Metropolitan News-Enterprise


Friday, July 20, 2001


Page 3


Appeals Court Upholds Arrest of Drunk Driving Suspect Outside Residence


By KENNETH OFGANG, Staff Writer/Appellate Courts


Police may arrest a drunk driving suspect, whose driving has not been observed by officers, outside the suspect’s residence in order to prevent the loss of evidence through destruction of alcohol over time, this district’s Court of Appeal ruled yesterday.

Div. Six affirmed an order by San Luis Obispo Superior Court Judge Donald G. Umhofer, who declined to suppress blood-test evidence in the case of Creighton O. Schofield. Schofield was arrested outside his Atascadero residence by officers responding to a report that he had driven home from a local liquor store in an inebriated state.

Schofield’s attorney, Robert B. Lilley of Atascadero, argued that the arrest was illegal under Penal Code Sec. 836, which follows the common law rule and generally prohibits a warrantless arrest for a misdemeanor committed outside the officer’s presence. But the court held that the arrest was lawful under an exception permitting an arrest for drunk or drugged driving in order to prevent a suspect from destroying or concealing evidence.

Schofield was arrested by Officer Michael McCray, who testified that he had gone to the Chalk Mountain Liquor Store in response to a report that someone had passed out. McCray said he was told by a store employee that a man had passed out near the store entrance and returned to his car with assistance.

The employee said he walked up to the man’s vehicle and asked him if he was all right. The man, who had a heavy odor of alcohol on his breath, said he was, the worker said.

The worker said he went back into the store, and then, to his surprise, the driver took off. Police got the license plate number from the employee—who said the driver was a regular customer—then identified the car as being registered to Schofield and went to the suspect’s house.

Schofield, McCray said, appeared to be under the influence, admitted that he had just come from the liquor store, and had difficulty taking out  his driver’s license. The suspect was asked to come out and perform field sobriety tests, which he did poorly, and was then arrested.

Umhofer’s denial of the motion to suppress was affirmed by the Appellate Division. The Court of Appeal agreed to hear the appeal in order to resolve what it characterized as an important legal issue.

Justice Kenneth Yegan, writing for Div. Six, held that the 1996 destruction-of-evidence exception, enacted as Vehicle Code Sec. 40300.5(e), applies regardless of whether there was a danger of the willful destruction or concealment of evidence.

The destruction-of-evidence rule, Yegan noted, is one of several exceptions to the “presence” requirement which are specifically applicable to drunk or drugged driving. The express purpose of those exceptions, he explained, is to protect members of the public from being injured or killed by impaired drivers.

“The Legislature has recognized that driving under the influence is widespread and serious with potential for catastrophic consequences,” the justice said. “....Due to metabolic destruction of alcohol and or drugs in the bloodstream over time, this offense has unique proof problems requiring swift police action.”

Citing a Nebraska Supreme Court decision interpreting a nearly identical statute, Yegan wrote:

“Vehicle Code section 40300.5 subdivision (e) creates an exception to the presence requirement of Penal Code section 836 because evidence will be destroyed by the simple passage of time unless the person is immediately arrested.”

The justice added a caveat, however.

“Our holding does not authorize a peace officer to forcibly enter a residence to effect a driving under the influence arrest because otherwise, evidence will be destroyed or concealed by the simple passage of time,” he wrote. Since “a man’s house is his castle,” the jurist wrote, the right to be secure in one’s home takes precedence over Sec. 40300.5(e).

It was proper, however, for police to ask Schofield to come out of his home to take the field tests, and to arrest him outside after he failed, Yegan said.

The case is People v. Schofield, B149435.


Copyright 2001, Metropolitan News Company