Music v. Department of Motor Vehicles

• Decision Date: 26 June 1990
• Docket Number: No. A047791,A047791
• Citation: 221 Cal.App.3d 841,270 Cal.Rptr. 692
• Court: California Court of Appeals Court of Appeals
• Parties: Gary William MUSIC, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

Page 692

270 Cal.Rptr. 692

221 Cal.App.3d 841

Gary William MUSIC, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

No. A047791.

Court of Appeal, First District, Division 4, California.

June 26, 1990.

As Modified July 3, 1990.

Les Scher, Garberville, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., N. Eugene Hill, Sr. Asst. Atty. Gen., Jose Guerrero, Supervising Deputy Atty. Gen., Mara Faust, Deputy Atty. Gen., Oakland, for defendant and respondent.

POCHE, Associate Justice.

Appellant Gary William Music appeals from a judgment ¹ denying his petition for writ of mandate ² seeking to overturn on order of respondent, Department of Motor Vehicles, suspending his driver's license for six months for failing to submit to a chemical test when requested to do so by a police officer. (Veh.Code, §§ 13353, subd. (a); 23157.) ³ The controlling issue on appeal is whether appellant was validly arrested for driving under the influence in that the arresting officer did not actually witness an act of driving a motor vehicle. We hold that under such circumstances, a warrantless arrest is invalid. Because a valid arrest is a condition precedent under the implied consent law for suspending a driving privilege (§ 13353, subd. (b); Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1026, 229 Cal.Rptr. 310), we reverse.

A. THE EVIDENCE

At approximately 1:40 a.m., on a cold and rainy November 8, 1988, California Highway Patrol Officer Kevin James O'Connor spotted appellant's truck parked in a parking stall in front of the Blue Room Bar on the northbound shoulder of Redwood Drive in Garberville. ⁴ The engine was running, exhaust was coming out of the exhaust pipe, the yellow parking lights were on, as was the radio, and the window was halfway open, and appellant was "slumped" over the steering wheel. Over the course of the next hour, O'Connor passed by the truck two more times; each time the truck and appellant were in the same condition. "Concerned," O'Connor decided to check on the driver.

O'Connor woke appellant; his eyes were red and glassy, his speech was slow and slurred, there was a strong odor of alcohol on his breath and he appeared confused. Appellant told O'Connor he had been drinking whiskey and "coke" and decided to sleep in the truck "until he was okay to drive home." Appellant claimed to be following a normal practice.

O'Connor asked appellant to turn off the engine. According to O'Connor, appellant was disoriented and "fumbled around trying to grab and find the keys and turn it off and instead of doing that he reached and started messing with the gear shift." Afraid appellant might put the truck into reverse and roll into his patrol car parked immediately behind the truck, O'Connor reached in and turned off the engine. Appellant was asked to leave the truck, was given and failed a number of field sobriety tests, and was placed under arrest. At the police station, and after being advised of the consequences for doing so, appellant refused to submit to one of the three chemical tests.

Appellant testified he drove his truck to town in the early afternoon, parked in front of the Blue Room (which was closed), and drank with friends in Garberville's other two bars. He walked back to the truck, and slept for "several hours" before he was arrested. Because it was raining, he turned on the engine so the heater would run. Appellant admitted being intoxicated but denied being slumped over the steering wheel: "I was laying in [sic ] the seat of the truck."

On cross, Officer O'Connor admitted that at no time did he see appellant actually drive the truck down the street. The following colloquy with appellant's trial attorney is instructive:

"[Counsel]: So he told you in essence that ... he had come out of the Blue Room and fallen asleep in the truck.

"OFFICER O'CONNOR: Yes.

"[Counsel]: So then you did not have reason to believe that he was driving the truck.

"OFFICER O'CONNOR: Correct.

"[Counsel]: And yet you placed him under arrest for driving under the influence?

"OFFICER O'CONNOR: Yes.

"...

"[Counsel]: Did Mr. Music ask you any questions as to why you were making him do this when in fact he was not driving the vehicle but sleeping?

"OFFICER O'CONNOR: As I recall he did. He was concerned with that and I told him that his vehicle was in the road, his vehicle was running, the lights were on and I was concerned about especially his statement of well I do this all the time, I sleep in the car until I feel I'm okay to drive home.

"[Counsel]: Was it reasonable to believe that he had the truck running so the heat would be on?

"OFFICER O'CONNOR: I'm sure it was.

"[Counsel]: Especially since the window was down, you seem to think it was crazy that the window was down because it was raining.

"OFFICER O'CONNOR: Yes.

