Though not expressly stated in VC §§13353(c)(2) or 13557(b)(2)(B), other statutes and case authority establish that what is actually required in a DMV administrative per se hearing as a result of a California DUI arrest is proof that the person was “lawfully” arrested.
A. What Constitutes an Arrest?
An officer’s use of “magic words” is not the sole basis for determining whether an arrest has occurred—the trier of fact must look to the essential elements of custody,
Ormonde v. DMV (1981) 117 CA3d 889, 173 CR 79, and distinguish between a temporary detention and a formal arrest. (See People v. Freund (1975) 48 CA3d 49, 119 CR 762 – defendants arrested when they were placed in the back of a patrol car while police obtained a search warrant, even though officer said arrest took place after the search).
Where an arrest does take place, the timing of it is determined by looking to the essential elements of taking the arrestee into custody and actual restraint or submission to custody. (See, People v. Parker (1978) 85 CA3d 439, 443 and Green v. DMV (1977) 68 CA3d 536.)
B. Penal Code §836
Application of PC §836 to drunk driving cases nearly always involves a question of whether or not the defendant’s activities witnessed by the arresting officer (or other appropriate person) amounted to the act of “driving” as it is defined for these purposes.
As for what acts constitute “driving,” the California Supreme Court cleared up a lot of confusion with the decision in Mercer v. DMV (1991) 53 C3d 753, 280 CR 745, holding that proof of “driving,” in the presence of the arresting officer, requires proof that the arresting officer witnessed volitional movement of the vehicle by the defendant. Thus, the Supreme Court held that if the vehicle isn’t observed moving, i.e., rolling, then it isn’t being driven. Sister state statutes generally prohibit “driving” or “operating” a motor vehicle while under the influence of alcohol, and some prohibit both (e.g., Florida). In order to operate a motor vehicle one does not have to actually move the car. California, however, has a “driving” only statute, and as Mercer points out, this requires actual movement of the vehicle.
C. Circumstantial Evidence of Driving—Arrest Illegal
Arrest Illegal: The continuing validity of several presence-by-circumstantial-evidence decisions is in doubt in light of the Supreme Court’s decision in Mercer, wherein the court said:
Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest is permissible only if a public offense occurs in the arresting officer’s “presence,” and because the officer in this case did not see Mercer’s vehicle move, we conclude Mercer was not “lawfully arrested” for a violation of section 23152(a) and thus cannot be subjected to the license revocation provisions of sections 23157 and 13353 as presently written.
In Mercer v. DMV (1991) 53 C3d 753, 280 CR 745, the court said:
We emphasize at the outset the narrow scope of our inquiry and holding. We do not hold that observed movement of a vehicle is necessary to support a conviction for “drunk driving” under §23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle. [Citation.] Nothing in this opinion calls in question the holdings of these cases.
Presumably, this situation (no presence at offense but charges filed anyway) might come about where no one was present for the offense and the respondent was arrested later on a warrant.
D. Cops and Private Citizens
Freeman v. DMV (1969) 70 C2d 235, 74 CR 259, also made it clear that a misdemeanor arrest is legal under PC. §836, so long as the offense occurred in the presence of someone, even a private citizen, and so long as that person either makes a citizen’s arrest, or tries to, or detains the offender until police arrive. The private citizen has to do more than just call the police and hang around to tell them what happened. The Freeman Court said, at page 238:
In People v. Sjosten, 262 CA2d 539, 68 CR 832 (Cal. App. 1st Dist. 1968), rev. den., a citizen observed the defendant prowling in the night time and called the police, who thereupon arrested the defendant. After holding that the citizen had the right to make an arrest under §837, subdivision 1, of the Penal Code, [footnote quoting language of section] the Court held that the arrest made by the officer was valid, stating at page 544:
As to the delegation of her authority to another person, §839 of the Penal Code provides: “Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.” This statute impliedly authorizes the delegation of the physical act of taking an offender into custody.
In People v. Harris, (1967) 256 CA2d 455, 63 CR 849, a citizen, who had observed the defendant commit a misdemeanor “hit-run” violation, pursued the defendant and detained him while another person went for the police. After the defendant was delivered to a police officer, the latter informed him that he was under arrest for the “hit-run” violation. In discussing the effect of the police officer’s assuming custody of the defendant after his detention by the citizen, the Court of Appeal stated: “An arrest is more than a transient momentary incident. It continues through a transfer of custody of the accused from a citizen to a peace officer.” (Harris, at p. 459-460.)
