Plea Bargin Down from a DUI charge to a ‘Wet Reckless’ charge

This is a charge to the lesser included offense of violation of
23103. The term wet reckless does not actual appear anywhere in the
statutes.

Instead, a 23103 conviction is specially permitted where (1) the defendant pleads guilty to a California DUI violation of 23103, in satisfaction of or as a substitute for, an original charge of non-injury drunk driving 23152, (2) the prosecutor states for the record a factual basis, including facts disclosing whether or not alcohol or drugs were consumed, and (3) the court advises the defendant of the drunk driving sentence enhancement consequences of the conviction (23103.5).

Wet Reckless 23103.5
1. Counts as a prior conviction is convicted again within 10 years.
2. Insurance companies treat it as a California DUI.

A "dry" reckless is also an occasional disposition in a DUI. Where
"dry" reckless is the disposition, there need not (and must not) be
compliance with 23103.5. That’s because the separate offense of
reckless driving could have been charged in the first place.
Therefore it’s not a satisfaction or substitution (23103.5) for a
drunk driving charge.

A "dry" reckless conviction results where a charge of violation of
23103 is simply added to the complaint as an offense that could have
been charged originally, the defendant pleads guilty to it, and the
DUI charge is dismissed.

To be certain that the conviction will not become a DUI sentence
enhancement in the future, be sure to state that the conviction is
understood by all to be "not in accordance with 23103.5". And be sure
the clerk understands that Disposition Code "R" does not go on the
abstract sent to the DMV.

WET RECKLESS PENALTIES

Approximately 17 years ago, the legislature created a new statute
known as "wet reckless" – reckless driving that is related to alcohol
(Vehicle Code Section 23103.5). It is a bazaar fiction that there is
no requirement that there is any reckless driving. The legislature’s
purpose was to encourage plea bargains in close cases – giving
defendants a reason to plead guilty and yet giving to government a
way to get convictions. The following are the approximate usual
penalties imposed for cases reduced from a DUI to a "wet reckless"
(as of March 1999):

$600 – 1,200.00 in fines;
three years of "informal probation"

It is important to remember that a person who receives this reduction is still viewed as having suffered a “prior” DUI conviction should they receive another DUI arrest in California the next ten years. This means you are treated the same by the DA and the judge as if you had pled to a DUI instead of the wet reckless. DMV and insurance companies treat the charges the same also (Two points against your license and increased insurance premiums).

Are you need of a California DUI Lawyer?

Filed 1/24/02

S085213

The People, Ct. App. 1/4

Plaintiff and Respondent, A085945 v. Solano County Super. Ct. No.
J29844

ArtUro D., Defendant and Appellant. )

The People, S085218

Plaintiff and Respondent

Ct. App. 4/3 v. G023616

Randall ray hinger, )Orange County Super Ct. No. 97CF2564

Defendant and Appellant.

---

We granted review in these matters to determine whether, when a driver
who has been detained for citation for a Vehicle Code infraction fails to
produce vehicle registration or personal identification documentation
upon the request of the citing officer, the officer may conduct a
warrantless search for such documentation, and, if so, the permissible
scope of such a search. After briefing was complete, we consolidated
these two matters for purposes of oral argument and opinion. We conclude
that in these circumstances the Fourth Amendment to the United States
Constitution, which prohibits unreasonable searches and seizures, permits
limited warrantless searches of areas within a vehicle where such
documentation reasonably may be expected to be found. Applying that
standard, we conclude that the document searches in both cases were
proper, and, accordingly, we reverse the judgment in In re Arturo D.
(S085213), and affirm the judgment in People v. Hinger (S085218).

I.
A. In re Arturo D.

At approximately 11:30 p.m. on a weeknight in late August 1998, Suisun
City Police Officer Rowe stopped minor Arturo D.’s extended cab truck,
which had been traveling more than 70 miles per hour in a 50
mile-per-hour zone. Arturo was driving and was accompanied by two
passengers, one of whom was stretched across the truck’s rear pull-down
seat. When asked for his identification, Arturo gave his name, date of
birth, and a Vallejo address, but admitted that he lacked a valid
driver’s license and that the truck was not his. Arturo provided no
documentary evidence as to his identity, proof of insurance, or vehicle
registration. At that point, Officer Rowe planned to issue defendant a
citation for speeding and for driving without a license. Rowe asked the
occupants to exit from the truck, and they did so. From inside the front
of the truck cab, Rowe then blindly felt with his hands under the
driver’s seat for documentation relating to the driver and the vehicle.
Not encountering such documents, Rowe repositioned himself behind the
driver’s seat, bent down, and looked under the seat. Rowe found a glass
smoking pipe located “towards the center” of the floor under the driver’s
seat. In the same location Rowe also found a blue box containing a white
vial, which itself contained an unusable amount of white powder. Rowe
asked whether the items belonged to Arturo, and he replied that they
did.

Rowe issued a citation to Arturo for speeding and driving without a
license, and because there was no licensed driver to drive away the
truck, Rowe made arrangements to have the vehicle towed. (Veh. Code,
§§ 12500, subd. (a), 14602.6, subd. (a), 22651,
subd. (p).) Arturo went to the police station, planning to make a
telephone call to arrange a ride home. At the police station Rowe
examined the blue box more closely, discovering in an internal
compartment a plastic bindle containing a usable quantity of a white
powdery substance that, after testing, proved to be methamphetamine.
Arturo then was placed under arrest. The district attorney subsequently
filed a petition alleging that Arturo came within the provisions of
Welfare and Institutions Code section 602, in that he possessed
methamphetamine (Health & Saf. Code, § 11377, subd. (a))
(count I) and an opium pipe (id., § 11364) (count II), and
had driven without a license (Veh. Code, § 12500, subd. (a))
(count III).

At the jurisdictional hearing, the trial court denied Arturo’s
suppression motion and sustained the petition as to counts II and III.
Thereafter the court adjudged Arturo a ward of the court, and he
appealed. In a published opinion, Division Four of the First District
Court of Appeal reversed the order denying Arturo’s motion to suppress
the smoking pipe, reasoning that “the scope of the officer’s intrusion
went beyond that justified by the need to locate registration [and other
identifying documents] and accordingly, it was unreasonable as a search
for registration [and other identifying] documents.”

B. People v. Hinger

In August 1997, while driving alone in his automobile, defendant
Randall Hinger was stopped by Orange Police Officer Skinner for making
unsafe lane changes. Hinger told Skinner that his name was “Randy Hinger”
but that he did not have his driver’s license with him, and that he had
no documentation concerning the car he was driving. At some point during
this process, Skinner noticed Hinger open the glove compartment of the
vehicle. According to the officer, Hinger explained that he only recently
had purchased the vehicle, or that he was in the process of purchasing
it.

With Officer Skinner’s permission, Hinger exited from the car. While
Skinner used his radio to conduct a record check on Hinger’s name and
automobile, a backup officer arrived. While waiting for the requested
record check, Skinner asked Hinger whether he could search the car.
Hinger declined to consent. After Skinner informed Hinger that he would
look for identification and registration notwithstanding Hinger’s
refusal, Hinger said he might have a wallet in the car after all,
suggesting it could be in the glove compartment.

Officer Skinner noticed that the glove compartment that Hinger
previously had opened was still ajar, exposing some loose papers. As
Skinner later explained, “I wanted to find out who [defendant] was. I
wanted to make sure that the name he gave me was his real name and make
sure that the vehicle that he was driving either was in the process of
belonging to him or was not stolen, or just to document who the vehicle
belonged to.” Skinner opened the front passenger door and lifted up the
loose papers in the glove compartment, but found no identifying documents
or wallet. Skinner then walked to the driver’s side of the car, opened
the door, and looked under the front seat for the wallet, finding nothing
there. The officer walked back to the passenger side of the car and
looked under the passenger seat (apparently doing so from the vantage
point of the front of the seat). There Skinner saw and seized a wallet.
Upon opening the wallet, he found inside a form of identification
&endash; a check-cashing card with Hinger’s photograph on it
&endash; and a clear plastic baggie containing methamphetamine.

Hinger was arrested for possession of methamphetamine and pleaded
guilty to that charge after the superior court denied his motion to
suppress the foregoing evidence. In an unpublished opinion, Division
Three of the Fourth District Court of Appeal affirmed the judgment,
finding that the officer’s search for identifying documentation was
reasonable under the circumstances and that the contraband found during
the course of that search was admissible.