"[Counsel]: Okay. Did ... he actually tell you that he had not been driving the vehicle?

"OFFICER O'CONNOR: I don't recall, I'm sure he did though.

"...

"[Counsel]: Okay so you never saw him driving and you just said that you really didn't have a reasonable belief that he was driving and I'm having trouble understanding under those circumstances why you told him he had to take either a field sobriety test or one of the tests under the [Vehicle Code] ... when he hadn't been driving a vehicle.

"OFFICER O'CONNOR: Okay well mainly ... if a person is in or about their vehicle and he's in control of that vehicle and the vehicle is running and the vehicle is in the road, on the roadway, he is in control of the vehicle and there again what concerned me at that point was his own statement of his determination of when he would be okay to drive and as I talked to him, he was reaching and trying to get the gearshift in gear. At that point, his apparent intoxication, I was concerned that he would continue and go out on the road.

"[Counsel]: So you were taking more of a preventative measure is what you're saying.

"OFFICER O'CONNOR: Well the preventative--yes it was preventative in one point but at the same time he is on the road and in control of his own vehicle, the vehicle is running, it's on the road and there's a lot of support there and I can't sit here and give you a particular case but I'm sure I can research it and dig that up."

B.

In affirming the license revocation, the hearing officer made the four findings required by section 13353, subdivision (b): ⁵ (1) Officer O'Connor had reasonable cause to believe that appellant had been driving a motor vehicle in violation of sections 23152 or 23153 (driving under the influence of intoxicating liquor or drugs); (2) appellant was lawfully arrested; (3) appellant was advised that if he refused to submit to a chemical test his driving privileges would be suspended for six months; and (4) appellant refused to submit to a chemical test. With respect to the driving aspect, the hearing officer was impressed with the fact that appellant "attempted to shift gears and have the car move while the motor was running."

Exercising its independent judgment (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 395, 188 Cal.Rptr. 891, 657 P.2d 383; Daly v. Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 261, 232 Cal.Rptr. 7; Hughes v. Alexis, supra, 170 Cal.App.3d at p. 806, 216 Cal.Rptr. 550), the superior court affirmed the revocation and remarked: "The facts could be interpreted to support one, [of two], conclusions: [p] 1. The vehicle was parked, for one hour, with the lights on, engine running, heater on and the defendant slumped over the wheel. The vehicle could be interpreted to not have moved from where Mr. Music parked it earlier in the day in accordance with his testimony; or [p] 2. The vehicle was parked, in the conditioned [sic] listed above, after having been moved or driven by Mr. Music contrary to his testimony. [p] The Hearing Officer found the second version to be the most likely explanation. This court agrees."

C.

An essential prerequisite for the application of the implied consent law is a lawful arrest for driving under the influence. (§ 13353, subd. (b); see e.g., Mueller v. Department of Motor Vehicles (1985) 163 Cal.App.3d 681, 684, 210 Cal.Rptr. 14; Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 451, 214 Cal.Rptr. 249; Buttimer v. Alexis (1983) 146 Cal.App.3d 754, 758, 194 Cal.Rptr. 603.) Stated another way, a driver's license cannot be suspended under the implied consent law if the arrest is unlawful. (Padilla v. Meese, supra, 184 Cal.App.3d at p. 1026, 229 Cal.Rptr. 310.)

In order to make a warrantless arrest for a misdemeanor the arresting officer must have reasonable cause to believe that the person committed the offense in his presence. (Pen.Code, § 836, subd. 1.) ⁶ An arrest for misdemeanor drunk driving, therefore, is invalid unless the police officer witnesses or perceives the act of driving under the influence. (Padilla v. Meese, supra, 184 Cal.App.3d at p. 1026, 229 Cal.Rptr. 310; Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d at p. 451, 214 Cal.Rptr. 249.) "Whether the offense is committed in the officer's presence is to be determined by the events observable to the officer at the time of the arrest. 'If the officer cannot testify, based on his or her senses, to acts which constitute every material element of the misdemeanor, it cannot be said that the officer has reasonable cause to believe that the misdemeanor was committed in his presence.' " (People v. Welsch (1984) 151 Cal.App.3d 1038, 1042, 199 Cal.Rptr. 87 [emphasis in original]; accord Padilla v. Meese, supra, 184 Cal.App.3d at p. 1027, 229 Cal.Rptr. 310.) As put plainly by Justice Sparks in Padilla v. Meese: "In order to perceive the act of illegally driving a vehicle while under the influence of intoxicating liquor the officer must be able to detect the driving through one of his senses. Thus in order to make a valid arrest...