Criminal

Thesaurus

						iLawDictionary.Com			USAConstitution Law
						California			Law Students-USL
						Law Dictionary			BankruptcyCode.US
						Criminal Law-Arrest			United States Law.US

US Codes

State Codes

Evidence

Law Students-USL

Federal Rules of Evidence

Medical Dictionaries

A Legal and Business Portal
A Legal and Business Portal

iLaw Dictionary
California
Law Dictionary
Criminal Law-Arrest
(Troppman v. Gourley)

A - Aa - Ab - Ac - B- C- D - E- F - G - H -I- J - L - M- N - K to Z

Criminal Law Arrest Presence Exception Vehicle Code sec 40300.5 Drunk Driving
(Troppman_v_Gourley)

This case squarely presents an issue that has split the appellate courts in this state for several years: whether a person’s driver’s license may be suspended for failing to submit to a chemical test absent a finding that the person was actually driving at the time of the alleged offense. Because this is a pure question of law, based on statutory construction, we exercise independent judgment and do not defer to the superior court’s decision. (Smith v. Santa Rosa Police Dept. (2002) 97 Cal.App.4th 546, 554.)

Before discussing the relevant statutes and case law, it is important to emphasize that Troppman has never challenged the lawfulness of her arrest based on the police officer’s failure to observe her car in motion. In 1991, our Supreme Court held that a lawful arrest for drunk driving requires some volitional movement of the vehicle to be observed by the arresting officer. (Mercer, supra, 53 Cal.3d at pp. 768-769.) The court reasoned that such observation of motion was necessary because Penal Code section 836, subdivision (1) authorizes warrantless misdemeanor arrests only when there is reasonable cause to believe an offense has been committed in the officer’s presence. (Id. at pp. 761, 769.) However, in 1996 the Legislature amended the Vehicle Code in direct response to the Mercer opinion. (People v. Schofield (2001) 90 Cal.App.4th 968, 974.) As amended, section 40300.5, subdivision (e) creates an express exception to the “presence” requirement of Penal Code section 836 for drunk driving arrests where evidence maybe destroyed by the passage of time. (People v. Schofield, supra, 90 Cal.App.4th at pp. 974-975; see also id. at p. 973 [“Due to metabolic destruction of alcohol and/or drugs in the bloodstream over time, this offense has unique proof problems requiring swift police action”].)[2]

Thus, although the factual circumstances in her case fall squarely within those discussed in Mercer, Troppman has not challenged the lawfulness of her arrest. Instead, she argues the DMV did not have authority to suspend her driver’s license because the hearing officer made no finding that she was driving at or near the time of her arrest. Relying on California’s implied consent law, Troppman contends a finding of actual driving is a necessary prerequisite to punishment for refusal to submit to chemical testing. We disagree.

Troppman v. Gourley A105287-2/8/05 CA1/3

Feb 08 2005

A105287
[PDF] [DOC]

Troppman v. Gourley 2/8/05 CA1/3

A - Aa - Ab - Ac - B- C- D - E- F - G - H -I- J - L - M- N - K to Z
Bruton v. United States, supra, 391 U.S. 123 [20 L.Ed.2d 476]
California: Authoritative-Law Dictionary: Table of Contents
Glossaries Directory Table of Contents
Thesaurus Directory
Dictionaries Directory Table of Contents