II.

Vehicle Code sections 4462 and 12951 long have required that the
person in the immediate control of an automobile present evidence of
registration and a driver’s license upon proper command of a peace
officer. Section 4462, subdivision (a), provides: “The driver of a motor
vehicle shall present the registration or identification card or other
evidence of registration of any or all vehicles under his or her
immediate control for examination upon demand of any peace officer.”
Section 12951, subdivision (b), provides: “The driver of a motor vehicle
shall present his or her license for examination upon demand of a peace
officer enforcing the provisions of this code.” The reason for these
provisions is plain: An officer who has stopped a vehicle for a traffic
infraction and who plans to issue a citation needs to ascertain the true
identity of the driver and the owner of the vehicle, in order to include
that information on the citation and the written promise to appear.
(People v. McGaughran (1979) 25 Cal.3d 577, 584, fn. 5 [registration and
license “documents are . . . the source of most of the information needed
by the officer to complete the citation”].) But what action by the
officer is permissible when, upon proper demand, a motorist who has been
stopped for a traffic violation fails to produce the registration or
license documentation required by statute?

The Fourth Amendment to the United States Constitution prohibits
“unreasonable searches and seizures.” Although it is well established
that motorists have a cognizable privacy interest against unreasonable
searches and seizures, the United States Supreme Court frequently has
observed that, in light of the pervasive regulation of vehicles capable
of traveling on the public highways, individuals generally have a reduced
expectation of privacy while driving a vehicle on public thoroughfares.
(E.g., New York v. Class (1986) 475 U.S. 106, 112-113 (Class) [upholding
limited warrantless search of automobile to discover its vehicle
identification number].) The threshold question posed in the two cases
before us is this: In the context of a valid traffic stop during which a
driver fails to produce the required automobile registration, drivers’
license, or identification documentation upon an officer’s proper demand,
do the government’s regulatory needs and the reduced expectation of
privacy on the part of the driver operate to allow an officer,
consistently with the Fourth Amendment, to conduct a limited warrantless
search for such documentation?

A.

The leading case on this subject is People v. Webster (1991) 54 Cal.3d
411, 429 (Webster). There, California Highway Patrol (CHP) Officer Abbott
stopped the defendant for speeding on a freeway. In response to the
officer’s request for a driver’s license, the defendant produced only a
birth certificate. (See ante, fn. 4.) As the officer wrote out the
ticket, he asked who owned the vehicle. The defendant responded,
incongruously, that his five passengers were hitchhikers and that one of
them owned the car. The officer thereafter learned via radio that the
defendant was wanted on an outstanding warrant and placed him in the
officer’s patrol car. Upon the subsequent arrival of backup officers, the
officer returned to the stopped vehicle to ask the passengers which one
of them owned the car. After all five denied ownership, Officer Abbott
ordered the passengers out of the car, searched unsuccessfully for
registration papers in the vehicle’s glove compartment and on the sun
visor, but did not find any registration document. In the course of that
search he did notice, however, a wallet on the front seat, where one of
the passengers had been sitting. Abbott asked each of the passengers and
the defendant whether he owned the wallet. When all denied ownership,
Abbott opened the wallet to determine its ownership, then observed that
it belonged to another person. Later it was discovered that the defendant
and four of his passengers earlier that day had robbed the individual who
owned the wallet and on the preceding day had murdered another
individual.

The defendant challenged the search on the grounds that “Abbott had
neither a warrant, nor probable cause, nor justification based on exigent
circumstances.” (Webster, supra, 54 Cal.3d 411, 430.) This court upheld
the search against the defendant’s Fourth Amendment claim. We observed,
in relevant part: “At the outset, we conclude Abbott acted properly when
he . . . entered the car for the limited purpose of finding the
registration. Then, as now, the Vehicle Code allowed a CHP officer, among
others, to inspect a [registerable] vehicle and its title in order to
determine ownership. (Veh. Code, § 2805, subd. (a).)[] The
law also required the driver of a motor vehicle to produce his or her
license and registration for examination upon a peace officer’s demand.
([Veh. Code], §§ 4462, subd. (a), 12951, subd.
(b).) Within constitutional limits, such statutes authorize an officer to
enter a stopped vehicle and conduct an immediate warrantless search for
the required documents. (E.g., People v. Faddler (1982) 132 Cal.App.3d
607, 610-611; People v. Burnett (1980) 107 Cal.App.3d 795, 799-800;
Jackson v. Superior Court (1977) 74 Cal.App.3d 361, 367; People v. Martin
(1972) 23 Cal.App.3d 444, 447. . . .)” (Webster, supra, 54 Cal.3d at p.
411, 430, fns. omitted, italics added.)

We also noted in Webster that the vehicle “was validly detained on the
highway for a moving traffic violation” and that given the “uncertain
situation” concerning ownership of the car, the officer “was amply
entitled to inspect the [vehicle’s] registration to ascertain its owner
before deciding whether to release or impound the vehicle.” (Webster,
supra, 54 Cal.3d 411, 430-431.) Commenting that it was reasonable for
Abbott to order the passengers out of the vehicle and to search for the
documentation himself, we observed that “[a]t the time he saw the wallet,
Abbott was confining his search to the visor and glove compartment,
traditional repositories of auto registrations.” (Webster, at p. 431,
italics added.) We concluded: “While engaged in these appropriate
activities, Abbott saw the wallet lying in plain view in the now-empty
interior. The observation and seizure of evidence in plain view from a
position where the officer has a right to be is not constitutionally
prohibited. (People v. Rios (1976) 16 Cal.3d 351, 357 . . . .)”
(Ibid.)

Prior to and subsequent to Webster, supra, 54 Cal.3d 411, California
courts have held in analogous circumstances that it is constitutionally
proper for an officer to conduct a limited warrantless search of a
vehicle for the purpose of locating registration and other related
identifying documentation. (See cases cited in Webster supra, 54 Cal.3d
at p. 430 [quoted ante, at p. 9]; see also People v. Turner (1994) 8
Cal.4th 137, 182 (Turner); People v. Hart, supra, 74 Cal.App.4th 479,
489; People v. Miranda (1993) 17 Cal.App.4th 917, 927.)

B.

The parties focus upon two decisions of the United States Supreme
Court &endash; one issued several years prior to the 1991 decision in
Webster, supra, 54 Cal.3d 411 but not cited therein (Class, supra, 475
U.S. 106), and the other issued several years after Webster (Knowles v.
Iowa (1998) 525 U.S. 113 (Knowles)). The Attorney General asserts that
the first case, Class, supports Webster and the propriety of the searches
here at issue. Defendants contend otherwise, and argue that in any event
the second case, Knowles, undermines Webster and invalidates both
searches.

1.

In Class, supra, 475 U.S. 106, two officers stopped the defendant
driver for traffic infractions. The driver emerged from his car, closed
the vehicle’s door, and produced registration and insurance documents,
but no license. One of the officers then opened the defendant’s car door
in order to look for the vehicle identification number (VIN), which was
located on the doorjamb of cars made before 1969. Not seeing a VIN at
that location, the officer decided to look for one in the other spot
where a VIN regularly is found in more recently manufactured vehicles, on
the top of the dashboard &endash; an area normally visible from
outside a vehicle. The officer reached inside the car to remove some
papers covering that area of the dashboard, and in doing so he noticed
the handle of a gun beneath the driver’s seat. The gun was seized, and
the defendant was arrested for possession of the weapon. (Class, supra,
475 U.S. at p. 108.)

The high court upheld the warrantless search on a five-to-four vote.
All members of the court agreed that the Fourth Amendment was implicated
and that a search had occurred. All also agreed that the search was
unsupported by probable cause to believe that the car was stolen or that
it contained contraband, and that the search could not be justified under
the so-called automobile exception or any other exception to the Fourth
Amendment’s warrant requirement. It was also apparently conceded or
assumed that no other recognized exception to the warrant requirement
applied to allow the search.

