Padilla v. Meese

• Decision Date: 25 August 1986
• Citation: 229 Cal.Rptr. 310,184 Cal.App.3d 1022
• Court: California Court of Appeals Court of Appeals
• Parties: Gerald James PADILLA, Plaintiff and Appellant, v. George E. MEESE, Director of Department of Motor Vehicles, Defendant and Respondent. Civ. 24925.

Page 310

229 Cal.Rptr. 310

184 Cal.App.3d 1022

Gerald James PADILLA, Plaintiff and Appellant, v. George E. MEESE, Director of Department of Motor Vehicles, Defendant and Respondent.

Civ. 24925.

Court of Appeal, Third District, California.

Aug. 25, 1986.

Certified for Partial Publication ^*

Review Denied Nov. 25, 1986.

William Cole, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Charles C. Kobayashi, Supervising Deputy Atty. Gen., and Marybelle D. Archibald, Deputy Atty. Gen., for defendant and respondent.

SPARKS, Associate Justice.

In this case we first consider whether, for purposes of a misdemeanor arrest for drunk driving, a vehicle must be moved in the presence of the arresting officer in order for the offense to occur in his presence. We hold that the vehicle must be moved. We next consider whether the preventative actions taken by a state inspector at an agricultural inspection station against a drunk driver constituted a lawful citizen's arrest. We hold that the inspector's actions constituted a valid arrest even though he was confused about the technical requirements of a citizen's arrest.

After an administrative hearing the Department of Motor Vehicles rendered a decision suspending the driving privilege of appellant Gerald James Padilla pursuant to the implied consent law. (Veh. Code, § 13353.) The suspension followed appellant's refusal to submit to a chemical test to determine his blood alcohol level after an arrest for driving while under the influence of alcohol. (Veh. Code, § 23152.) Plaintiff unsuccessfully sought a writ of administrative mandate in the Superior Court of El Dorado County. He appeals from a judgment denying his petition contending that the department erred in denying his request for a continuance of the administrative hearing. He further contends that he was not lawfully arrested and therefore his license may not be suspended. For the reasons which follow, we reject these contentions and shall affirm the judgment.

FACTS

The facts necessary for consideration of the issues on appeal are relatively straightforward. Mitch Miller is an inspector for the Department of Food and Agriculture. On New Year's morning, January 1, 1984, he was working at the Meyers Inspection Station near South Lake Tahoe when a citizen drove in and complained of the erratic driving of a person in a white Chevrolet pickup truck. The citizen reported that the truck had turned onto a side street, to which he pointed. Two or three minutes later Miller observed plaintiff drive his white Chevrolet pickup truck off the sidestreet and into the inspection station. Plaintiff stopped and told Miller, "I'm no California," or "I'm not a Californian." Miller could smell the odor of alcohol on plaintiff's breath and noted that his speech was slurred. He believed that plaintiff had been drinking too much.

The question of the validity of plaintiff's arrest arises because Miller appeared confused about the legal definition of a citizen's arrest. He testified that he had been advised by California Highway Patrol personnel that if he wanted to make an arrest of a drunk driver at the inspection station it would have to be a citizen's arrest. He had been instructed by the Patrol that he should simply instruct the person to park or if that was not possible to write down the license number and report it. He understood that his authority as a peace officer only extended to enforcement of the food and agriculture laws, and he believed he was acting as a private citizen in taking the actions in this case. But he also testified that it is not his procedure to make a citizen's arrest, and that he did not intend to arrest plaintiff. Nevertheless, he informed plaintiff that he believed he had been drinking too much and told him to pull over and park. Plaintiff complied.

Approximately two minutes later Officer Nagel, of the California Highway Patrol, arrived on the scene in response to Miller's call. He went to the pickup where he observed plaintiff sitting in the driver's seat with the engine running. Nagel formed the opinion that plaintiff was intoxicated, and that opinion was amply supported by the evidence. Based upon information received from Miller, and his observation that plaintiff was the sole occupant and was sitting behind the wheel of the vehicle with the engine running, Nagel placed him under arrest. Thereafter plaintiff was advised of the requirement that he submit to a chemical test to determine his blood alcohol level and he refused to submit to such a test. Plaintiff's driving privilege was suspended based upon that refusal.

