Fearn

Fearn v. Zolin

Good Law

12 Cal. Rptr. 2d 314·1992 Cal. App. LEXIS 1183·9 Cal. App. 4th 1756·92 Daily Journal DAR 13564·92 Cal. Daily Op. Serv. 8303

Court of Appeal of CaliforniaOctober 2, 1992F016733California1,959 words

Opinion

Best, J.

This case presents the issue whether there is a conflict between the administrative per se laws mandating suspension of driving privileges of second offenders (Veh. Code, §§ 13353.2 and 13353.3, subd. (b)(2)) and preexisting second-offender probation statutes providing for a restricted driver’s license (§§ 23165, 23166, subd. (b), 13352, subd. (a)(3), and 13352.5, subd. (a)). Contending there is a conflict, respondent Gary Fearn petitioned the superior court for a writ of mandate to set aside an order of the Department of Motor Vehicles (DMV) suspending his driving privileges. The petition was granted. The DMV appeals from the superior court judgment granting the petition. We reverse in part and affirm in part.

Actual and Procedural History

Fearn was arrested for driving under the influence of alcohol in violation of section 23152 on November 8, 1990. His intoxilizer breath test results showed a blood-alcohol concentration (BAG) of .11 percent. Pursuant to sections 13353.2, subdivision (a) and 13353.3, subdivision (b)(2), the DMV suspended his driver’s license for one year effective December 23, 1990, for driving with a BAG greater than .08 percent and because he had a…

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