In nonetheless upholding the search under a balancing test that
considered ” ‘the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion’ ” (Class, supra, 475 U.S.
106, 118), the majority emphasized, among other things, (i) the
importance of the VIN system in tracking stolen vehicles and in promoting
highway safety (id., at pp. 111-112), (ii) the generally decreased
expectation of privacy that drivers have with regard to automobiles, the
VIN in particular, and the pervasive regulatory scheme that surrounds the
use of vehicles on public roads (id., at pp. 113-114), (iii) officer
safety concerns (id., at p. 116), and (iv) the limited nature of the
search undertaken. In the latter respect, the majority observed that the
officer did not “root about the interior” of the car or “reach into any
compartments,” but that the search was instead “focused in its objective,
and no more intrusive than necessary to fulfill that objective.” (Id., at
pp. 118-119.)

Justice Brennan’s dissent in Class, supra, 475 U.S. 106, 125, argued
that “[b]ecause the Fourth Amendment constrains the State’s authority to
search automobiles under the guise of ‘regulation,’ the fact that the
Government uses the VIN as part of its scheme for regulating automobiles
is insufficient to justify a search of the passenger compartment to
retrieve such information.” (Dis. opn. of Brennan, J., joined by two
other justices, italics omitted.) Expanding on this theme, the dissenters
argued that the search was not justified in any event, because the
officer had no reason to search for the VIN &endash; the driver
having previously produced registration documentation. (Id. at pp.
127-131 (dis. opn. of Brennan, J.).)

Plainly, the high court’s majority opinion in Class, supra, 475 U.S.
106, did not address the propriety of the limited type of search here at
issue. But the majority’s reasoning and approach in approving the limited
warrantless search in Class are not inconsistent with a similar analysis
and conclusion in the context of Webster-type searches. (See 4 LaFave,
Search and Seizure (3d ed. 1996) § 9.5(e), p. 296 [“Class may
mean that in some circumstances the police may, without a reasonable
suspicion that the person is armed and presently dangerous, enter a
vehicle stopped for a traffic violation to seek out other required
documentation”].) Indeed, in at least one important respect, Webster-type
searches may be more justifiable under the Fourth Amendment, in that the
basis for a search for identification and registration documentation
preparatory to the issuance of a citation would appear to be more
compelling than the justification for a search to discover the VIN of a
vehicle for which the driver already had produced apparently valid
registration documentation. It may be questioned whether a majority of
the high court, or even the dissenters in Class, would have prohibited a
limited warrantless search when, as in the cases before us, the driver,
in response to a proper demand, professes to lack the required
documentation needed for an officer to issue a proper citation. In sum,
we conclude that the high court’s decision in Class does not impair the
general validity of Webster-type searches.

2.

As noted, defendants also question the continuing validity of limited
warrantless searches for license and registration documents under Webster
and related cases in light of the 1998 decision in Knowles, supra, 525
U.S. 113, in which the high court unanimously held that the Fourth
Amendment prohibits a full-scale warrantless search of an automobile
incident to the issuance of a traffic citation. As explained below,
absent a clear indication to the contrary from the United States Supreme
Court, we conclude that Knowles does not undermine Webster and related
case law.

In Knowles, supra, 525 U.S. 113, 114, an officer stopped the defendant
for speeding and issued a citation. Thereafter, pursuant to state
statute, the officer proceeded to conduct a full-scale warrantless search
of the vehicle for contraband. In so searching, the officer discovered a
bag of marijuana and a pipe under the driver’s seat. (Ibid.) The state
supreme court, analogizing to the full-scale warrantless search for
contraband that would be permissible pursuant to a search incident to a
custodial arrest (United States v. Robinson (1973) 414 U.S. 218 [search
of person, incident to custodial arrest]; New York v. Belton (1981) 453
U.S. 454 [search of automobile interior, incident to custodial arrest of
car occupant]), upheld the search under what was characterized as a
“search incident to citation” exception to the Fourth Amendment’s warrant
requirement. (Knowles, supra, 525 U.S. at p. 115.)

The high court held that the twin rationales supporting the search
incident to custodial arrest exception to the warrant requirement
&endash; officer safety and the need to preserve evidence for later
use at trial &endash; were not present on the facts in Knowles, in
which the driver already had been issued a citation following a routine
traffic stop. (Knowles, supra, 525 U.S. 113, 116-117.) In rejecting the
argument that a full “search incident to arrest” was justified in order
to discover and preserve evidence, the high court observed: “Once [the
driver] was stopped for speeding and issued a citation, all the evidence
necessary to prosecute that offense had been obtained.” (Id., at p. 118,
italics added.) Addressing the state’s assertion that nevertheless a full
search of the type that would be permissible incident to a custodial
arrest also should be permissible ” ‘incident to citation’ . . . because
a suspect who is subject to a routine traffic stop may attempt to hide or
destroy evidence related to his identity (e.g., a driver’s license or
vehicle registration)” (ibid.), the court disagreed, stating that “if a
police officer is not satisfied with the identification furnished by the
driver, this may be a basis for arresting him rather than merely issuing
a citation.” (Ibid.) The court in Knowles concluded that the Fourth
Amendment does not provide the police a right to conduct a “full field
search” (ibid., italics added) incident to the issuance of a citation,
and hence found the full-scale warrantless search for contraband at issue
in that case to be improper.

Defendants assert that Knowles, supra, 525 U.S. 113, implicitly
precludes officers from conducting a warrantless search for registration
or identification documents preparatory to the issuance of a traffic
citation to a driver who fails to produce such documentation upon demand.
We believe that Knowles is distinguishable. Unlike the situation in
Webster and related decisions (and the cases presently before us), in
Knowles ¾ as the high court itself emphasized
¾ the officer in that case already had issued the driver a
citation (apparently the officer had obtained sufficient identifying
information to complete that citation), and thereafter had conducted an
unrelated full-scale warrantless search for contraband. Accordingly, the
search at issue in Knowles, unlike those at issue in Webster and related
cases (and those before us today) was not a limited one conducted for the
narrow purpose of discovering required documentation that the driver had
failed to produce upon demand and that was needed for the officer to
issue a citation.

Indeed, in Knowles, supra, 525 U.S. 113, the court repeatedly stressed
throughout its brief opinion that the issue presented was the validity of
a “full search of the car” (id., at p. 114 [twice so characterizing],
italics added), a “full-blown search” (id., at p. 115, italics added), or
a “full field search” (id., at p. 118, italics added). Absent contrary
direction from the high court, at this juncture we agree with the
Attorney General that the court in Knowles addressed itself only to the
question of allowing a full-scale warrantless search for contraband
following the issuance of a traffic citation, and that the court did not
address (nor do we read its opinion to cast doubt upon) the longstanding
authority, established under California law as well as federal and sister
state decisions, permitting a police officer to conduct under certain
circumstances a limited warrantless search of a vehicle for required
regulatory documentation, prior to issuing a traffic citation.

III.

We proceed to address whether the warrantless searches here at issue
were proper under the Fourth Amendment.

A. Arturo D.

Arturo first asserts that Officer Rowe had no reason to enter the
vehicle to search for registration because, Arturo claims, the record
discloses that the trial court found that he earlier had given the
registration to the officer. The record does not support this reading. At
one point during direct examination, the officer testified that when he
asked Arturo for his license and registration, Arturo produced neither
item. Thereafter, during cross-examination, the officer testified that he
could not recall whether Arturo had produced the requested documentation.
Still later, following further discussion concerning the evidence on this
point, and in response to defense counsel’s argument that Officer Rowe
had no right to be where he was or to search, the trial court interrupted
defense counsel and asserted: “There’s no suggestion that the officer was
doing anything other than looking for documents of title and driver’s
identification.” (Italics added.) To this, defense counsel replied,
“That’s right.” The trial court immediately responded, “That’s what he
said.”

This constitutes a finding by the trial court that when the officer
searched the car, he was looking for both registration and driver
identification. Of course, “the power to judge the credibility of the
witnesses, resolve any conflicts in the testimony, weigh the evidence and
draw factual inferences, is vested in the trial court. On appeal all
presumptions favor the exercise of that power, and the trial court’s
findings on such matters, whether express or implied, must be upheld if
they are supported by substantial evidence.” (People v. Lawler (1973) 9
Cal.3d 156, 160; People v. Martin (1973) 9 Cal.3d 687, 692 [because the
trial court ruled on the suppression motion “after holding an evidentiary
hearing pursuant to the motion, all factual conflicts must be resolved in
the manner most favorable to the court’s disposition of the motion”].)
Here the trial court’s finding is supported by substantial evidence
&endash; Officer Rowe’s testimony on direct examination that when he
asked Arturo for his license and registration, Arturo produced neither.
Accordingly, we must honor the trial court’s finding that, when
conducting his search, Officer Rowe was looking for both registration and
license documentation.

