Barrie Gray MERCER, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, etc., Defendant and Appellant.
Appellant Department of Motor Vehicles (DMV) appeals from the judgment ordering a writ of mandate to issue directing DMV to set aside its order revoking respondent Barrie Gray Mercer's driving privileges for three years. We reverse the judgment and direct the trial court to reinstate the revocation order.
On August 13, 1988, Culver City Police Officer Robert Brann arrested respondent for driving while under the influence of alcohol. (Veh. Code, § 23152, subd. (a).) 1 Respondent refused to submit to chemical testing. Pursuant to section 13353, the DMV notified respondent that his driving privileges were revoked for three years.2
Respondent requested a hearing under section 13353, at which Officer Brann testified to the following: In response to a radio call of “a person down, in a vehicle, on Segrell Way and Sawtelle,” Officer Brann arrived at the scene where he was “hailed down by several people in the street.” Officer Brann saw respondent alone in the car with his seat belt fastened, slumped behind the steering wheel. The car's engine was running and the headlights were on. The car was stopped along the west curb of Segrell Way, a residential street with one unmarked lane for each direction of travel.
Respondent did not awaken until Officer Brann rocked the car and banged on it with a flashlight several times. When respondent “finally [came] around, he started pulling gears [on the manual transmission] as if ․ in his mind, he was already driving or about ready to drive.” Officer Brann and others yelled at respondent, who stopped trying to put the car into gear and rolled down his window. Officer Brann smelled a heavy odor of alcohol on defendant's breath and asked him to step out of the car. Defendant stumbled out of the car and Officer Brann guided him to the sidewalk.
In addition to the odor of alcohol on respondent's breath, Officer Brann observed his slurred speech and red, watery eyes. Officer Brann arrested defendant for driving while under the influence of alcohol (§ 23152, subd. (a)), and advised him of the implied consent law on chemical testing (§ 23157, subd. (a)(1)).3 Respondent refused to take the tests, stating “ ‘I wasn't driving.’ ”
On cross-examination, Officer Brann acknowledged that the car never moved in his presence.
Respondent stipulated that Officer Brann properly advised him of the implied consent law under section 23157, subdivision (a)(1), and that he refused to take the chemical tests. Respondent did not testify.
Based on the evidence presented at the hearing, the hearing officer made the following findings: (1) Officer Brann had reasonable cause to believe respondent had been driving a motor vehicle while under the influence of alcohol; (2) respondent was lawfully arrested; (3) respondent was properly advised of the implied consent law; and (4) respondent refused to take the chemical tests. The DMV revoked respondent's driving privileges for three years.
Respondent requested an administrative review of the DMV order, which was resolved against him.
Respondent then filed a petition for writ of mandate (Code Civ.Proc., § 1094.5), seeking to reverse the DMV's order revoking his driving privileges. Following a hearing, the trial court denied the petition. But upon respondent's motion for reconsideration, the trial court concluded the arrest violated Penal Code section 836 since neither the officer nor anyone else observed defendant move the vehicle, and there was no evidence that the vehicle was obstructing a roadway (§ 40300.5). Based upon the finding of unlawful arrest, the court granted respondent's petition for writ of mandate. DMV appeals this decision.
We must decide whether Officer Brann's failure to observe respondent move the car invalidated his arrest for driving while under the influence of alcohol.4
The implied consent law deems that one who is lawfully arrested for driving while under the influence of alcohol has consented to chemical testing of his blood alcohol level. (§ 23157, subd. (a)(1); People v. Superior Court (1972) 6 Cal.3d 757, 765, 100 Cal.Rptr. 281, 493 P.2d 1145; see Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 451, 214 Cal.Rptr. 249.) “The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle [while intoxicated].” (§ 23157, subd. (a)(1).) The arrestee's refusal of chemical testing may lead to the suspension or revocation of driving privileges as provided in section 13353.
