Vary

The Department of Motor Vehicles (Department) appeals the issuance of a writ of mandate ordering the reinstatement, after revocation *1508 pursuant to Vehicle Code 1 section 13352, subdivision (a)(5), of the driving privileges of Charles Vary. The Department contends the issuance of the writ was barred by the statute of limitations, the petition was not properly verified and the trial court erred in deciding that the Department was collaterally estopped from asserting the propriety of the revocation. No brief has been filed by Vary. We nonetheless address the issues. We conclude the trial court was incorrect in ruling that the Department was barred by the doctrine of collateral estoppel from arguing the lawfulness of the license revocation. We further conclude the license was properly revoked by the Department. Because we reverse the decision below, we take no position on the additional issues raised.

I

Procedural History

Within a five-year period, Vary suffered three convictions for driving under the influence of alcohol. The first violation, charged under former section 23102, subdivision (a) (now § 23152, subd. (a)), occurred on December 22, 1980, and resulted in…

I concur with the majority opinion that the court erred in finding the Department of Motor Vehicles (Department) to be collaterally estopped by the prior municipal court proceedings in which Vary’s sentence was modified. I believe, however, the lead opinion is overly complex.

First, to the extent the majority implies there is disagreement in the case precedent as to whether the Department and district attorney were in privity as that issue relates to the facts in this case, I suggest the implication is unwarranted. Those cases finding privity between those parties are confined to legal issues, i.e., related to lawfulness of arrests and similar concerns, which were actually litigated. In those cases the issue is one in which the criminal law enforcement concerns of the State of California are represented in court by the district attorney. Although those cases (cited in the majority opinion) finding privity rely on the fact that both the district attorney and the Department represent the State of California, the plain fact is the judicial adjudication that an arrest is unlawful eliminates a latter contrary finding by the Department in an administrative proceeding. The Department is…

The Department of Motor Vehicles (Department) appeals the issuance of a writ of mandate ordering the reinstatement, after revocation pursuant to Vehicle Code [1] section 13352, subdivision (a)(5), of the driving privileges of Charles Vary. The Department contends the issuance of the writ was barred by the statute of limitations, the petition was not properly verified and the trial court erred in deciding that the Department was collaterally estopped from asserting the propriety of the revocation. No brief has been filed by Vary. We nonetheless address the issues. We conclude the trial court was incorrect in ruling that the Department was barred by the doctrine of collateral estoppel from arguing the lawfulness of the license revocation. We further conclude the license was properly revoked by the Department. Because we reverse the decision below, we take no position on the additional issues raised.

Within a five-year period, Vary suffered three convictions for driving under the influence of alcohol. The first violation, charged under former section 23102, subdivision (a) (now § 23152, subd. (a)), occurred on December 22, 1980, and resulted in conviction on…