Henslee v. Department of Motor Vehicles

• Citation: 214 Cal.Rptr. 249,168 Cal.App.3d 445
• Court: California Court of Appeals
• Decision Date: 20 May 1985
• Parties: Leslie F. HENSLEE, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. A023149.

Page 249

214 Cal.Rptr. 249

168 Cal.App.3d 445

Leslie F. HENSLEE, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

A023149.

Court of Appeal, Sixth District, California.

May 20, 1985.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Harold W. Teasdale, Deputy Atty. Gen., Victor D. Sonesberg, Deputy Atty. Gen., San Francisco, for defendant and appellant.

Gerald M. Schneider, Robert L. Denebeim, Burlingame, for plaintiff and respondent.

PANELLI, Presiding Justice.

Appellant Department of Motor Vehicles (DMV) appeals from a judgment which ordered a writ of mandate to issue directing DMV to set aside its order suspending respondent Leslie Henslee's driver's license. For reasons discussed below, we reverse the judgment and direct the trial court to reinstate the suspension order.

Facts

On July 25, 1982 respondent was arrested by Officer Keith Viveiros, of the Stanford University Police Department, ¹ for violation of Vehicle Code section 23152, subdivision (a) (driving under the influence). ² Pursuant to section 13353, ³ Officer Viveiros submitted to the DMV a sworn statement alleging that respondent refused to submit to a chemical test. Based on the statement, the DMV notified respondent that her driving privileges were to be suspended. Respondent subsequently requested a formal hearing, which was held on November 15, 1982. At the hearing, testimony was taken on these issues from Officer Viveiros and respondent.

Officer Viveiros testified as follows: On July 25, 1982 at approximately 2:15 a.m. he observed respondent's vehicle, parked and facing southbound in the northbound lane of Stanford Avenue in Palo Alto. Although the vehicle was stopped, the engine was running and the headlights were on. The officer pulled behind the vehicle and noticed that respondent appeared to be asleep behind the wheel. He approached the driver's side of the vehicle, opened the door, and "shoo[k] her vigorously--hard enough to awaken someone who is simply asleep." Because he failed to awaken her, the officer then placed respondent in a twist lock which is "generally a defensive move but [it's] also used to awaken ... somebody who is intoxicated and has fallen asleep."

In response to the twist hold, respondent woke up and said something regarding a passenger. The officer noticed that her speech was slurred. He also detected a slight odor of an alcoholic beverage coming from the car. While he was kneeling next to the driver's side of the car, respondent put the transmission of the vehicle into "drive" and attempted to drive away. However, the car only traveled several "inches" before the officer was able to reach in and physically stop her from proceeding. Respondent repeated this conduct two or three more times, but on each occasion she was proceeding so slowly that the officer was able to reach in and stop the vehicle.

Officer Viveiros then physically removed respondent from the car. At that time he noted a mild odor of an alcoholic beverage was coming from her person. He further noticed that she walked in a "staggered and unstable" manner. The officer requested respondent to take field sobriety tests, but she refused to cooperate. The officer then placed appellant under arrest.

Officer Viveiros and his partner then transported respondent to the Stanford Police Department. Upon arrival, the officers requested respondent to submit to a chemical test and read her the admonition as required by section 13353. ⁴ The officers read the admonition seven or eight times and explained "in depth" the necessity to take a chemical test. Respondent, however, refused to take the test. At the time, the officer noted in his implied consent report that respondent stated: "I'm not taking any tests unless I have my lawyer there. I want to talk to my lawyer now! I'm not making any decisions until I talk to my lawyer." After respondent made these statements, the officers reread the portion of the admonition stating that she didn't have the right to have an attorney present. Respondent, however, simply repeated her previous refusal.

Respondent, on the other hand, testified that she had been sick and had "passed out" while being driven home earlier that evening. ⁵ When she awoke in response to Officer Viveiros' twist lock, she felt "very frightened" and thought she was "being attacked." She admitted, however, that she did not have a clear recollection of events subsequent to her being awakened because she had been in a "deep sleep" and felt "very groggy." When asked by the hearing officer whether she had any independent "recollection" of what she did in regard to the vehicle moving, she admitted that she did not.

Respondent confirmed that the chemical test advisement statement was read to her at the Stanford Police Station. She testified, however, that she did not submit to the test because she was "getting out of sorts with [the officers] for what I thought was not allowing me to contact my attorney which I thought I had the right to do."