Generally speaking, driving while under the influence of alcohol is a misdemeanor. Penal Code section 836, subdivision 1 permits an officer to make a warrantless misdemeanor arrest if he has reasonable cause to believe the offense was committed in his presence. Since Officer Brann conceded the car never moved in his presence, respondent contends his warrantless misdemeanor arrest was invalid under Penal Code section 836.
Respondent, however, misconstrues the phrase “to drive a vehicle” as used in subdivision (a) of section 23152. The conduct personally observed by Officer Brann constituted “driving” while under the influence of alcohol as proscribed by section 23152.
Officer Brann found respondent apparently unconscious or asleep while slumped behind the wheel of the car with his seat belt fastened. The car was stopped along the curb on a public street with its motor running and lights on. When finally aroused, respondent immediately attempted to drive away. In short, Officer Brann saw respondent assume active control over the vehicle and take every step necessary to resume travel along the public street. Only Officer Brann's quick thinking prevented respondent from driving off. Under these facts, respondent's conduct constituted “driving” within the meaning of section 23152 as a matter of law.
Any “reasonable person would construe the phrase ‘to drive a vehicle’ in subdivision (a) of section 23152 ․ as encompassing any act or action which is necessary to operate the mechanism and controls and direct the course of a motor vehicle.” (People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 6, 222 Cal.Rptr. 540.) This construction is based on the definition of the transitive verb “to drive” found in Webster's Third New International Dictionary (1976) page 692. “Moreover, the noun ‘driving’ is defined as the ‘management of an automobile or other vehicle on the road.’ (Ibid.)” (People v. Wilson, supra, 176 Cal.App.3d Supp. at 6, 222 Cal.Rptr. 540.)
Where an intoxicated driver actively asserts such a degree of control over a vehicle stopped along a curb on a public street with its engine running that it is plain he will momentarily resume travel along the public roads, he is “driving” in the sense intended in section 23152, subdivision (a) and provides a percipient police officer “reasonable cause to believe [the driver] has committed a public offense in his presence.” (Pen.Code, § 836, subd. 1.) The mere fact that the vehicle never moved in Officer Brann's presence does not invalidate respondent's arrest for drunk driving under the circumstances of this case.
On this point, we respectfully disagree with the recent decision of Division Four of the First Appellate District in Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 270 Cal.Rptr. 692, a case virtually indistinguishable from this one. In Music, the officer discovered a driver slumped over the steering wheel of a truck parked, with its engine running and parking lights on, along the shoulder of a public street. Over the course of an hour, the officer passed by the truck three times, and each time the truck and the driver were in the same condition. The officer finally stopped to awaken the driver, who had red and glassy eyes, slow and slurred speech, a strong odor of alcohol on his breath, and exhibited signs of confusion. When the officer asked the driver to shut off the engine, the driver instead reached for the gear shift. The officer, fearing for his patrol car which was parked behind the truck, reached in the window and turned off the engine. The driver then failed a number of field sobriety tests and was arrested for driving while intoxicated (§ 23152, subd. (a)). The driver refused to submit to chemical testing and his license was suspended. On appeal, Division Four of the First Appellate District concluded the arrest was illegal because the vehicle never moved in the officer's presence. The court ordered the superior court to issue a peremptory writ of mandate directing the Department of Motor Vehicles to set aside its order of suspension.
Our contrary determination that respondent drove in the officer's presence within the meaning of section 23152 is supported by Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d 445, 214 Cal.Rptr. 249. In Henslee, the officer came upon a stopped vehicle facing the wrong way in a traffic lane with the engine running. The officer opened the driver's door and shook her vigorously. Upon failing to awaken the driver, the officer placed her in a twist hold. The driver awoke, put the transmission into “drive,” and attempted to drive away. The car traveled a few inches two or three times before the officer physically stopped the driver from proceeding. The driver smelled of alcohol, had slurred speech, staggered when she walked and refused to take a field sobriety test. After being arrested for driving while intoxicated, she refused to take chemical tests and DMV ordered her license suspended for six months. The driver petitioned for a writ of mandate to compel DMV to reverse the suspension of her driving privileges. The trial court granted the writ, finding her failure to drive in the officer's presence, invalidated her arrest.