Arturo also asserts that because he “candidly admitted” to Officer
Rowe that he was 16 years of age and had no license, the officer
accordingly had no right to search his vehicle for any license or other
identification. Officer Rowe was not obligated to take the driver’s word
on these matters at face value, however. When the officer prepared to
cite Arturo for a Vehicle Code violation, he had both a right and an
obligation to ascertain the driver’s true identity, to ensure that the
driver’s true name appeared on the citation and on the written promise to
appear. We conclude that Officer Rowe was entitled to enter the vehicle
to conduct a limited search for both registration and identification
documents.

Arturo next asserts that a limited warrantless search under Webster,
supra, 54 Cal.3d 411, and related cases must be confined to “traditional
repositories” such as a glove compartment or a sun visor, and that the
area under a driver’s seat is not a traditional repository for
registration or identification documents. The Attorney General, by
contrast, asserts that an officer is entitled to conduct a nonpretextual
warrantless search for such documents in those locations where such
documentation reasonably may be expected to be found.

We agree with the Attorney General. Although we observed in Webster,
supra, 54 Cal.3d 411, 431, that when the officer in that case “saw the
wallet, [he] was confining his search to the visor and glove compartment,
traditional repositories of auto registrations,” we did not thereby
restrict the scope of such a search to “traditional repositories” for
auto registration documents. Instead, we merely explained that the
officer in that case properly was searching in an area where such
documentation reasonably could be expected to be found. Neither Webster
nor any of the cases that it cited or that preceded it confined the scope
of a permissible search for documentation to such so-called “traditional
repositories.” Subsequently, in Turner, supra, 8 Cal.4th 137, 182, we
observed that the warrantless search for documents in that case, “as in
Webster,” was confined to “the glove compartment, a traditional
repository of vehicle registration.” Again, as the Attorney General
explains, “this reference to a ‘traditional repository’ [was] descriptive
rather than restrictive.”

Although, as noted above, the United States Supreme Court has not
specifically approved or defined the scope of a warrantless search of a
vehicle for registration or identification documentation, our conclusion
that under certain circumstances limited searches for required regulatory
documentation are permissible in those locations where such documentation
reasonably may be expected to be found, appears to be consistent with the
high court’s decision in Class, supra, 475 U.S. 106, upholding a
warrantless limited search to allow an officer to observe a car’s VIN
during a stop following a traffic violation.

Our conclusion is also consistent with general Fourth Amendment case
law concerning the scope of permissible searches (e.g., Michigan v. Long
(1983) 463 U.S. 1032, 1049 [protective search of passenger area of
automobile is “limited to those areas where a weapon may be placed or
hidden”]), and as noted above it is consistent with a number of prior
California cases (see ante, at pp. 7-10) as well as cases from other
jurisdictions (see ante, fn. 16). Finally, our conclusion also parallels
the view of noted Fourth Amendment scholar Wayne R. LaFave, who, citing
and describing Webster, supra, 54 Cal.3d 411, and Turner, supra, 8
Cal.4th 137, states: “Under a variety of circumstances, it is reasonable
for the police to make a limited search of a vehicle in an effort to
determine ownership. . . . [¶] . . . The better view is that
if the driver has been given an opportunity to produce proof of
registration but he is unable to do so, and even if he asserts that there
is no such proof inside the car, the officer is not required to accept
such an assertion at face value, at least when his ‘previous conduct
would . . . cast doubt upon his veracity’; at that point, the officer may
look for registration papers ‘on the dashboard, sun visor and steering
column’ and, if not found in those places or seen in plain view, in ‘the
glove compartment,’ all ‘places where it reasonably may be found.’ ” (3
LaFave, Search and Seizure, supra, § 7.4(d), pp. 566-567,
italics added, fns. omitted; see also id., p. 567, fn. 131.)

We proceed to apply this standard to the facts of this case. As the
Attorney General suggests in his briefs, some persons who are stopped for
traffic violations may not wish to provide an officer with valid
documentation showing the driver’s true name or identity, or showing the
name of the vehicle’s owner. Some drivers who wish to avoid disclosing
such documentation to the police may keep the documents under the
driver’s seat and yet disclaim their existence. Indeed, at the
suppression hearing, the prosecutor argued that “it’s not uncommon that
people will shove their driver’s license or their wallets underneath the
seat while they’re driving.” The Attorney General argues that police
officers, knowing this, reasonably may expect to find a wallet, or
identification, or registration documents, under a driver’s seat.

We conclude that case law supports the Attorney General’s view.
Although Arturo asserts that he was able to find only one case in which a
wallet was found under a driver’s seat, in fact numerous published
appellate decisions report that drivers’ wallets (and hence, often,
identification) have been located under the front seats of vehicles.
(E.g., People v. Barrick (1982) 33 Cal.3d 115, 121 [driver’s wallet found
under driver’s seat]; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
582, 587 [driver’s wallet found under front seat]; People v. Bauer (1969)
1 Cal.3d 368, 372 [driver retrieved his wallet from under driver’s seat];
People v. Alvarez (1996) 49 Cal.App.4th 679, 685 [driver’s wallet found
under driver’s seat]; Ingle v. Superior Court (1982) 129 Cal.App.3d 188,
192 [driver’s wallet found under driver’s seat]; People v. Goss (1980)
109 Cal.App.3d 443, 449 [defendant’s wallet found under front seat];
People v. Bundesen (1980) 106 Cal.App.3d 508, 510 [defendant’s wallet
found under front passenger seat, where defendant had been sitting];
People v. Bracamonte (1967) 253 Cal.App.2d 980, 982 [driver’s wallet
found under driver’s seat]; People v. Williams (1965) 235 Cal.App.2d 389,
393 [driver placed his wallet under front seat before exiting from car].)
Indeed, in People v. Hinger, a wallet containing the driver’s
identification was found under the front seat of the vehicle (in that
case, the front passenger seat).

Published decisions of other state and federal courts also report
numerous instances of drivers’ wallets being found under the front seats
of vehicles. (E.g., United States v. Dento (3d Cir. 1967) 382 F.2d 361,
363 [driver’s wallet found under front seat]; Mallet v. Bowersox (8th
Cir. 1998) 160 F.3d 456, 457 [driver’s wallet found under front seat];
Cotton v. United States (9th Cir. 1967) 371 F.2d 385, 389-390 [driver’s
wallet found under front seat]; United States v. McCurdy (10th Cir. 1994)
40 F.3d 1111, 1113 [defendant’s wallet found under front seat]; United
States v. Gerlach (E.D.Mich. 1972) 350 F.Supp. 180, 182 [driver’s wallet
found under front seat]; United States v. Spitalieri (N.D. Ohio 1975) 391
F. Supp. 167, 170 [defendant’s wallet found under front seat]; United
States v. Day (E.D. Pa. 1971) 331 F.Supp. 254, 255 [driver’s wallet found
under driver’s seat]; People v. Moore (Colo. 1995) 900 P.2d 66, 68
[wallet of defendant, a car passenger, found under front passenger seat];
Lewis v. State (Fl.Dist.Ct.App. 1998) 711 So.2d 205, 206 [defendant’s
wallet found under front seat]; People v. Jackson (Ill.App.Ct. 1987) 511
N.E.2d 923, 924 [defendant found victim’s wallet under driver’s seat in
course of robbing him]; Huey v. State (Ind.Ct.App. 1987) 503 N.E.2d 623,
625 [driver’s wallet found under driver’s seat]; Commonwealth v. Ellis
(Mass.Ct.App. 1981) 427 N.E.2d 1179, 1182 [driver’s license found under
front seat]; People v. Johnson (N.Y.App.Div. 1994) 614 N.Y.S.2d 442, 443
[defendant’s wallet found under front seat]; State v. Hurd (S.C.Ct.App.
1996) 480 S.E.2d 94, 96 [“[u]nderneath the driver’s seat, the deputies
found a wallet containing Hurd’s Georgia driver’s license, Hurd’s North
Carolina identification card, some money, and a speeding ticket issued to
Hurd in Lancaster County approximately four hours earlier”]; State v.
Mitzlaff (Wash.Ct.App. 1995) 907 P.2d 328, 329 [driver’s wallet found
under driver’s seat].)

