UNLAWFUL ARREST
Though not expressly stated in VC ??13353(c)(2) or 13557(b)(2)(B), other statutes and case authority establish that what is actually required in a DMV administrative per se hearing as a result of a California DUI arrest is proof that the person was lawfully arrested.
(See, VC ?23612(a); Mercer v. DMV (1991) 53 C3d 753, 280 CR 745; Gikas v. Zolin (1993) 6 C4th 841, 25 CR2d 500; and Lake v. Reed (1997) 16 C4th 448, 65 CR2d 860.)
A. What Constitutes an Arrest?
An officer’s use of magic words is not the sole basis for determining whether an arrest has occurred the trier of fact must look to the essential elements of custody, Ormonde v. DMV (1981) 117 CA3d 889, 173 CR 79, and distinguish between a temporary detention and a formal arrest. (See People v. Freund (1975) 48 CA3d 49, 119 CR 762 ? defendants arrested when they were placed in the back of a patrol car while police obtained a search warrant, even though officer said arrest took place after the search). Where an arrest does take place, the timing of it is determined by looking to the essential elements of taking the arrestee into custody and actual restraint or submission to custody. (See, People v. Parker (1978) 85 CA3d 439, 443 and Green v. DMV (1977) 68 CA3d 536.)
B. Penal Code ?836
Application of PC ?836 to drunk driving cases nearly always involves a question of whether or not the defendant?s activities witnessed by the arresting officer (or other appropriate person) amounted to the act of ?driving? as it is defined for these purposes.
As for what acts constitute ?driving,? the California Supreme Court cleared up a lot of confusion with the decision in Mercer v. DMV (1991) 53 C3d 753, 280 CR 745, holding that proof of ?driving,? in the presence of the arresting officer, requires proof that the arresting officer witnessed volitional movement of the vehicle by the defendant. Thus, the Supreme Court held that if the vehicle isn?t observed moving, i.e., rolling, then it isn?t being driven. Sister state statutes generally prohibit ?driving? or ?operating? a motor vehicle while under the influence of alcohol, and some prohibit both (e.g., Florida). In order to operate a motor vehicle one does not have to actually move the car. California, however, has a ?driving? only statute, and as Mercer points out, this requires actual movement of the vehicle.
C. Circumstantial Evidence of Driving?Arrest Illegal
Arrest Illegal: The continuing validity of several presence-by-circumstantial-evidence decisions is in doubt in light of the Supreme Court?s decision in Mercer, wherein the court said:
Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest is permissible only if a public offense occurs in the arresting officer?s ?presence,? and because the officer in this
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