Based upon the testimony presented at the administrative hearing, the DMV hearing officer made the following findings: "(1) The officer had reasonable cause to believe that LESLIE FRANCES HENSLEE had been driving a motor vehicle in violation of Section 23152 or 23153 of the Vehicle Code. [p] (2) MS. HENSLEE was lawfully arrested. [p] (3) MS. HENSLEE was told that her driving privilege would be suspended for a period of six months if she refused to submit to or failed to complete a chemical test of the alcoholic content of her blood. [p] (4) MS. HENSLEE refused to submit to or failed to complete a test of her blood, breath or urine to determine the alcoholic content of her blood when requested to do so by a peace officer." Based upon these findings, the DMV ordered respondent's driving privilege suspended for six months.

On December 30, 1982 respondent filed a petition for writ of mandate, pursuant to Code of Civil Procedure section 1094.5, seeking to reverse the DMV's order suspending her driving privileges. The matter was heard on March 15, 1983.

On April 28, 1983, the trial judge filed a memorandum of tentative decision, stating that respondent was obviously drunk and disoriented on the night of her arrest and that she did in fact refuse to submit to a chemical test. However, the judge found the arrest for driving under the influence was not warranted because respondent did not "drive" in the presence of the officer. ⁶ Based upon this finding that the arrest was unlawful, the court subsequently granted respondent's petition for writ of mandate. DMV appeals this decision.

Discussion

DMV contends the lower court erred in finding respondent's conduct did not constitute "driving" within the meaning of the drunk driving statutes. We agree with this contention and therefore find that respondent's arrest was lawful. Accordingly, we reverse the judgment below and reinstate DMV's order suspending respondent's driving privilege for six months.

The application of the implied consent law is conditioned upon a lawful arrest for driving while under the influence. (Section 13353, subd. (a)(1); People v. Superior Court (1972) 6 Cal.3d 757, 765, 100 Cal.Rptr. 281, 493 P.2d 1145; Parker v. Sillas (1976) 57 Cal.App.3d 206, 211, 128 Cal.Rptr. 907.) In order for an officer to make an arrest for a misdemeanor without a warrant he must have reasonable cause to believe the person committed the offense in his presence. ⁷ (Pen.Code, § 836, subd. (1).) Section 23152, subdivision (a) provides that it is unlawful "for any person who is under the influence of an alcoholic beverage ... to drive a vehicle." It has been recognized that an essential element of this offense is the act of driving an automobile. (People v. Walker (1962) 203 Cal.App.2d 552, 555, 21 Cal.Rptr. 692.) Accordingly, an arrest for misdemeanor drunk driving is unlawful unless the officer was present when such driving occurred. (People v. Ashley, supra, 17 Cal.App.3d 1122, 1125, 95 Cal.Rptr. 509; People v. Walker, supra, 203 Cal.App.2d at p. 555, 21 Cal.Rptr. 692.)

The sole issue on appeal is whether respondent drove in the presence of the arresting officer. Upon our examination of the record, we find the facts herein require an answer in the affirmative.

The undisputed evidence shows that the officer found respondent sleeping in the driver's seat of her vehicle with the motor running and lights on. The vehicle was parked facing the wrong direction in a traffic lane. When respondent awoke, she briefly spoke to the officer and then affirmatively placed the vehicle's transmission into drive, which caused the car to move forward several inches. Had it not been for the quick actions of Officer Viveiros, respondent would have continued her wrong way journey down Stanford Avenue where there was a great likelihood of causing serious injury to others.

The court below found that respondent's conduct was "not the type of conduct which the Vehicle Code seeks to prohibit." We refuse to read section 23152, subdivision (a) so narrowly. In our opinion the term "drive" within the meaning of this code section includes the situation where, as here, an intoxicated individual, actively asserts control over a vehicle and takes every step necessary to resume travel along the public road. Accordingly, we hold that as a matter of law respondent "drove" her vehicle in the presence of Officer Viveiros and therefore find her arrest for driving while intoxicated was lawful.

In reaching this determination we are mindful that "a statute must be read in light of both the objective it seeks to achieve and the evil it seeks to avert." (Sanchez v. Alexis (1982) 131 Cal.App.3d 709, 715, 182 Cal.Rptr. 593.) It is well established that the legislative intent underlying our drunk driving statutes is to deter the intoxicated driver and thus reduce the life threatening hazards caused by such drivers. Recognizing this necessity for strong...