These citations amply support the observation that “persons trying to
hide their identity will often put their wallets underneath the seat.”
(State v. Gordon (Or.Ct.App. 1991) 821 P.2d 442, 443; see also, e.g.,
Mallet v. Bowersox, supra, 160 F.3d 456, 457 [as police officer
approached the vehicle, the defendant “hid his wallet and identification
under the front seat”; when the officer arrived at the side of the
vehicle and requested the driver’s license, the defendant “replied that
he did not have his license with him and falsely claimed to be Anthony
Mallett,” his own brother].) We conclude that in the circumstances of
this case, the area under Arturo’s seat was a location where registration
or identification documentation reasonably might be expected to be
found.

Arturo insists that even if it is generally reasonable to search for
identification or registration documents under the driver’s seat, Officer
Rowe exceeded the permissible scope of a proper limited search for such
documents because he searched an area that the driver could not easily
reach and conducted the search from behind the driver’s seat. For the
reasons that follow, we disagree.

As noted above, Officer Rowe first attempted to search under the seat
from the front area of the truck’s cab &endash; he reached blindly
with his hand under the seat, but felt nothing. Immediately thereafter,
the officer approached the same general area beneath the seat from a
different vantage point, behind the driver’s seat of the truck’s extended
cab, in a position that allowed him not only to feel, but also to view,
the area under the seat. As the Attorney General observes, the space
behind the truck’s driver’s seat would have afforded the officer an
opportunity to inspect beneath the seat without restriction from the
steering wheel and pedals, etc. At that point, Officer Rowe noticed and
seized the pipe and the box in the middle of the area under the driver’s
seat.

Arturo asserts there is no evidence that this area was “easily
accessible” to a driver from the front, or that it could be reached from
the front. Initially, we note that the circumstance that a driver might
deposit his or her wallet under the driver’s seat from the front, while
seated, does not necessarily mean that the driver plans to retrieve that
wallet from a sitting position within the cab of the vehicle, instead of,
for example, retrieving it from a position standing outside the open
door. (See People v. Bauer, supra, 1 Cal.3d 368, 372 [“After a request
for his registration,” the defendant, from outside the car, “reached
beneath the front seat and pulled out the folder portion of a wallet and
extracted an expired, temporary driver’s license”].) Moreover, there is
no evidence that the area searched was not in fact accessible from the
front, easily or otherwise, and Officer Rowe testified that he was
searching the area that he believed “would . . . be in control of the
driver, which would be the front area.” Finally, even if the area
searched was not easily accessible from the front, this factor would not
be determinative. Items placed under a car seat can shift as the car
moves, and an item, such as a wallet, placed originally in an easily
accessible position near the front of a seat, may, through the movements
of the car, migrate to another location under that seat. In this regard,
there is no evidence that the floor area under the driver’s seat was
partitioned, so as to prevent items placed under the seat in the front
from gravitating toward the center area under the seat. We agree with the
Attorney General that although the prospective reach of a driver in
relation to the location searched is a factor that can be considered in
evaluating the reasonableness of the search, it is not determinative.

Nor do we find Officer Rowe’s decision to conduct the search from a
vantage point behind the driver’s seat to be unreasonable. We agree with
the Attorney General that “an officer may conclude based upon a variety
of factors such as the size of the vehicle, the size of the door opening,
the height of the vehicle off the ground, and the positioning of the seat
in relation to the steering wheel and pedal, that viewing the area under
the driver’s seat is more easily and reasonably accomplished from behind
the driver’s seat rather than from the front seat.”

We reject Arturo’s suggestion that allowing the limited search here at
issue to be conducted from the more efficient vantage point of behind,
rather than in front of, the seat constitutes a violation of his Fourth
Amendment rights. For example, although it is accepted that an officer
under proper circumstances reasonably may search for documentation in a
glove compartment, and might gain such access from the driver’s seat
area, an officer alternatively, and just as reasonably, may gain such
access by opening the front passenger door and searching from that
vantage point, rather than restricting his or her entry and positioning
to the driver’s side of the vehicle. (E.g., People v. Faddler, supra, 132
Cal.App.3d 607, 609.) We agree with the Attorney General that “once the
officer is entitled to enter the car and look in the area under the
driver’s seat, the act of positioning his or her head behind the seat and
looking forward constitutes no greater intrusion and implicates no
greater expectation of privacy than positioning his or her head in front
of the seat and looking backward. [¶] Moreover, artificially
limiting the vantage point of an officer to essentially the driver’s
physical space, namely the area in front of the driver’s seat, places an
unjustified and potentially dangerous burden on the officer. If an
officer is entitled to search under the driver’s seat but is unable to
safely position himself to view that area due to the presence of the
steering column and pedals, his only option is to use his hand to blindly
feel under the driver’s seat or abandon an otherwise justified
search.”

In sum, the controlling question is whether the officer lawfully was
entitled to search the location where he was looking. We conclude that it
was reasonable for Officer Rowe to view the area underneath the driver’s
seat. The search was not rendered improper merely because the officer
elected to view that area from behind the driver’s seat. And if, as here,
the officer observes contraband in plain view while conducting a proper
limited search for regulatory documents, the contraband properly may be
seized. (Webster, supra, 54 Cal.3d 411, 431, and cases cited.)

Finally, Arturo asserts that Officer Rowe’s search was unreasonable
because the nature and quality of the intrusion on his Fourth Amendment
interests outweighed the importance of the governmental interests alleged
to justify the intrusion. (See Class, supra, 475 U.S. 106, 118.) Arturo
emphasizes that he gave Officer Rowe identifying information &endash;
a name, an address in Vallejo, and a date of birth &endash; and
accordingly, he argues, no important government interest justified or
outweighed the ensuing intrusion upon his Fourth Amendment rights. The
record establishes, however, that the officer stopped defendant in Suisun
City, more than 17 miles from the Vallejo address given; it was 11:30
p.m., and the driver, a minor, admitted that the truck belonged neither
to him nor to his passengers. The driver was unable to provide Officer
Rowe with a driver’s license or other documentation of his identity, and
as the court found, the driver also failed to provide the officer with
vehicle registration documentation. Officer Rowe reasonably decided to
have the car towed. Prior to actually issuing the traffic citation, the
officer decided to conduct a limited search in an area where he
reasonably could expect to find the missing but required documentation.
It is apparent that at that point Officer Rowe was attempting to
determine for himself whether registration information concerning the
vehicle’s owner was available inside the vehicle, and also was attempting
to verify and ascertain the driver’s identity (and, indeed, whether he in
fact was licensed as a driver), so that the citation could be issued in
the driver’s true name and show his true address. Under these
circumstances, the officer’s decision to conduct a limited search for
registration and identification documents was reasonable, and the
contraband found in plain view during the course of that limited search
was properly obtained under the Fourth Amendment and not subject to
exclusion.

The Court of Appeal below reached a contrary conclusion, finding
instead that “the scope of the officer’s intrusion went beyond that
justified by the need to locate registration [or other identifying]
documents and accordingly, it was unreasonable as a search for
registration [or other identifying] documents.” In support of its view,
the court asserted as follows: (1) “[T]he problem with this search is
that the officer testified that he first searched the area ‘in control of
the driver, which would be in the front area.’ . . . It was only when
Officer Rowe positioned himself behind the bench seat that the pipe was
visible”; (2) “[W]e cannot say that the scope of a search for
registration or identification documents in the cab of a pickup
reasonably extends to virtually all areas in the physical proximity of
the driver”; (3) “The officer did not testify that he was concerned for
his personal safety and was searching for weapons”; and (4) “Nor did [the
officer] testify that the area below the driver’s seat could even be
reached by the driver with or without the rear seat in use.”

