The Criminal Docket


February 2006     

Volume 1, Number 2

“Misdemeanor DUI arrests for driving occurring outside of the officer’s presence”

Presence Requirement: Penal Code section 836(a)(1) allows an officer to make an arrest without a warrant when the officer has probable cause to believe that the individual has committed an offense in the officer’s presence.  “Probable cause” has been defined as information that would cause a reasonable and prudent person to honestly believe, and have a strong suspicion that, an individual committed an offense.  (People v. Guidry (1968) 262 Cal App 2nd 495)   Vehicle Code section 40300.5 provides an exception to this requirement.  Section 40300.5(a)-(e) authorizes an officer to arrest someone when the officer has reasonable cause to believe that the person has been driving while under the influence of alcohol or drugs when the person is involved in a traffic accident, or the person is observed near a vehicle that is obstructing a roadway, or the person will not be apprehended unless immediately arrested, or the person may cause injury to himself or damage property unless immediately arrested, or the person may destroy or conceal evidence of the crime unless immediately arrested. The metabolic destruction of alcohol or drugs through the passage of time constitutes the destruction of evidence. (People v. Schofield (2001) 90 Cal App 4th 968)
There are cases, however, that hold that if the officer has probable cause to believe the defendant had driven the vehicle, the officer does not need to observe the driving in his presence.  In People v. Trapane (1991) 1 Cal App 4th Supp 10 and People v. Donaldson (1995) 36 Cal App 4th 532,  the courts held that there is no federal constitutional requirement that a misdemeanor must be committed in the officer’s presence to justify a warrantless arrest.  It held that California Constitution Article 1, Section 28(d) does not allow evidence to be suppressed unless there was a federal violation.  The officer must still have reasonable cause to believe an offense occurred in the officer’s presence.
The presence requirement is not applicable when an officer takes a juvenile into custody.  Welfare and Institutions Code section 625(a) provides that a peace officer may take a juvenile into temporary custody without a warrant when the officer has reasonable cause to believe that the minor is one who is covered by Welfare and Institutions Code section 602; i.e., the juvenile committed a crime and comes within the jurisdiction of the juvenile court.  In re Samuel V. (1990) 225 Cal App 3rd 511 upheld this statute and stated that juveniles and adults are not similarly situated, and there is no violation of the juvenile’s equal protection rights.
Driving:    A “driver,” defined in Vehicle Code section 305, is a person who drives or is in actual physical control of a vehicle. Courts are often faced with the challenge of determining whether an individual was “driving” a motor vehicle.  In People v. Jordan (1977) an individual was observed pedaling her moped down a roadway; the engine was operable but turned off.  She was later found by a passing citizen sitting on the curb, smelling of alcohol, with the moped lying in the road.  This constituted driving.  Villalobos v. Zolin (1995) 35 Cal App 4th 556 upheld the arrest even though the officer did not see the defendant driving.  The officer did, however, see the defendant’s vehicle stopped and obstructing a highway, with the additional facts that the engine was running and the defendant appeared to be intoxicated.  In Music v. Department of Motor Vehicles (1990) 221 Cal App 3rd 841, the defendant was not “driving” in the officer’s presence when the defendant’s truck was parked in a parking stall in front of a bar, and he was sitting behind the wheel of his truck, slumped over the steering wheel.

Arrest:   Penal Code section 839 states that any person who makes an arrest may orally summons another to assist him or her.  In Freeman v. Department of Motor Vehicles (1969) 70 Cal 2nd 235, a deputy sheriff stopped the defendant for driving under the influence of alcohol and later turned over the defendant to a police officer who did not observe the initial driving.  The appellate court held that Section 839 allowed the deputy sheriff to summons the police officer to make the arrest.  Further, the arrest actually occurred when the deputy stopped the defendant and continued through the transfer of custody to the police officer.  The deputy’s observation of the defendant driving was sufficient compliance with section 836.  Packer v. Sillas (1976) 57 Cal App 3rd 206 upheld the arrest of a defendant whose driving was observed by police cadets who pursued and stopped the defendant, and Padilla v. Meese (1986) 184 Cal App 3rd 1022 upheld the arrest of an individual driving erratically by a private citizen and an inspector for the Department of Food and Agriculture.  The arrest, concluded Padilla, constituted a “continuous transaction” involving a citizen’s arrest along with a delegation of the physical arrest to a police officer.  There may be a delay between the accident and the arrest–a defendant’s arrest for driving under the influence was upheld even though she was arrested two hours after she was involved in a traffic accident. (Corrigan v. Zolin (1996) 47 Cal App 4th 230)

Accident:  An “accident” does not necessarily involve physical injury or property damage.  For example, in Cowman v. Department of Motor Vehicles (1978) 86 Cal App 3rd 851 the court found that the defendant was involved in an accident when his vehicle drove off of a highway and down an embankment.  A “traffic accident” can also apply to intentional acts.  In McNabb v. Department of Motor Vehicles (1993) 20 Cal App 4th 832 the defendant intentionally drove his car so as to move two other vehicles.  The term “accident” was applicable in this situation since it applied to an intentional act that was not expected by the person to whom the act occurred.  An accident on a public access road constitutes driving “upon a highway.” (People v. Ashley (1971) 17 Cal App 3rd 1122)

License Suspension:   If the arrest is not valid, then the results of the defendant’s breath test will not be admissible.  (People v. Engleman (1981) 116 Cal App 3rd Supp 14)  The California Supreme Court, interpreting the “Implied Consent Statute” (Vehicle Code section 13353) has held that if an officer does not observe volitional movement of a vehicle then the individual was not lawfully arrested.  If he was not lawfully arrested, then he was not subject to revocation of his driving privilege for refusing to submit to a chemical test. (Mercer v. Department of Motor Vehicles (1991) 53 Cal 3rd 753)

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