People v. Ashley

• Decision Date: 04 June 1971
• Docket Number: Cr. 19719
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Walter Junior ASHLEY, Defendant and Appellant.

Page 509

95 Cal.Rptr. 509

17 Cal.App.3d 1122

The PEOPLE, Plaintiff and Respondent, v. Walter Junior ASHLEY, Defendant and Appellant.

Cr. 19719.

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

June 4, 1971.

Richard S. Buckley, Public Defender, Russell F. Maginnis, James L. McCormick, Floyd W. Davis, Deputy Public Defenders, for defendant and appellant.

Roger Arnebergh, City Atty., Madeleine Flier, Deputy City, Atty., for plaintiff and respondent.

THE COURT.

This appeal from an order of the Municipal Court of the Los Angeles Judicial District of Los Angeles County has been transferred to this court pursuant to rule 63, California Rules of Court, because it appears necessary to settle a new and important question of law.

Appellant was charged with driving a motor vehicle under the influence of intoxicating liquor and drugs, in violation of Penal Code section 367d, a misdemeanor. He moved to suppress as evidence a blood sample taken while he was unconscious following his arrest. The motion was denied, after which he took this appeal under the authority of subdivision (j) of Penal Code section 1538.5.

For the purpose of this appeal we assume that the blood sample was not admissible if the arrest was illegal. The sole issue argued by counsel is the legality of the arrest. Upon our examination of the record and the law we are satisfied that the Appellate Department of the Superior Court correctly decided that issue. The language which follows, and which we adopt, is taken verbatim from the opinion prepared for that court by Judge Delbert E. Wong and concurred in by Presiding Judge James G. Whyte and Judge Beach Vasey:

Following an automobile accident on a private access road, appellant was arrested by a police officer for violation of Penal Code section 367d, a misdemeanor. ¹ The arresting officer did not have a warrant of arrest, and did not observe appellant driving a vehicle. The arrest was made upon the basis of the observations of the officer sometime after the accident, and his conversations with appellant and the driver of the other vehicle. It is undisputed that such observations and conversations constituted reasonable cause to believe that appellant at the time of the accident had been driving his vehicle while under the influence of intoxicating liquor. Such acts, however, did not occur In the presence of the officer.

Ordinarily, to justify a misdemeanor arrest by an officer without a warrant, the officer must have reasonable cause to believe that the person to be arrested has committed a public offense In his presence (Penal Code sec. 836(1); People v. Garrison (1961) 189 Cal.App.2d 549, 556, 11 Cal.Rptr. 398). ²

In 1969, the Legislature, however, created an exception for certain misdemeanor drunk driving arrests by enacting Vehicle Code Section 40300.5, which reads:

'Notwithstanding any other provision of law a peace officer may, without a warrant arrest a person involved in a traffic accident when the officer has reasonable cause to believe that such person had been driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug.'

There are two misdemeanor drunk driving statutes, Vehicle Code section 23102, which applies only when the offender drives 'upon any highway,' ³ and Penal Code section 367d, which contains no such limitation. Did the Legislature intend to make the new statute applicable to arrests under both misdemeanor drunk driving statutes, or only to arrests under Vehicle Code section 23102, as appellant contends?

At the outset it must be noted that although appellant was arrested for a Penal Code violation, that fact alone does not preclude the application of the new arrest statute which was added to the Vehicle Code. It is a well settled rule of statutory construction that the separation of the various statutes into codes is for convenience only, and the codes are to be read together and regarded as blending into each other thereby forming but a single statute. (In re Porterfield (1946) 28 Cal.2d 91, 100, 168 P.2d 706; Federal Employees Distributing Company v. Franchise Tax Board (1968) 260 Cal.App.2d 937, 946, 67 Cal.Rptr. 696.)

The obvious intent of the Legislature in enacting Section 40300.5 was to eliminate in misdemeanor drunk driving cases the troublesome requirement that a police officer can make an arrest only if he has reasonable cause to believe that the person to be arrested had committed the offense In his presence. ⁴ This legislative purpose is just as important in arrests for drunk driving on public streets and highways (Vehicle Code Section 23102) as in arrests for drunk driving elsewhere (Penal Code section 367d). Moreover, it is highly unlikely that the Legislature intended to have one law of arrest to apply to one misdemeanor drunk driving statute, and a different law of arrest to apply to the other. Such a result would only add confusion to an already difficult area of law.

It is also significant that whenever the Legislature has intended that a statute be limited to offenses which occur 'upon any highway,' it has done so expressly. (See Vehicle Code sections 23102, 23102.5, 23103, 23105, 23106.) These limiting words were conspicuously omitted from Vehicle Code section 40300.5.

Appellant contends, however, that by implication the Legislature has restricted the applicability of Vehicle Code section 40300.5 to arrests for violations which occur on highways. In support of his position, he refers to the use of the words, 'involved in a Traffic accident,' and the statutory definition of the word 'traffic.' Vehicle Code section 620 provides: 'The term 'traffic' includes pedestrians, ridden animals, vehicles, street cars, and other conveyances, either singly or together, While using any highway for purposes of travel.' (...