Similarly, the arrest made by CHP officer __________ in this case was a “transient momentary incident,” which, evidently, had its beginning in the action taken by the officer when he received some dispatch call regarding a certain driver. In other words, the initial detention and subsequent arrest by officer ___________ was based upon nothing other than some dispatch call to the officer.
Likewise, in People v. Walker, 203 CA2d 552, 21 CR 692, the arresting officer gave the defendant some sobriety tests and concluded he was under the influence of alcohol. The officer had not seen the defendant commit the alleged offense of drunk driving, and the arrest was therefore determined to be unlawful. Other persons at the scene told the officer that the defendant’s car had been weaving from one side of the road to the other before it collided with a parked car and came to a stop; but it does not appear that anyone had sought to make a citizen’s arrest or detain the offender until the police arrived or, as occurred in the present case, that another officer had witnessed the offender’s actions and “stopped” him. In direct response to the holding in Freeman, police frequently have the citizen request the arrest, and do so in writing.
In Padilla v. Meese (1986) 184 CA3d 1022, 229 CR 310, an implied consent hearing case, an agricultural inspection station attendant made a legal citizen’s arrest for drunk driving in his presence. The police officer merely took the defendant into custody for him.
In Johanson v. DMV (1995) 36 CA4th 1209, 43 CR2d 42, a citizen’s drunk driving arrest was found legal even though the citizen hadn’t explicitly stated that the arrest was for drunk driving. In People v. Campbell (1972) 27 CA3d 849, 104 CR 118, the Court said:
A private person may arrest another for “a public offense committed or attempted in his presence” (Pen. C. §837). The term “public offense” includes misdemeanors (Pen. C. §§15 and 17; Burks v. U.S., 287 F.2d 117; People v. Sjosten , 262 Cal.App.2d 539, 543, 68 Cal.Rptr. 832) and the person making the arrest may summon others to aid him in the arrest (Pen. C. §839). Although there was evidence that Greenwood himself took defendant into custody, Greenwood also had the right to delegate “the physical act of taking an offender into custody” to the other persons summoned, Officer Johnson and Mr. Frazier (People v. Sjosten, supra, p. 544; People v. Wolfgang, (1923) 192 Cal. 754, 221 P. 907). Nor under the circumstances of immediate pursuit was Greenwood required to tell defendant that he was under arrest (Pen. C. §841; People v. Harris, 256 Cal.App.2d 455, 459, 63 Cal.Rptr. 849 (Cal. App. 1st Dist. 1967)). We conclude that defendant was legally arrested by Greenwood with the aid of Officers Johnson and Frazier.
E. Admission of Driving Doesn’t Create Presence
Although there is no admission here, the defendant’s admission of driving is no more relevant to whether or not the offense was committed in the presence of the arresting officer than was his alleged “subjective failure” of the field sobriety tests. Hence, the “driving in the presence” requirement cannot have been accomplished here as is specifically and statutorily required by PC §836. Conversely, however, is the fact that a respondent’s admission can establish the fact that an accident occurred, which constitutes a statutory exception to the presence requirement (See, Corrigan v. Zolin (1996) 47 CA4th 230, 54 CR2d 634 and VC §40300.5(a)).
F. No Vehicle Code Exception To Officer’s Presence Is Applicable
The only exceptions to the “presence” requirement under PC §836 for a DUI arrest are found in VC §40300.5, of which none are applicable to the case at bar. VC §40300.5 states as follows:
40300.5. In addition to the authority to make an arrest without a
warrant pursuant to paragraph (1) of subdivision (a) of Section 836
of the Penal Code, a peace officer may, without a warrant, arrest a
person when the officer has reasonable cause to believe that the
person had been driving while under the influence of an alcoholic
beverage or any drug, or under the combined influence of an alcoholic
beverage and any drug when any of the following exists:
(a) The person is involved in a traffic accident.
(b) The person is observed in or about a vehicle that is obstructing a roadway.
(c) The person will not be apprehended unless immediately arrested.
(d) The person may cause injury to himself or herself or damage property unless immediately arrested.
(e) The person may destroy or conceal evidence of the crime unless immediately arrested.
Thus, for example, where a peace officer (having probable cause) could arrest a person for misdemeanor driving under the influence of alcohol or drugs not committed in the officer's presence where evidence could be destroyed unless the person was immediately arrested, VC §40300.5(e) created an exception to the presence requirement of PC §836, because evidence could be destroyed by the simple passage of time unless the person was immediately arrested. However, this did not authorize a peace officer to forcibly enter a residence to effect such an arrest. [See, People v. Schofield (2001) 90 CA4th 968, 109 CR2d 429.]