The appellate court in Henslee reversed, finding the arrestee had driven in the officer's presence. The court stated: “In our opinion the term ‘drive’ within the meaning of [section 23152, subdivision (a) ] 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.” (Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d at pp. 451–452, 214 Cal.Rptr. 249.)
Respondent in this case distinguishes Henslee on the ground the car in that case moved in the officer's presence. But even so, the Henslee court did not rely on this evidence of slight movement. Rather, the Henslee opinion stressed that the car was “parked the wrong way in a traffic lane and ․ [the driver] actively placed the car in ‘drive’ and would have continued but for the officer's quick actions.” (Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d at p. 453, 214 Cal.Rptr. 249.) The court concluded the “policies of prevention and deterrence underlying our drunk driving statutes strongly support our determination that respondent ‘drove’ her vehicle while in the presence of the officer. In fact, respondent's conduct illustrates the precise danger which the statutes seek to obviate. As described earlier, had it not been for the clear thinking of Officer Viveiros, respondent, in an extremely intoxicated condition, would have moved her vehicle into a traffic lane, while facing the wrong direction. There is no doubt that this behavior is the type of conduct which the Legislature sought to deter when they enacted the statute. [Citation.] Moreover, it is a ‘rational surmise’ that one who is seated in a vehicle with the motor on and who places the transmission into drive, ‘intends to resume public travel.’ (City of Kansas City v. Troutner (Mo.App.1976) 544 S.W.2d 295, 299.) Therefore, respondent's conduct posed a threat to public safety just as if she had been found traveling on a highway.” (Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d at p. 452, 214 Cal.Rptr. 249.)
The Henslee court's analysis is consistent with section 40300.5, which provides that notwithstanding Penal Code section 836, “a peace officer may, without a warrant, arrest a person who is (1) involved in a traffic accident or (2) observed by the peace officer in or about a vehicle which is obstructing a roadway, 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.”
Although section 40300.5 is not explicitly mentioned in the Henslee opinion, we believe that a vehicle stopped facing the wrong way in a traffic lane constitutes an obstruction of a roadway. (See People v. Komatsu (1989) 212 Cal.App.3d Supp. 1, 4, 261 Cal.Rptr. 681.) Accordingly, the Legislature clearly exempted the Henslee situation from the presence requirement of Penal Code section 836.
Section 40300.5 does not apply to this case since there is no evidence that the vehicle was either in an accident or obstructing a roadway. But the enactment of section 40300.5 did not isolate from further judicial development the term “to drive” as used in section 23152, subdivision (a). Where a drunken driver exercises such a degree of control over a vehicle stopped on a public road that he does everything necessary to resume travel on public streets, he is “driving” within the meaning of section 23152, subdivision (a) even though he does not move the vehicle in the officer's presence.
Section 40300.5, which the Legislature enacted in 1969, merely clarified existing law by codifying the result reached by the Third Appellate District in McDonald v. Justice Court (1967) 249 Cal.App.2d 960, 58 Cal.Rptr. 29 (disapproved on another ground in People v. Superior Court, supra, 6 Cal.3d at p. 765, fn. 7, 100 Cal.Rptr. 281, 493 P.2d 1145). In McDonald, the court inferentially found the misdemeanor occurred in the officers' presence even though the officers arrived at the accident scene minutes after the drunken driver had crashed into a parked car. (See People v. Ashley (1971) 17 Cal.App.3d 1122, 1126, fn. 4, 95 Cal.Rptr. 509.) By enacting section 40300.5, the Legislature clarified a conflict in the decisional law between McDonald and People v. Walker (1962) 203 Cal.App.2d 552, 555, 21 Cal.Rptr. 692. In Walker, the Fourth Appellate District ruled under facts similar to those in McDonald that the misdemeanor had not occurred in the officers' presence since they arrived upon the accident scene several minutes later and the drunken driver was already standing on the highway. (People v. Walker, supra, 203 Cal.App.2d at p. 555, 21 Cal.Rptr. 692.)