With regard to the Court of Appeal’s first point &endash; that
Officer Rowe testified he was searching the area within the driver’s
control, “which would be in the front area,” but conducted that search
from behind the driver’s seat &endash; as we have explained above,
the search was not improper merely because the officer elected to
undertake it from behind the driver’s seat rather than from in front of
the driver’s seat. Nor do we agree with the Court of Appeal’s implication
that approving the search here at issue would condone searches for
required documentation of “virtually all areas in the physical proximity
of the driver.” As explained above, the scope of such a search is
circumscribed, being limited to places where such documentation
reasonably could be expected to be found.

Nor do the Court of Appeal’s other two points support a contrary
conclusion. It is insignificant that Officer Rowe failed to testify to
any suspicion that the driver was armed, because the officer undertook
the search in order to find required documentation. Pursuant to Webster,
supra, 54 Cal.3d 411, and related cases, the limited search here at issue
was justified on that basis alone. Finally, the Court of Appeal’s
assertion that Officer Rowe did not testify that the area below the
driver’s seat could be reached is problematic as a factual matter on this
record, and in any event, as we explained ante, at pages 25-26, whether
the searched area was or was not easily within reach of the driver while
positioned in the driver’s seat is a factor to be considered in
determining the reasonableness of a limited search for documentation, but
is not a dispositive factor.

Accordingly, we conclude in Arturo D. (S085213) that the trial court
properly denied the suppression motion, and that the Court of Appeal
erred in determining otherwise.

B. Hinger

Defendant Hinger asserts that the area underneath a front passenger
seat is not a traditional repository of registration or identification
documentation, and that pursuant to the Attorney General’s proposed test,
the “entire car and all of its compartments” might be subject to a
Webster-type search for required documentation, in violation of the
teaching of Knowles, supra, 525 U.S. 113.

As noted above, the dispositive question is not whether the area
searched is a traditional repository for registration or identification
documentation. Limited warrantless searches for required registration and
identification documentation are permissible when, following the failure
of a traffic offender to provide such documentation to the citing officer
upon demand, the officer conducts a search for those documents in an area
where such documents reasonably may be expected to be found. Under this
standard, an officer may not search for such documents on pretext (cf.
Class, supra, 475 U.S. 106, 122, fn. * (conc. opn. of Powell, J.) [“An
officer may not use VIN inspection as a pretext for searching a vehicle
for contraband or weapons”]), or without first demanding that they be
produced (see United States v. Lopez (C.D.Cal. 1979) 474 F.Supp. 943,
948-949 [search was unreasonable when officer never asked driver for such
documentation and ignored plainly visible registration information posted
in car window]), and an officer may not search in containers or locations
in which such documents are not reasonably expected to be found. (Ibid.
[search of crumpled fast-food bag under seat]; State v. Acosta, supra,
801 P.2d 489, 493 [search for registration in enclosed “rear interior
compartment”].) We emphasize that the standard we reaffirm today
circumscribes the scope of a Webster search for documents, and, contrary
to defendant Hinger’s assertion, does not threaten to condone the
equivalent of the full-scale search for contraband prohibited by the high
court in Knowles, supra, 525 U.S. 113.

Defendant Hinger was unable to produce the required registration or
license documents upon Officer Skinner’s reasonable demand. Hinger
appears to suggest that such documentation would not reasonably be
expected to be found under a front passenger seat, but on the facts of
this case Officer Skinner had reason to extend marginally his search for
Hinger’s wallet. As noted, the officer had seen Hinger look into the
glove compartment (an area directly above the front passenger seat), and
the officer reasonably might have thought that while Hinger was doing so,
Hinger had managed to place the wallet under the front passenger seat.
(Cf. Mallet v. Bowersox, supra, 160 F.3d 456, 457 [driver hid his wallet
and identification under the front seat as officer approached vehicle].)
Moreover, the cases cited ante, at pages 23-24, in which wallets (which,
we note, often contain a driver’s license or other identification or
documentation) were found under driver’s seats, passenger seats, and
“front seats” generally, suggest that the area underneath front car seats
(including front passenger seats) is not an unusual place to store such
items.

On these facts, and in view of the circumstance that Officer Skinner
was preparing to issue a traffic citation and therefore needed to learn
the true identity of the person to be cited, we believe it was reasonable
for the officer to conduct a limited search of the glove compartment, the
area underneath the driver’s seat, and the area beneath the front
passenger seat. (People v. Miranda, supra, 17 Cal.App.4th 917, 927.)

Accordingly, we conclude in People v. Hinger (S085218) that the Court
of Appeal correctly determined that the trial court properly denied the
defendant’s suppression motion.

IV.

The judgment of the Court of Appeal in People v. Arturo D. (S085213)
is reversed, and the judgment of the Court of Appeal in People v. Hinger
(S085218) is affirmed.

GEORGE, C.J.

WE CONCUR:

BAXTER, J.

CHIN, J.

MORENO, J.

CONCURRING AND DISSENTING OPINION BY WERDEGAR,
J.

The situation is a common one: a police officer stops a driver with
the intention to issue a traffic citation for an infraction under state
law. We address in this case the question whether an officer making such
a stop may conduct a warrantless search of the driver’s vehicle without
violating the driver’s right to be free of unreasonable searches and
seizures under the Fourth Amendment to the United States Constitution.
The United States Supreme Court has established several ground rules for
warrantless vehicle searches: An officer may search a car if he or she is
arresting the driver (New York v. Belton (1981) 453 U.S. 454), or if
probable cause exists to believe the car contains evidence of a crime or
contraband (Maryland v. Dyson (1999) 527 U.S. 465 (per curiam); Carroll
v. United States (1925) 267 U.S. 132, 153, 155-156); subject to certain
conditions, police also may search a car to inventory its contents when
they are impounding it (South Dakota v. Opperman (1976) 428 U.S. 364). It
is unconstitutional, however, for a state, by statute, to authorize
vehicle searches incident to a traffic citation when no arrest is made.
(Knowles v. Iowa (1998) 525 U.S. 113.)

Unlike both the majority and dissent in this case, I find that whether
an officer also may undertake some type of vehicle search when the driver
stopped for a traffic infraction is unable to present a valid driver’s
license (Veh. Code, § 12951, subd. (b)) or proof of
registration as required by state law (§ 4462, subd. (a)) are
two different matters subject to different analyses and rules. As I
explain, I concur in the majority’s opinion insofar as it authorizes
warrantless searches of “traditional repositories” for proof of a
driver’s vehicle registration. I dissent, however, insofar as the
majority holds that the space beneath the driver’s seat is a traditional
repository or an otherwise reasonable place to look for a registration
document. I dissent also from the majority’s holding that an officer
constitutionally can search a vehicle for a driver’s license.

I

Section 2805, subdivision (a) provides that “[f]or the purpose of
locating stolen vehicles, [police] may inspect the title or registration
of vehicles, in order to establish the rightful ownership or possession
of the vehicle.” (See also §§ 4000, subd. (a)
[illegal to drive a vehicle unless it has been registered], 4454, subd.
(a) [owners must maintain registration card with the vehicle].) Section
2805 thus reflects a legislative intent to permit police officers to
determine whether the driver is the rightful owner of a vehicle or,
alternatively, whether the vehicle has been stolen. Permitting police to
conduct a limited search of the traditional locations within a vehicle
where drivers normally keep registration documents is consistent with the
high court’s decision in New York v. Class (1986) 475 U.S. 106, where the
court held the overwhelming importance of vehicle identification numbers
(VIN’s) in the scheme for identifying vehicles on the road justified the
minor intrusion in that case. We so held in People v. Webster (1991) 54
Cal.3d 411, noting the officer in that case limited his search “to the
visor and glove compartment, traditional repositories of auto
registration.” (Id. at p. 431.)

I agree the glove compartment and visor (and, in days past, the
steering column) are traditional repositories for vehicle registration
documentation, and an officer, faced with a driver who does not produce
the required registration, is permitted under the United States
Constitution to conduct a limited search of those locations in an attempt
to obtain such information. The small intrusion caused by such limited
searches is not much different than that occasioned by the VIN search
approved by the high court in New York v. Class, supra, 475 U.S. 106.
Were that the extent of the majority’s rule, I would concur without
comment. But nothing in either New York v. Class or People v. Webster,
supra, 54 Cal.3d 411, authorizes police to conduct a warrantless search
for a vehicle’s registration documents outside these limited areas. As
the dissent explains, failure to place limits on such searches runs the
risk of obliterating the rule requiring that exceptions to the Fourth
Amendment’s warrant requirement be narrow and well delineated. To the
extent the majority holds that the space beneath the driver’s seat
(Arturo D.) as well as under the front passenger seat (Hinger) are
locations in which a person normally or traditionally keeps his or her
auto registration or, indeed, are places where the registration might
reasonably be expected to be found, I disagree; I therefore conclude the
officers in question were not authorized to search in those locations
without probable cause to believe they would discover contraband.

