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People v. Engleman2/4/1981
California Appellate Department, Superior Court
Crim. A. No. 18086
172 Cal.Rptr. 474, 1981.CA.41010
February 4, 1981
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROELOF ENGLEMAN, DEFENDANT AND APPELLANT
Municipal Court for the Antelope Judicial District of Los Angeles County, No. T-32408, William G. Brigance, Judge.
Wilbur F. Littlefield, Public Defender, and John Hamilton Scott, Deputy Public Defender, for Defendant and Appellant.
John K. Van de Kamp, District Attorney, and Roderick W. Leonard, Deputy District Attorney, for Plaintiff and Respondent.
Opinion by Saeta, J., with Bigelow, Acting P. J., and Fainer, J., concurring.
Saeta
Defendant appeals from a judgment of conviction of driving under the influence of alcohol in violation of Vehicle Code section 23102, subdivision (a) after a jury trial.
Two California Highway Patrol officers had found him sleeping behind the wheel of his automobile, which was parked on the shoulder of State Route 14 about 3:20 a.m. on September 15, 1979. Although the engine of the car was running, it was in parking gear. Defendant did not awaken until one of the officers had rapped on the window for approximately two minutes. The officer, noting that defendant 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. Defendant failed the examination. The officer then placed the defendant under arrest for the offense of driving under the influence of intoxicating liquor and took him to the station where he administered a breath test of defendant's blood alcohol level. The results of this test were admitted against the defendant at trial.
Defendant contends that the court erred in denying his motion to suppress all observations of the officers, the results of the field sobriety examination and the results of the breath test because, he urges, they were all obtained pursuant to an unlawful arrest.
This contention reaches too broadly. Only the breath test was obtained after the arrest. It was reasonable for the officers to have defendant get out of his car to investigate his possible intoxication and to see if he could care for himself and his two passengers. (People v. Manning (1973) 33 Cal. App. 3d 586, 604-605 [109 Cal. Rptr. 531]; People v. Kelley (1969) 3 Cal. App. 3d 146, 150 [83 Cal. Rptr. 287].) Thus there was no reason to suppress the officers' observations and the field sobriety examination results.
However, the situation is different as to the breath test. Such a search and seizure, absent consent, can be validated only by a preceding valid arrest. (People v. Superior Court (Hawkins) (1972) 6 Cal. 3d 757
[100 Cal. Rptr. 281, 493 P.2d 1145].) We agree with defendant that the circumstances related above could not support a valid arrest for driving under the influence of intoxicating liquor. Vehicle Code section 23102, subdivision (a) is a misdemeanor. 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
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