While the Legislature expanded and clarified section 40300.5 in 1984 and in 1986,5 neither subsequent enactment indicates the Legislature precluded judicial interpretation of the term “to drive” as used in section 23152, subdivision (a).
As did the Henslee court, we find the “policies of prevention and deterrence underlying our drunk driving statutes strongly support our determination that respondent ‘drove’ [his] vehicle while in the presence of the officer.” (Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d at p. 452, 214 Cal.Rptr. 249.) The California Supreme Court emphasized the important public safety interest of deterring drunk driving in a decision upholding the constitutionality of a sobriety checkpoint program, stating: “Drunk driving is not merely a crime, it is a serious public safety problem. A vehicle driven by an intoxicated person is as much a road hazard as a vehicle with defective brakes or a defective steering mechanism․ [¶] It is perhaps the characteristic of the automobile as a hazardous instrumentality that affords the greatest distinction between the sobriety checkpoint and an impermissible criminal dragnet.” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1337–1338, 241 Cal.Rptr. 42, 743 P.2d 1299.)
We disagree with cases cited by respondent to the extent they suggest vehicle movement in the officer's presence is necessary for a drunk driving arrest under section 23152. (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029, 229 Cal.Rptr. 310; People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 19, 172 Cal.Rptr. 474.)
Padilla v. Meese, supra, 184 Cal.App.3d 1022, 229 Cal.Rptr. 310 involved a citizen's arrest by Miller, an agricultural inspector. Miller observed the plaintiff “drive his truck into the inspection station, and from his speech and the odor of alcohol about him Miller reasonably concluded [the plaintiff] was in violation of Vehicle Code section 23152.” (Id. at p. 1031, 229 Cal.Rptr. 310.) Miller told the plaintiff he had been drinking too much and to pull over and park. Miller then summoned a highway patrol officer. The responding officer never saw the plaintiff's vehicle move. But based upon the officer's other personal observations and information supplied by Miller, the officer took plaintiff into custody for drunk driving. The plaintiff refused to take a chemical test and his license was suspended. The appellate court affirmed the suspension order, finding the arrest was a valid citizen's arrest in which Miller properly delegated the act of taking physical custody to the officer. (Id. at pp. 1031–1032, 229 Cal.Rptr. 310).
In its discussion, the Padilla court stated that drunk driving does not occur in the officer's presence if the vehicle is stationary when the officer arrives at the scene. (Padilla v. Meese, supra, 184 Cal.App.3d at p. 1029, 229 Cal.Rptr. 310.) The Padilla court further opined that “the movement need not be extensive; even a matter of a few inches will suffice to constitute driving.” (Ibid.) On this basis, the Padilla court concluded a drunk driving offense occurred in the officer's presence in Henslee v. Department of Motor Vehicles, supra, 168 Cal.App.3d 445, 214 Cal.Rptr. 249, because the vehicle lurched forward a few inches in the officer's presence. (Padilla v. Meese, supra, 184 Cal.App.3d at pp. 1028–1029, 229 Cal.Rptr. 310.)
We refuse, however, to draw any distinction between Henslee where the car moved slightly before the officer stopped the intoxicated driver, and this case where the officer fortuitously stopped respondent before any movement occurred. We disagree with Padilla's analysis of Henslee on this point, which is dictum because Padilla involved a citizen's arrest.
