FREEMAN v. DEPARTMENT OF MOTOR VEHICLES (1968)

After an informal hearing before a referee of the Department of Motor Vehicles, the automobile driver's license of Donald Joseph freeman was ordered suspened for a period of six months due to the fact that, after his purported arrest for misdemeanor driving while intoxicated, he refused to take any of the tests for intoxication provided by section 13353 of the Vehicle Code. He sought a writ of mandate to prevent the carrying out of the order of the department. After a hearing, the Superior Court of Kern County executed a judgment that a writ of mandate issue commanding the respondent department to set aside its decision of July 3, 1967, which suspended the driver's license of the petitioner. In due course, the department of Motor Vehicles appealed.

The case turns on the following provision of law: Vehicle Code section 13353 provides in part:

‘(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.

‘* * * * * *

‘(b) If any such person refuses the officer's request to submit to a chemical test, the department, upon receipt of the officer's sworn statement that he had reasonable cause to believe such person had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor and that the person had refused to submit to the test after being requested by the officer, shall suspend his privilege to operate a motor vehicle for a period of six months. No such suspension shall become effective until 10 days after the giving of written notice thereof, as provided for in subdivision (c).’ (Emphasis added.)

It will be observed that in order for the section to be applicable there must be a lawful arrest as a condition precedent. According to the official records, Officer Byrd of the California Highway Patrol made the arrest for misdemeanor ‘driving under the influence of intoxicating liquor’ (Vehicle Code § 23102), and it is conceded that he did not see Mr. Freeman driving the car, having arrived at the scene 15 to 20 minutes after Freeman had left the vehicle. Mr. Freeman contends that he was not guilty of the alleged misdemeanor.

Section 836 of the Penal Code states in part that:

‘A peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person:

‘1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.’ (Italics added.)

The trial court based its decision on the conceded fact that the offense of driving while intoxicated (a misdemeanor) was not committed in the presence of the arrestingn officer, because he did not see Freeman driving, and that, consequently, there was no legal arrest and, hence, section 13353 of the Vehicle Code was inapplicable.

In the case of People v. Walker, 203 Cal.App.2d 552, 555, 21 Cal.Rptr. 692, 694, the Court of Appeal, Fourth Appellate District, deals with the issue as follows:

‘Without detailing the evidence in the premises, the record establishes that the officer had probable cause to believe that the defendant had committed the offense of driving while under the influence of intoxicating liquor and of driving without an operator's license in his possession. However, the question for determination is whether he was authorized to arrest the defendant therefor without a warrant, even though probable cause for making the arrest existed. Both of these offenses were misdemeanors (Veh.Code, §§ 23102, 12951 and 40000); in both an essential element is the act of driving an automobile; and the arrest for both occurred at night. Under these circumstances a lawful arrest without a warrant was permissible only if the offense had been committed in the presence of the arresting officer. (Pen.Code, §§ 836, 840.) The officer testified that he did not see the defendant driving the subject automobile; he arrived at the scene of the accident several minutes after it had occurred; the defendant was standing in the highway; and it is obvious that neither of the offenses for which the arrest was made occurred in his presence. Clearly the arrest was unlawful.’ (Italics added.)

(See also: Miller v. Glass, 44 Cal.2d 359, 361, 282 P.2d 501; Oppenheimer v. City of Los Angeles, 104 Cal.App.2d 545, 549, 232 P.2d 26; Collins v. Owens, 77 Cal.App.2d 713, 718, 716 P.2d 372; Kaufman v. Brown, 93 Cal.App.2d 508, 209 P.2d 156; People v. Machel, 234 Cal.App.2d 37, 47, 44 Cal.Rptr. 126.)

The department, however, contends that the statutory language ‘in his presence’ is to be liberally construed, and that, consequently, there was a valid and legal arrest of Freeman by the officer for a violation of Vehicle Code section 23102, which reads as follows:

‘It is unlawful for any person who is under the influence of intoxicating liquer, * * * to drive a vehicle upon any highway. * * *’

Such a construction, however, inferentially would hold that the Legislature did not mean what it plainly said. No matter what the result in added difficulties for the highway patrol, the trial court had legislative language to construe, and the clear meaning of the code section cannot be twisted to meet the convenience of the Department of Motor Vehicles.

The department further contends that the arrest was really made by both Officer Byrd and Deputy Sheriff Fowler, who was first on the scene and who did in fact see Freeman driving the automobile. It is suggested that both officers arrested Freeman; Fowler had seen Freeman drive and it is said that Byrd later arrived and completed the arrest.

Penal Code section 834 states:

‘An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.’

Penal Code section 835 states:

‘An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and detention.’

Freeman insists that all of the facts show Byrd as the arresting officer; the department record so indicates; at the hearing before the referee, Freeman admitted that he was arrested by Officer Byrd; there was testimony the arresting officer arrived about 15 to 20 minutes after Freeman was stopped by the sheriff's officer.

Appellant also suggests that the case is controlled by McDonald v. Justice Court, 249 Cal.App.2d 960, 962–963, 58 Cal.Rptr. 29, 30, in which it is said:

‘Although the record does not divulge any probable cause that petitioner had committed a felony, particularly since no one else was injured (cf. Veh.Code, § 23101), section 836 of the Penal Code provides, in part, that a peace officer may arrest a person without a warrant ‘whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.’ The term ‘in his presence’ is liberally construed. (See People v. Lavender, 137 Cal.App. 582, 486–589, 31 P.2d 439.) Neither physical proximity nor sight is essential. (See People v. Burgess, 170 Cal.App.2d 36, 41, 338 P.2d 524.)

‘Here, the officers testified that they arrived on the scene in less than one minute after receiving the radio alert. It was apparent to the investigating officers that petitioner's car had struck a parked car. Petitioner's car and her breath strongly smelled of alcohol. Under these circumstances, there was sufficient evidence for arrest for misdemeanor drunk driving. By the very nature of the situation, arrests for drunk driving arise in the context of an arrest made by an officer without a warrant. (Schmerber v. State of California, 384 U. S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908, 918.’

There can be no question but that the officer in that case did not see the defendant as she was driving her car, and, consequently, the decision in that case is out of line with the great weight of authority. It is also unquestionable that the inferential evidence there is stronger than in the present case; only one minute elapsed from the time the arresting officer received a radio alert until he saw the car at a standstill on a lawn, not that of the defendant, with the unconscious defendant behind the wheel; it was an easier inference that she had been driving than was present in the instant case.

However, Mr. Freeman properly contends that whether there was a right on the part of Officer Byrd to arrest him for a misdemeanor ‘in his presence’ must be determined by whether the officer could testify to an actual knowledge of the essential elements of the offense.

In People v. Garrison, 189 Cal.App.2d 549, at page 557, 11 Cal.Rptr. 398, at page 404 the court states:

‘Whether an offense has been committed in an officer's presence is determined by whether the officer could testify to actual knowledge to every element of the offense. People v. Craig, 152 Cal. 42, 45, 91 P. 997. The question of reasonable and probable cause must be measured by the facts presented to the officer at the time he is required to act. People v. Kilvington, 104 Cal. 86, 37 P. 799, 43 Am.St.Rep. 73; People v. Hupp, 61 Cal.App.2d 447, 143 P.2d 84.’

The trial court also clearly evidenced its conclusion during the proceedings that the hearing before the department's referee was not fair in that such official denied the showing of a motion picture of Mr. Freeman taken a short time after he stopped driving, and which showed conclusively to the judge's satisfaction that he was not intoxicated.

The judgment granting the peremptory writ of mandate is affirmed.

CONLEY, Presiding Justice.

STONE and GARGANO, JJ., concur.