II

Notwithstanding the majority’s conflation of registration
documentation and a driver’s license as “regulatory documentation” (e.g.,
maj. opn., ante, at pp. 17, 20), a driver’s license differs from a
vehicle registration document and requires a different analysis. A driver
is required by law to carry a valid driver’s license (§
12951, subd. (a)) and to present it to a police officer upon demand (id.,
subd. (b)). Failure to do so is an infraction. (§ 40303.5.)
But nothing&endash;not the Constitution, nor any statute, nor the
cases cited by the majority&endash;authorizes police to conduct a
warrantless vehicle search in an attempt to discover the license of a
driver who asserts he or she does not have it in the car. Nor does common
sense support the majority’s analysis. Driver’s licenses of themselves,
unlike registration papers, are not traditionally placed on visors or in
glove compartments, much less under seats. The most “traditional
repository” of a driver’s license is an individual’s wallet, usually worn
on his person if a man, or carried in her purse if a woman. Given this
fact, consistency would require the majority likewise to sanction a
patdown search of a male driver, or a search of a female driver’s purse,
to search for his or her wallet and, finding a wallet in either place,
would further authorize the officer to open and inspect its contents.
Clearly this is not the law.

Nor does any asserted need to identify the driver support the
majority’s rule. By what logic would a police officer believe that
searching a vehicle for a person’s driver’s license would be fruitful
when the driver has just informed the officer that he does not have a
license in his possession? In neither case before the court, nor in any
case of which I am aware, did the officer’s search yield the license the
driver declared he was without. (Cf. People v. Webster, supra, 54 Cal.3d
at p. 431 [where this court observed that the officer who searched the
vehicle for registration papers “had every reason to believe that the
occupants, who disclaimed ownership, would not be able to find or produce
the registration on their own”]; accord, People v. Turner (1994) 8
Cal.4th 137, 182.) Is it reasonable to believe that a
driver&endash;just stopped by police for violating a traffic
law&endash;has actually secreted his driver’s license somewhere in
the car and prefers to deny its presence and risk arrest rather than
produce it and hope for release pursuant to a traffic citation? The
majority’s assertion that taking the driver at his word and therefore
subjecting him to arrest with its attendant inconveniences would subject
the driver to “considerably greater intrusion” than would the search the
majority authorizes, and that such a search is ” ‘most logically
calculated to get [the driver] on his way and the officer back to
ferreting out more serious criminals in the least amount of time’ ” (maj.
opn., ante, at p. 17, fn. 17), is patently fallacious&endash;unless,
of course, the majority is speaking only of forgetful drivers who have
their licenses, but have forgotten that they do. More realistically, if a
law-abiding driver has proper identification he will produce it; if, on
the other hand, as in the cases before us, the driver states he lacks the
requested license, either he in fact does lack it or the information is
in some way incriminating. But that criminals stopped for traffic
infractions might occasionally lie about having a license in their
possession is insufficient reason to carve out, as the majority does, a
blanket exception to the warrant requirement to authorize police officers
to conduct warrantless vehicle searches in all cases where stopped
drivers profess to be without their licenses.

The purpose of requiring a driver to present a license is to assure a
citation is not being issued to a ” ‘phantom.’ ” (Maj. opn., ante, at p.
32, fn. 27.) If the driver fails to produce a license, the officer has
several choices: run the driver’s name on the computer in an attempt to
determine his or her true identity (as the officer did in Hinger via his
police radio), ask the driver to submit a thumbprint (§
40500, subd. (a)), accept other evidence of identification (§
40302, subd. (a)), or arrest the driver (ibid.; see Knowles v. Iowa,
supra, 525 U.S. at p. 118). All these options address the concern that
the officer know to whom he or she is issuing the traffic citation,
thereby providing some guarantee the infractor will appear in court or
pay the required fine. No court has ever sanctioned the alternative the
majority endorses here: searching the driver’s vehicle (and by logical
implication, the driver’s person) for the missing driver’s license. To
the extent the majority endorses such warrantless searches, I
dissent.

WERDEGAR, J.

DISSENTING OPINION BY KENNARD, J.

With a few well-established exceptions, the federal Constitution’s
Fourth Amendment prohibits a warrantless search without probable cause,
as determined by the totality of circumstances known to the officer
conducting the search. Today, the majority’s unprecedented decision
creates a new exception allowing warrantless vehicle searches when a
motorist stopped for a minor traffic violation cannot produce either a
driver’s license or the vehicle’s registration. This holding flies in the
face of Knowles v. Iowa (1998) 525 U.S. 113, in which a unanimous United
States Supreme Court refused to except from the Fourth Amendment’s
warrant requirement a vehicle search incident to citing or ticketing the
driver for a traffic offense.

The majority insists such warrantless searches are “limited” to areas
within a car where identification documentation might reasonably be
found. (Maj. opn., ante, p. 2.) Yet the facts of the two cases here
suggest otherwise. In one case the officer reached behind and under a
truck’s bench seat, and in the other the officer searched underneath the
front passenger seat. The majority would go even further. It favors
warrantless trunk searches for documentation when the officer has
“specific information” that those documents “reasonably may be” found in
the trunk. (Maj. opn., ante, p. 30, fn. 25.) The majority’s new rule may
well result in limitless searches throughout a vehicle whenever a driver
cannot produce the requisite documentation. Because the scope of these
warrantless searches weakens the Fourth Amendment’s protection “against
unreasonable searches and seizures,” I dissent.

I.

After granting review in these two cases, this court consolidated them
to decide the validity of warrantless police searches of vehicles during
routine traffic stops.

A. In re Arturo D.

Minor Arturo D. moved to suppress evidence seized during a search of
the extended cab pickup truck he was driving on August 26, 1998.

Suisun City Police Officer Michael Rowe testified at the suppression
hearing that while patrolling Highway 12 he stopped Arturo for speeding.
When Officer Rowe asked Arturo for his driver’s license, Arturo said he
did not have one, but he gave his full name, date of birth, and home
address. Officer Rowe stated on direct examination that Arturo did not
produce the registration for the truck. But on cross-examination, Rowe
was not so sure, saying he could not recall whether Arturo had given him
the truck’s registration, but that Arturo “might have.” Rowe remembered,
however, that Arturo said the pickup truck did not belong to him. Rowe
never suggested at the suppression hearing that he ever suspected the
truck was stolen.

“Just to confirm that there was no identification on [Arturo] or in
his vehicle,” Officer Rowe did a patdown search of Arturo, after which he
searched the truck. Initially, Rowe reached in through the driver’s door
and ran his hand under the front area of the driver’s seat, but finding
nothing there he leaned into the area behind the driver’s seat and looked
under that seat. There, Rowe saw a glass smoking pipe and a small blue
box, which upon further examination proved to contain traces of a white
powdery substance. Believing that the amount of the substance was
“unusable,” Rowe intended only to cite Arturo for speeding and for
driving without a license. Rowe explained that because Arturo was an
unlicensed driver, Rowe could not release the truck to him, but had to
have it towed. Arturo agreed to go with Rowe to the police station to
telephone someone who could pick him up. At the station, Officer Rowe
took a closer look at the seized blue box and uncovered a false bottom
concealing a plastic baggie containing a usable quantity of
methamphetamine.

In contending that the search of the truck did not violate the Fourth
Amendment, the prosecution stated it was not seeking to justify the
search as being “incident to the arrest” of Arturo, who was not under
arrest at the time of the search of the truck. Rather, the prosecutor
sought to uphold the search on the ground that Officer Rowe could
properly search the truck for Arturo’s identification and the truck’s
registration. The trial court agreed and denied Arturo’s suppression
motion. On Arturo’s appeal, the Court of Appeal reversed.

