Though not expressly stated in VC Ё13353(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 搇awfully?arrested.
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(See, VC ?3612(a); Mercer v. DMV (1991) 53 C3d 753, 280 CR 745; Gikas v. Zolin (1993) 6 C4th 841, 25 CR2d 500; and Lake v. Reed (1997) 16 C4th 448, 65 CR2d 860.)
A. What Constitutes an Arrest?
An officer抯 use of 搈agic words?is not the sole basis for determining whether an arrest has occurred梩he 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 ?36
Application of PC ?36 to drunk driving cases nearly always involves a question of whether or not the defendant抯 activities witnessed by the arresting officer (or other appropriate person) amounted to the act of 揹riving?as it is defined for these purposes.
As for what acts constitute 揹riving,?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 揹riving,?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抰 observed moving, i.e., rolling, then it isn抰 being driven. Sister state statutes generally prohibit 揹riving?or 搊perating?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 揹riving?only statute, and as Mercer points out, this requires actual movement of the vehicle.
C. Circumstantial Evidence of Driving桝rrest Illegal
Arrest Illegal: The continuing validity of several presence-by-circumstantial-evidence decisions is in doubt in light of the Supreme Court抯 decision in Mercer, wherein the court said:
Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest super mario run hack is permissible only if a public offense occurs in the arresting officer抯 損resence,?and because the officer in this case did not see Mercer抯 vehicle move, we conclude Mercer was not 搇awfully 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 揹runk driving?under ?3152. 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. ?36, 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抯 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 ?37, 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, ?39 of the Penal Code provides: 揂ny 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 揾it-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 揾it-run?violation. In discussing the effect of the police officer抯 assuming custody of the defendant after his detention by the citizen, the Court of Appeal stated: 揂n 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 搕ransient 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 traffic racer hack tool online 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抯 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抯 arrest or detain the offender until the police arrived or, as occurred in the present case, that another officer had witnessed the
offender抯 actions and 搒topped?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 diep io cheats online legal citizen抯 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抯 drunk driving arrest was found legal even though the citizen hadn抰 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 揳 public offense committed or attempted in his presence?(Pen. C. ?37). The term 損ublic offense?
includes misdemeanors (Pen. C. Ё15 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. ?39). Although there was evidence that Greenwood himself took defendant into custody, Greenwood also had the right to delegate 搕he 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. ?41; 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抰 Create Presence
Although there is no admission here, the defendant抯 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 搒ubjective failure?of the field sobriety tests. Hence, the 揹riving in the presence?requirement cannot have been accomplished here as is specifically and statutorily required by PC ?36. Conversely, however, is the fact that a respondent抯 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 ?0300.5(a)).
F. No Vehicle Code Exception To Officer抯 Presence Is Applicable
The only exceptions to the 損resence?requirement under PC ?36 for a DUI arrest are found in VC ?0300.5, of which none are applicable to the case at bar. VC ?0300.5 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 ?0300.5(e) created an exception to the presence requirement of PC ?36, 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.]