Many misdemeanor driving under the influence arrests stem from a traffic stop, a sobriety checkpoint, or other situations where law enforcement actually witnesses the suspect driving. Many cases however, do not involve circumstances where law enforcement is present to witness the “driving” element of the suspected violation. Examples include: when a person is passed-out and slumped over the steering wheel of a parked car and law enforcement begins a welfare check; or when a person is sitting next to a broken down vehicle on the shoulder of a freeway and law enforcement stops to help; or when another citizen reports a drunk driver but the suspect has stopped driving by the time law enforcement arrives. In such cases there may be a way to exclude the results of the chemical test from any criminal proceedings, even when there is probable cause to arrest, and prevail at an administrative per se hearing, even where there is strong evidence that the person drove with a 0.08% or greater blood alcohol concentration. The underpinning argument – which has failed in the past, but should now prevail – involves the issue of statutory authority to arrest.

Generally, California law only permits law enforcement the authority to effectuate warrantless arrests for suspected misdemeanor violations if the criminal conduct occurs in the presence of law enforcement. (Penal Code section 836.) This general rule however, does not offer much protection to a person arrested for driving under the influence. This is predominantly due to Vehicle Code section 40300.5, which creates an exception permitting law enforcement to arrest a person suspected of driving under the influence, even if the conduct occurs outside the presence of law enforcement. Section 40300.5 lists the following five circumstances to which it applies:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

e) The person may destroy or conceal evidence of the crime unless immediately arrested.

Although these five circumstances appear to be somewhat limited, current appellate law arguably applies section 40300.5(e) to every driving under the influence investigation. (People v. Schofield (2001) 90 Cal.App.4th 968.) Schofield explains that “evidence will be destroyed by the simple passage of time” but the opinion provides no case-specific justification for the application of 40300.5(e). (Id. at 975.) Schofield relies upon Schmerber v. California (1966) 384 U.S. 757, which at the time was widely misinterpreted by California appellate courts. (See, e.g., People v. Jimenez (2015) 242 Cal.App.4th 1337 (recognizing the misinterpretation of Schmerber.)

The Supreme Court’s subsequent decision in Missouri v. McNeely (2013) 569 U.S. ___, 133 S. Ct. 1552, merits a reexamination of any rule calling for a per se application of 40300.5(e) based on the natural evanescence of alcohol in a driver’s blood. In McNeely, the Court held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case.” (Id. at 1568.) Although the McNeely decision focused on exigency generally, in coming to its holding the Court disapproved logic that destruction of evidence – based only on a delay caused by the issuance of a warrant – is a per se problem in driving under the influence investigations. (Id. at 1561.)

Importantly, Schofield did not expressly announce a per se application of section 40300.5(e) to every driving under the influence investigation, and to the extent that the holding in Schofield could be argued to support any such per se application, that argument is no longer valid. This is because Schofield, while consistent with the prevailing interpretation of Schmerber at the time, appears at odds with more recent thinking on the subject. After McNeely, the validity of any misdemeanor driving under the influence arrest should be questioned when the law enforcement does not witness driving. The availability of meaningful remedies is another matter.

A Violation of Constitutional Magnitude

When the conduct of law enforcement is illegal under State law, any evidence derived from the illegal action is not necessarily suppressed in criminal proceedings unless the violation also implicates Constitutional protections. (See, e.g., People v. Trapane (1991) 1 Cal.App.4th Supp. 10.) “There is no federal constitutional requirement that a misdemeanor be committed in an officer’s presence.” (Id. at 13; People v. Burton (2013) 219 Cal.App.4th Supp. 9, 13.) Accordingly, an arrest that does not comply with section 40300.5 also does not – standing alone – lead to exclusion of all subsequently discovered evidence; however, such a violation may lead to the exclusion of the results of a chemical test if the officer reads an “implied consent” admonition.

Implied consent only applies when a person is lawfully arrested for a violation of section 23140, 23152, or 23153. (Veh. Code section 23612(a).) Put another way, “[a]n essential prerequisite for the application of the implied consent law is a lawful arrest for driving under the influence.” (Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 847.) If a person is not lawfully arrested for driving under the influence, then any assertion by law enforcement that the person must take a chemical test – which is not actually legally required – is a claim of unlawful authority; acquiescence to such a claim is coerced consent. (See, e.g., Bumper v. North Carolina (1968) 391 U.S. 543, 548.) Coerced consent is not valid consent at all. (See, e.g., Illinois v. Rodriguez (1990) 497 U.S. 177, 183.) In a similar context, the Supreme Court recently recognized that law enforcements’ unauthorized advisements of implied consent renders invalid any subsequently provided purported consent to submit to a chemical test. (Birchfield v. North Dakota (2016) 579 U.S. ___, 136 S. Ct. 2160.)

An example helps illustrates this point. If an officer tells a suspect who has been arrested for vandalism that the law requires him to submit to a chemical test, and then the suspect so consents, is the suspect’s consent valid? Absolutely not because it was coerced by an incorrect claim of lawful authority. The same situation presents itself when a driver is arrested not in compliance with Penal Code section 836 and is then told they must take a chemical test because there is no requirement that an unlawfully arrested driver submit to such a test.

At first blush, this concept appears inconsistent with People v. Harris (2015) 234 Cal.App.4th 671, 689, in which the Fourth District Court of Appeal held that a suspect’s “submission to a blood test is not coerced merely because it is made after advisement under the implied consent law.” Harris, however, involves a lawful arrest and therefore a situation where the law enforcement actually had the legal authority to read implied consent. A situation involving an unlawful arrest, such as when Penal Code section 836 is not followed, and in which an implied consent admonition cannot lawfully be read, is entirely distinct.

Given the recent decisions of McNeely and Birchfield, warrantless misdemeanor arrests in driving under the influence cases, where law enforcement fails to comply with Penal Code section 836 but still admonishes the suspect of implied consent, should lead to suppression of chemical test results in criminal proceedings despite Proposition 8. The analysis is fortunately less complex for the potential administrative proceedings which follow a driving under the influence arrest.

Administrative Per Se Proceedings

Proposition 8, and evidence suppression for that matter, are not issues the Department of Motor Vehicles considers in administrative per se hearings because the proceedings are not criminal proceedings. (People v. Trapane (1991) 1 Cal.App.4th Supp. 10.) Under California’s administrative per se statutes the issues the Department considers are limited, and one issues is whether the driver was arrested. (Vehicle Code section 13557(b).) As part of this issue, in order for the Department to validly suspend a person’s driver’s license, “the underlying arrest must have been lawful.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 847.) For an arrest to be lawful, law enforcement must not violate the driver’s Fourth Amendment rights, and – importantly – the arrest must also comply with California statutory law. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760.) The corollary is that if a warrantless misdemeanor arrest does not comply with California’s statutory requirement that the conduct occur in the presence of law enforcement then a set aside should be ordered. (See id.)

An Uphill Battle . . . Perhaps

It is worth noting that invalidating a misdemeanor arrest in a driving under the influence investigation because the conduct occurred outside the presence of law enforcement is expectedly a concept that (currently) runs against the grain for many people involved in the criminal justice system. There is no appellate case that neatly supports such an argument so some resistance from a Hearing Officer or a Judge should be expected. That being said, with the right factual scenario, there is sound legal authority both for an administrative set aside and, in the criminal proceedings, for the suppression of the results of the chemical test.