Axness

Petitioner Eric V. Axness (appellant) appeals from an order denying his amended petition for writ of mandate to prevent the California Department of Motor Vehicles (department) from suspending his California driver’s license based on two convictions of driving under the influence (Veh. Code, § 23152) 1 within five years. The petition challenges the suspension on the ground that the second conviction, which occurred in Minneso *1493 ta, was unconstitutional. We hold that in the circumstances of this case appellant may challenge the constitutionality of the Minnesota conviction by way of mandamus against the department, and we conclude that his petition should have been granted.

On March 5, 1984, in Walnut Creek, California, appellant was convicted of driving under the influence. (§ 23152, subd. (b).) On August 8, 1986, in Saint Cloud, Minnesota, appellant was convicted of driving while intoxicated. Upon being notified of the Minnesota conviction, the department served its order dated September 16, 1986, suspending appellant’s California driver’s license for a period of eighteen months based on the occurrence of the two convictions within a five-year period. (§§ 13352,…

John K. Van de Kamp, Attorney General, N. Eugene Hill, Assistant Attorney General, Mary C. Michel, Robert E. Murphy and Eleanor Nisperos, Deputy Attorneys General, for Real Party in Interest.

OPINION

PERLEY, J.

Petitioner Eric V. Axness (appellant) appeals from an order denying his amended petition for writ of mandate to prevent the California Department of Motor Vehicles (department) from suspending his California driver's license based on two convictions of driving under the influence (Veh. Code, § 23152) [1] within five years. The petition challenges the suspension on the ground that the second conviction, which occurred in Minnesota, was unconstitutional. We hold that in the circumstances of this case appellant may challenge the constitutionality of the Minnesota conviction by way of mandamus against the department, and we conclude that his petition should have been granted.

On March 5, 1984, in Walnut Creek, California, appellant was convicted of driving under the influence. (§ 23152, subd. (b).) On August 8, 1986, in Saint Cloud, Minnesota, appellant was convicted of driving while intoxicated. Upon being notified of the Minnesota conviction, the department served its…

I concur in my colleagues’ opinion insofar as it recognizes appellant’s right to challenge the constitutionality of the Minnesota conviction by mandamus against the department in a California court. I respectfully dissent from that portion of the opinion which holds the Minnesota conviction invalid and reverses the trial court’s denial of the petition. I quite agree with the majority that a driver who leaves California does not leave behind his federal constitutional rights, and I further agree that in testing the constitutionality of out-of-state convictions we refer to federal constitutional rights and are governed by the United States Supreme Court decisions interpreting these rights. I respectfully part company with my colleagues, however, when they hold that applying such federal authority, appellant has proven by a preponderance of the evidence that his Minnesota conviction was obtained in violation of those rights. In effect the majority holds that unless the record expressly reflects a specific waiver of appellant’s right to confront his accusers, federal law deems that his plea of guilty is not intelligent and voluntary, citing Boykin v. Alabama (1969) 395 U.S. 238 [ 23…