Morris

I agree the trial court properly denied Morris’s petition for a writ of mandate seeking to challenge the constitutional validity of his 1982 out-of-state prior drunk driving conviction. As the majority notes, however, the case before us is not subject to Axness's [Axness v. Superior Court (1988) 206 Cal.App.3d 1489 ( 225 Cal.Rptr. 896 )] narrow holding (see maj. opn., ante, p. 160). Because I believe Axness was correctly decided I would have preferred the majority merely distinguish it on its facts thereby avoiding superfluous dictum which unnecessarily conflicts with established precedent.

*153 Opinion

Everett W. Morris appeals a judgment denying his petition for a writ of mandate seeking an order commanding the state Department of Motor Vehicles (DMV) to annul its order made pursuant to Vehicle Code sections 13352, subdivision (a)(5), and 23170 1 revoking Morris’s driver’s license for three years for having had his third drunk driving conviction within seven years. Morris’s writ petition against DMV is based on the assertion that one of his prior drunk driving convictions, a July 28, 1982, conviction in North Carolina, was invalid because the conviction was in violation of his due process and other constitutional rights.

The trial court denied the petition on the basis it was bound by the holding of Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265 [ 109 Cal.Rptr. 104 ], a decision of the Court of Appeal, Fourth District, Division Two, which followed the Supreme Court case of Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335 [ 90 Cal.Rptr. 586 , 475 P.2d 858 ], The holdings of Cook and Thomas are that a petition for a writ of mandate against DMV to review DMV’s administrative act in performing its mandatory function of revoking the license is…