Respondent also relies on People v. Engleman, supra, 116 Cal.App.3d Supp. 14, 172 Cal.Rptr. 474. There, the appellate department of the superior court reversed a drunk driving conviction, finding in part that a breath test should have been suppressed as the fruit of an unlawful arrest. The court stated: “A peace officer may make a lawful warrantless arrest for a misdemeanor only if he has reasonable cause to believe that it is being committed in his presence. (Pen.Code, § 836, subd. 1.) Defendant did not drive his car in the presence of the officers and therefore could not be validly arrested for [driving under the influence of alcohol (§ 23102, subd. (a)) ].” (Id. at Supp. 19, 172 Cal.Rptr. 474.)
But we disagree with Engleman's analysis of the conduct necessary to constitute driving within the meaning of section 23152, subdivision (a). Engleman was found “sleeping behind the wheel of his automobile, which was parked on the shoulder of State Route 14 at about 3:20 a.m. ․ Although the engine of the car was running, it was in parking gear. [Engleman] did not awaken until one of the officers had rapped on the window for approximately two minutes. The officer, noting that [Engleman] displayed symptoms of intoxication and that an open can of beer was on the dashboard, ordered defendant out of the vehicle to perform a field sobriety examination. [Engleman] failed the examination. The officer then placed [Engleman] under arrest for the offense of driving under the influence of intoxicating liquor․” (People v. Engleman, supra, 116 Cal.App.3d at Supp. 18, 172 Cal.Rptr. 474.) At trial, defendant's witness, McGrath, “testified that she had driven to the location where the officers found the car and that defendant had exchanged places in the car with her and had only turned on the motor to operate the heater.” (Id. Supp. at 20, 172 Cal.Rptr. 474.)
In our view, Engleman exercised such a degree of actual physical control over the vehicle which was parked on the shoulder of the road with its engine running that he was driving within the meaning of section 23152, subdivision (a). Even assuming the truth of McGrath's testimony, Engleman nevertheless physically controlled the automobile when the officer came upon him. Engleman could have driven away on the public road immediately upon being aroused but for the officer's intervention. Under those circumstances, we would have found Engleman's arrest to be valid.
As People v. Wilson, supra, 176 Cal.App.3d Supp. 1, 222 Cal.Rptr. 540, notes, “[w]ith regard to the offense of driving under the influence of an alcoholic beverage or drug (Veh.Code, § 23152, subd. (a)), a ‘slight movement’ of the vehicle in the officer's presence has been a determinative factor in concluding whether or not a defendant was ‘driving’ in the presence of the officer. [Citations.]” (Id. at Supp. 8, 222 Cal.Rptr. 540.) But movement, in our opinion, should not constitute the sole determinative factor. Far too much emphasis has been placed on the presence or absence of vehicle movement. For example, in Wilson, to avoid the possibility of an accident the officer prudently opened the vehicle door and turned off the engine before awakening the defendant, who was asleep in a vehicle parked on the shoulder at an angle, partially in a traffic lane with its lights on. (Id. at Supp. 3, 222 Cal.Rptr. 540.) Obviously, in coming upon such situations the officer's first concern is public and personal safety. To require the officer to permit the vehicle to lurch forward an inch or two would be absurd, whether or not the vehicle is in a traffic lane, partially in a traffic lane, or against the curb. In any of those instances, the intoxicated driver could suddenly drive away upon being startled awake by the police officer, posing a dangerous public menace.
Respondent also relies on People v. Garcia, (1989) 214 Cal.App.3d Supp. 1, 262 Cal.Rptr. 915, for the proposition that “driving” requires vehicle movement. There, the appellate department of the superior court affirmed Garcia's conviction of attempted driving under the influence (§ 23152, subd. (a); Pen.Code, § 664). Garcia's car was found by the officers in the “number one or fast lane” (id. Supp. at 5, 262 Cal.Rptr. 915) on a freeway. Garcia, the sole occupant, was in the driver's seat, and was trying to start the engine. The officers observed the vehicle roll 15 to 20 feet. The court correctly concluded this movement was “sufficient evidence that [Garcia] ‘drove’ the vehicle.” (Id. Supp. at 4, 262 Cal.Rptr. 915.) As Garcia properly noted, “ ‘a “slight movement” of the vehicle constitutes direct evidence that the vehicle was being “driven.” [Citation.]’ (People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8 [222 Cal.Rptr. 540].)” (People v. Garcia, supra, 214 Cal.App.3d at Supp. 4, 262 Cal.Rptr. 915.)
