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People v. Schofield7/19/2001
CERTIFIED FOR PUBLICATION
Originally enacted in 1872, Penal Code section 836 codified the common law rule which generally precluded a peace officer from making a warrantless arrest for a misdemeanor not committed in the officer's presence. At that time, of course, there were no automobiles and no "drunk drivers." Then, an inebriated person either riding a horse or driving a wagon, posed little danger to the public. Times have changed. Now, an inebriated person driving a motor vehicle poses a great danger to the public. Despite increasingly severe penalties for driving under the influence , arrest and conviction for such offense continue to escalate. But prosecution has sometimes been hampered by the "presence" requirement of Penal Code section 836. The Legislature has provided exceptions to this requirement. At issue here is the destruction of evidence exception. (Veh. Code, § 40300.5, subd. (e). See infra at p. 5.)
We hold that a peace officer with probable cause may arrest a person for misdemeanor driving under the influence of alcohol and or drugs not committed in the officer's presence where, as here, evidence may be destroyed unless the person is immediately arrested. We quickly qualify our holding by precluding a peace officer from forcibly entering a residence to effect such an arrest.
Creighton O'Dell Schofield was charged with violating Vehicle Code section 23152, subdivisions (a) and (b). Prior to trial, he unsuccessfully sought to suppress the fruits of what he claimed was an unlawful arrest. He was also unsuccessful before the Appellate Division of the Superior Court of San Luis Obispo County. That court, however, certified the matter to us. We ordered transfer to settle an important question of law. (Cal. Rules of Court, rule 63.) Facts
At approximately 2:30 p.m. February 8, 2000, Atascadero Fire Department personnel were dispatched to Chalk Mountain Liquor store. They had received a report of a passed-out subject. Atascadero Peace Officer Michael McCray also responded and was the first to arrive. Office McCray contacted a store employee , Stephen Bolin.
Bolin stated that a subject, later identified as appellant, had passed out near the side entrance to the liquor store. Bolin said he thought appellant had a medical problem prompting him to call 911. At that point, another customer helped appellant stand up. Bolin said he went outside and saw appellant getting into a green Karman Ghia. Bolin walked up to the vehicle and noticed that appellant was sitting in the driver's seat of the vehicle. Bolin asked appellant if he was all right, and appellant responded, "Yes." At that time Bolin detected a strong odor of alcohol on appellant's breath. Bolin said he believed that the subject was too intoxicated to drive so he attempted to take the keys from the ignition. Appellant grabbed the keys, pulled them from the ignition, and threw them on the floorboard. Bolin said he believed the person was not going to drive and so went back to the liquor store. Bolin then saw appellant drive away southbound on El Camino Real.
Bolin described the driver as being an older white male, in his fifties, with brown hair and wearing sunglasses. He said the subject was a "regular" at the liquor store. Bolin handed McCrary a piece of paper which showed the license plate number to be 1EMS119. McCray had police dispatch run the license plate while he drove southbound on El Camino Real to find appellant. McCray was unable to locate the vehicle. He was advised that the Karman Ghia was registered to a subject who lived at 9371 Musselman Avenue in the City of Atascadero. McCray drove there and saw the Karman Ghia parked in front of the residence. McCray exited hi
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