the third conviction, section 13352.5 of the Vehicle Code did not preclude the DMV from revoking her driving privilege.
Kisielius argues, however, as long as an individual is participating in a court-ordered alcoholism treatment program, the DMV wholly lacks power to suspend or revoke his driving privilege, even if he is again convicted of drunk driving . This contention is without merit. Under the statutory scheme, referral to a treatment program and suspension or revocation of the driving privilege are not mutually exclusive alternatives. Indeed, Health and Safety Code section 11837 subdivision (c), specifically authorizes the court to order a person whose driving privilege has been suspended or revoked to participate in treatment. Moreover, under Health and Safety Code section 11837.3, an individual who is convicted of drunk driving within four years of participating in a program is ineligible for referral to treatment, and the DMV may suspend or revoke his driving privilege under the applicable provisions of the Vehicle Code. It would be anomalous to permit a person to retain his driving privilege merely because his next offense occurred sooner -- while he was still
participating in treatment. The statutory scheme reflects a legislative intent not to permit frequent repeat offenders to retain driving privileges while undergoing treatment. Section 13352.5 of the Vehicle Code does not deprive the DMV of power to suspend or revoke the driving privilege of an individual who is convicted of drunk driving while participating in a court-ordered treatment program, under Health and Safety Code section 11837 et seq., for an earlier offense.
The order is affirmed.
Disposition
The order is affirmed.
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