DISCUSSION

I ^**

II

Plaintiff contends that his arrest was unlawful and as a consequence his suspension cannot stand. At an implied consent hearing there are four issues tendered: (1) whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Vehicle Code section 23152 or 23153 (colloquially referred to as drunk driving); (2) whether the person was placed under arrest; (3) whether the person refused to submit to or did not complete a chemical test; and (4) whether the person had been told that his or her driving privilege would be suspended upon a failure or refusal to submit to or complete the test. (Veh. Code, § 13353, subd. (c)(1) now subd. (b).) There was ample evidence to support the department's findings with respect to issues (1), (3) and (4). Officer Nagel's personal observations of plaintiff reasonably led him to suspect plaintiff was intoxicated. The fact that plaintiff was alone and behind the wheel of the truck with the engine running at an isolated location, together with Miller's report to the officer, supported the reasonable belief that plaintiff had driven in his intoxicated condition. (People v. Hanggi (1968) 265 Cal.App.2d Supp. 969, 972, 70 Cal.Rptr. 540; see also People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9, 222 Cal.Rptr. 540.) Nagel testified that he advised plaintiff of the requirement that he submit to a test and that he would have his driving privilege suspended for failure to do so. Plaintiff does not contend that the evidence does not support these findings. Instead, his sole claim is that he was not lawfully arrested. Since a driver's license cannot be suspended under the implied consent law if the arrest was unlawful (Buttimer v. Alexis, 146 Cal.App.3d 754, at p. 758, 194 Cal.Rptr. 603), we turn to that contention.

Plaintiff's contention that his arrest was unlawful has two aspects. He first asserts that his detention by Miller was illegal because as an agricultural inspector Miller's authority does not extend to enforcement of traffic laws. He next claims that Officer Nagel could not properly arrest him because he did not commit the offense in the officer's presence. The arguments, and their resolution, are interrelated.

We first agree that, viewed in isolation, Officer Nagel had no authority to arrest plaintiff. Plaintiff's offense was a misdemeanor. (Veh. Code, § 23152.) A peace officer may make a warrantless arrest for a misdemeanor whenever "he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence." (Pen. Code, § 836.) Vehicle Code section 23152, subdivision (a) provides that it is a misdemeanor offense "for any person who is under the influence of an alcoholic beverage ... to drive a vehicle." As the court noted in Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 214 Cal.Rptr. 249, "an essential element of this offense is the act of driving an automobile. Accordingly, an arrest for misdemeanor drunk driving is unlawful unless the officer was present when such driving occurred." (Id., at p. 451, 214 Cal.Rptr. 249, citations omitted.) There is no question Officer Nagel had reasonable cause to believe this offense had been committed. The issue is whether he was present during its commission. The requirement that the crime be committed in the officer's presence is construed liberally: it is sufficient if the acts became known to the officer through his sensory perceptions. (Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 725, 89 Cal.Rptr. 893.) "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 saidthat 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 citation omitted; emphasis in original.) 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 for misdemeanor drunk driving it is necessary that the officer be present at the scene where the driving occurred so that he can perceive it. (Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d at p. 451, 214 Cal.Rptr. 249.)

This poses the question of what constitutes driving within the meaning of the statute. Although the term "drive" is not defined in the Vehicle Code, most courts construing similar statutes have held that the term "requires that the vehicle be in motion in order for the offense of drunk driving to be committed." (Annot., What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance (1979) 93 A.L.R.3d 7, 15.) Thus, in People v. Jordan (1977) 75 Cal.App.3d Supp. 1, 7-8, 142 Cal.Rptr. 401, the court held that the term "drive" means to steer or control a vehicle in motion. The court left open the question whether the statute would be violated "if an intoxicated person is found behind the steering wheel, the...