The discussion of vehicle movement in Garcia is not determinative of the distinct issue here of the validity of respondent's arrest. Garcia involved the sufficiency of evidence to support a conviction of guilt for an attempted drunk driving offense under section 23152, subdivision (a) and Penal Code section 664. It is clear such a conviction may be upheld in the absence of direct evidence of driving (i.e., movement) if there is substantial circumstantial evidence of such. (See People v. Wilson, supra, 176 Cal.App.3d Supp. at p. 9, 222 Cal.Rptr. 540.)
In conclusion, we find Officer Brann subjectively and reasonably believed a misdemeanor offense was being committed in his presence because respondent exercised such a degree of control over the vehicle that he was driving within the meaning of section 23152, subdivision (a).
We reverse the judgment and direct the trial court to deny the writ of mandate and reinstate the revocation order.
The parties are to bear their own costs.
1. Unless otherwise indicated, all statutory references are to the Vehicle Code.Subdivision (a) of section 23152 states: “It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle.”
2. Former section 13353, subdivision (a)(3) provided for a three-year revocation of driving privileges where, as here, the person who refuses chemical testing had two prior convictions under section 23152, subdivision (a) within the immediately preceding seven years. Effective July 1, 1990, section 13353, subdivision (a)(3) provides for a two-year suspension of driving privileges under similar circumstances.
3. Subdivision (a)(1) of former section 23157 states: “Any person who drives a motor vechicle is deemed to have given his or her consent to chemical testing of his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood, and to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of Section 23152 or 23153. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23152 or 23153. The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine and (A) mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, (B) the suspension of the person's privilege to operate a motor vehicle for a period of six months, (C) the revocation of the person's privilege to operate a motor vehicle for a period of two years if the refusal occurs within seven years of a separate violation of Section 23103 as specified in Section 23103.5, 23152, or 23153, which resulted in conviction, or (D) the revocation of the person's privilege to operate a motor vehicle for a period of three years if the refusal occurs within seven years of two or more separate violations of Section 23103 as specified in Section 23103.5, 23152, or 23153, or any combination thereof, which resulted in conviction.”
4. The fact that respondent was intoxicated is undisputed. By stipulation in the criminal prosecution, respondent pled guilty to one count of public intoxication (Pen.Code, § 647, subd. (f)).
5. In 1984, the Legislature expanded section 40300.5 by adding the second exception to the requirements of Penal Code section 836 for vehicles obstructing roadways. The Legislature's statement of intent concerning this 1984 amendment to section 40300.5 provides: “The Legislature finds and declares that driving while under the influence of alcohol or drugs continues to pose a substantial danger to public health and safety, injuring over 65,000 people per year and killing an additional 2,400. Given the severity of the conduct involved, the exception in Section 40300.5 of the Vehicle Code from the general requirements of Section 836 of the Penal Code should be expanded to cover other instances in which the officer has reasonable cause to believe that the person to be arrested had been driving while under the influence of alcohol, drugs, or both.” (Stats.1984, ch. 722, § 2.)In 1986, the Legislature enacted section 40300.6 which states: “Section 40300.5 shall be liberally interpreted to further safe roads and the control of driving while under the influence of an alcoholic beverage or any drug in order to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of the traffic accident. [¶] The enactment of this section during the 1985–86 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the existing law.”
ORTEGA, Associate Justice.
DEVICH, Acting P.J., and VOGEL, J., concur.