I’m sure you’ve seen the billboards: “Report Drunk Drivers. Call 9-1-1.” The CHP and other agencies even have tips for spotting and reporting a drunk driver. So, let’s say you see a car weaving somewhat on the road and you suspect a drunk driver. You call 9-1-1 and report the driver, your location, and the license plate number of the weaving vehicle. What happens next?

Generally, the local law enforcement agency with jurisdiction over the location will respond.  Perhaps they will observe the vehicle and determine that the driver is violating a traffic law (such as Vehicle Code section 21658, lane change violation) and effect a legal traffic stop. If the detaining officers end up finding probable causeto believe the driver is under the influence of alcohol or drugs, a legal arrest will be made.

But what if the officers locate the vehicle but it is not moving? Say the driver is parked with the engine off. Can the officers still confront the driver and potentially arrest him or her if there is reason to believe the driver is under the influence? After all, the driver is not driving, and the DUI law prohibits drivingunder the influence. Over 25 years ago, in the seminal case, Mercer v. Department of Motor Vehicles, the California Supreme Court held that “driving” under the DUI law requires evidence of observed volitional movement of the vehicle.

In the Mercercase, police responded to a call from neighbors who found Mr. Mercer slumped over the steering wheel of his car. Mr. Mercer was sitting in the driver’s seat of the car, which was legally parked. The car’s lights were on and the engine was running.  Mr. Mercer awoke when the officer’s rocked the car and banged on it with a flashlight. When the officers determined that Mr. Mercer was under the influence of alcohol, he was arrested without warrant for driving under the influence. He refused to take a chemical testbecause he denied that he had been driving the vehicle. Mr. Mercer challenged the arrest.

The offense was a misdemeanor and California law (Penal Code section 836) prohibits a warrantlessarrest for a misdemeanor crime unless the crime is committed in the officer’s presence. At the time of the Mercerdecision, the Vehicle Code at section 40300.5 had carved out two exceptions to the Penal Code section 836 requirement “for ‘drunk driving’ arrests made at or near an accident scene, or when a vehicle is found protruding into the street. . ..” (Mercerat p. 761.) Finding that because Mr. Mercer’s vehicle was legally parked, neither section 40300.5 exception applied. If, for example, Mr. Mercer’s vehicle was protruding into the street or he had been involved in an accident prior to law enforcement’s arrival, then the arrest would have been legal even though the officers did not observe Mercer driving the vehicle because this would fall under the one of the section 40300.5 exceptions. But the facts in Mercer did not fall within one of the two section 40300.5 exceptions and therefore the Supreme Court determined that the Vehicle Code section 23152 arrest required proof of volitional movement of the vehicle observed by the arresting officer.  (Mercer at pp. 768-769.)

Things have changed….

Since the Mercercase, the exceptions to Vehicle Code section 40300.5 have been expanded. Now there are three new exceptions in addition to the two that existed at the time of the Mercer case. Those new exceptions are: “The person will not be apprehended unless immediately arrested, ¶ The person may cause injury to himself or herself or damage property unless immediately arrested, [and] ¶ “The person may destroy or conceal evidence of the crime unless immediately arrested.” (Veh. Code §40300.5, subdivisions (c), (d), and (e).) The astute reader will note that the last exception is a “catchall.”

Law enforcement uses this exception to arrest drunk drivers even though they do not observe the driver driving. As long as there is evidence or a report that the driver was driving and the police have probable cause to believe the driver is under the influence, an arrest is lawful even without observing the offense because if the driver is not immediately arrested (without first obtaining a warrant) the evidence may be destroyed, i.e., the blood alcohol content of the driver will dissipate. In fact, this section has even been used to find the warrantless arrest of a drunk driver who was inside his home lawful. (People v. Thompson (2006) 38 Cal.4th 811., [A citizen reported the driver and his vehicle. The vehicle was not observed on any road by the police. The driver parked in the driveway of his home and went inside. When officers located the car in the driveway and found the hood warm to the touch, they knocked on the door looking for the driver. When he refused to come out, the officers entered his home and arrested him.].)

Many drivers are under the impression that the police cannot arrest them for driving under the influence unless the police observe them driving. Under the law, this is not always so. Still, it may be more difficult to prosecute a DUI when the police did not witness the driving. An experienced DUI attorney can help and may be able to get the charge dismissed or reduced.

Orange Count DUI defense attorney William Weinberg has over 25 years of experience defending DUI charges. He is available for a free consultation to discuss your matter. You may contact him by email at bill@williamweinberg.comor call him at his Irvine office at (949) 474-8008.





Posted in:

Comments are closed.