B. People v. Hinger

Defendant Randall Hinger moved to suppress a wallet and its contents
seized during a warrantless search of his car. At the suppression
hearing, Officer Robert Skinner of the City of Orange Police Department
testified that on August 20, 1997, he stopped Hinger for making an unsafe
lane change. Hinger told the officer he did not have his driver’s license
with him and did not have registration documentation for the car, which
he was “in the process of purchasing.” Hinger gave the officer his name.
Officer Skinner then contacted police dispatch personnel to ascertain
whether Randall Hinger was a licensed driver and whether Hinger or
someone else was the car’s registered owner.

While awaiting that information, Officer Skinner asked Hinger, who had
stepped out of the car, for permission to search the car. When Hinger
refused to give consent, Officer Skinner said he would search anyway to
look for registration and identification. Hinger replied that his wallet
might be in the glove compartment, which was ajar. Officer Skinner opened
the passenger door and reached into the glove compartment, but found no
wallet, no identification, and no registration. Skinner then went to the
driver’s side of the car, opened the door, and looked under the driver’s
seat. Finding nothing, he returned to the passenger side, looked under
the front seat, and saw a wallet. Inside the wallet were a checkcashing
card bearing Hinger’s picture and a clear plastic baggie containing a
white powdery substance resembling methamphetamine. Officer Skinner
confirmed at the suppression hearing that Hinger was not under arrest
until Skinner retrieved the wallet, opened it, and found the plastic
baggie.

At the hearing, the prosecution argued that when a motorist stopped
for a traffic infraction cannot produce a driver’s license or car
registration, an officer is entitled “to look for identification and
registration anywhere inside that vehicle.” The trial court agreed, and
denied Hinger’s suppression motion. That ruling was upheld on appeal.

II.

The Fourth Amendment to the United States Constitution prohibits
“unreasonable searches or seizures” by the police. A warrantless search
is invalid “unless it falls within one of the narrow and well-delineated
exceptions to the warrant requirement.” (Flippo v. West Virginia (1999)
528 U.S. 11, 13; see also Katz v. United States (1967) 389 U.S. 347,
357.) Among those exceptions are the search of a person that is conducted
incident to arrest (United States v. Robinson (1973) 414 U.S. 218,
234-235), the search of a car’s passenger compartment incident to the
driver’s arrest (New York v. Belton (1981) 453 U.S. 454, 460), and the
search of a car when there is probable cause to believe it contains
contraband or evidence of a crime (Maryland v. Dyson (1999) 527 U.S. 465,
466; Carroll v. United States (1925) 267 U.S. 132, 153). Evidence
obtained in violation of the Fourth Amendment’s warrant requirement is
inadmissible at trial. (Mapp v. Ohio (1961) 367 U.S. 643, 655.)

Today, the majority holds that whenever a police officer detains a
motorist for a traffic infraction and the motorist fails to produce a
driver’s license or car registration, the officer may search those areas
of the vehicle where such documentation “reasonably may be expected to be
found.” (Maj. opn., ante, p. 2.) This holding does not fit any of the
narrow and well-delineated exceptions to the warrant requirement that the
United States Supreme Court has recognized. Worse still, it directly
conflicts with the high court’s unanimous decision in Knowles v. Iowa,
supra, 525 U.S. 113 (Knowles).

Knowles concerned the validity of a search conducted under an Iowa
statute allowing a police officer with “cause to believe” that a motorist
had committed a traffic violation either to make an arrest and
“immediately take the person before a magistrate,” or to “issu[e] a
citation in lieu of arrest.” (Knowles, supra, 525 U.S. at p. 115.) Iowa
law further provided that the officer’s decision to issue a citation
instead of arresting the traffic offender did ” ‘not affect the officer’s
authority to conduct an otherwise lawful search.’ ” (Ibid.) The officer
who had cited Knowles for speeding searched the car and found “a bag of
marijuana and a ‘pot pipe’ ” under the driver’s seat. (Id. at p. 114.)
The trial court, relying on the Iowa statute allowing a search incident
to citation, denied Knowles’s suppression motion. The Iowa Supreme Court
upheld the search, reasoning that “so long as the arresting officer had
probable cause to make a custodial arrest, there need not in fact have
been a custodial arrest” before the officer could search the car. (Id. at
pp. 115-116, italics added.)

The United States Supreme Court granted certiorari to determine
whether the search of Knowles’s car fit an exception to the warrant
requirement similar to the one allowing a search of a person incident to
arrest (United States v. Robinson, supra, 414 U.S. at pp. 234-235), or a
search of a car’s interior area incident to arresting its driver (New
York v. Belton, supra, 453 U.S. at p. 460). The court noted the
“historical rationales” underlying the search-incident-to-arrest
exceptions: (1) the need to disarm the person to be taken into custody,
and (2) the need to preserve evidence. (Knowles, supra, 525 U.S. at p.
116.) Neither, the court observed, is present when an officer searches a
car incident to citing a person for a traffic violation. (Id. at p.
117.)

The high court noted that the “threat to officer safety from issuing a
traffic citation” where the suspect is not being transported is “a good
deal less than in the case of a custodial arrest.” (Knowles, supra, 525
U.S. at p. 117.) Officers conducting routine traffic stops have “other,
independent bases to search for weapons and protect themselves from
danger,” such as ordering the driver and any passengers out of the car,
performing a ” ‘patdown’ of a driver and any passengers upon reasonable
suspicion that they may be armed and dangerous,” and conducting a limited
search inside the car “upon reasonable suspicion that an occupant is
dangerous and may gain immediate control of a weapon.” (Id. at pp.
117-118.)

Turning to the second historical justification for the
search-incident-to-arrest exception to the warrant requirement — the
need to discover and preserve evidence — the court observed that
“[o]nce Knowles was stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had been obtained.”
(Knowles, supra, 525 U.S at p. 118.) “No further evidence of excessive
speed was going to be found either on the person of the offender or in
the passenger compartment of the car.” (Ibid.)

In sum, because in the case of a traffic citation “the concern for
officer safety is not present to the same extent [as with an arrest] and
the concern for destruction or loss of evidence is not present at all,”
the United States Supreme Court invalidated the search of Knowles’s car
incident to a citation for speeding. (Knowles, supra, 525 U.S. at p.
119.)

Unlike Iowa’s statutory scheme that was before the high court in
Knowles, no California statute authorizes a police officer to search a
car incident to a traffic citation. California’s statutory law is similar
to Iowa’s, however, in granting police in most cases involving minor
traffic offenses the discretion either to cite or arrest the driver. (See
Veh. Code, §§ 40302, 40500.) And our statutory
scheme requires a driver to carry a driver’s license and to have the
car’s registration in the car. (Veh. Code, §§
4462, subd. (a), 12951.) The failure to produce either upon the request
of an officer is an infraction. (Veh. Code, § 40000.1; People
v. Superior Court (Simon) 7 Cal.3d 186, 193-195.)

Today, the majority holds that when an officer detains a driver for a
suspected traffic offense and the driver fails to produce a driver’s
license or the vehicle’s registration, the officer, even though not
intending to arrest the driver either for the traffic offense or for the
failure to produce the required documentation, can nonetheless conduct a
“limited warrantless search[]” for these documents “within a vehicle.”
(Maj. opn., ante, p. 2.) In doing so, the majority writes into California
law essentially the same search-incident-to-citation authority that Iowa
created by statute and that the United States Supreme Court rejected in
Knowles, supra, 525 U.S. 113.

There, in responding to Iowa’s argument that car searches incident to
issuing traffic citations could be justified because drivers “may attempt
to hide or destroy” evidence of identity such as “a driver’s license or
vehicle registration,” the high court pointed out that “if a police
officer is not satisfied with the identification furnished by the driver,
this may be a basis for arresting him rather than merely issuing a
citation.” (Knowles, supra, 525 U.S. at p. 118.) That option was
available here too. That an arrest may require the expenditure of
“considerable time and resources necessary to undertake a full
stationhouse booking (with possible towing, impounding, and inventorying
of a vehicle)” (maj. opn., ante, p. 17, fn. 17) is irrelevant under
Knowles, given its observation that an officer dissatisfied with a
driver’s proffered identification may arrest rather than merely cite the
driver.

In trying to distinguish this case from Knowles, supra, 525 U.S. 113,
the majority points out that the blanket rule it adopts today would
authorize only a limited search for a driver’s license or vehicle
registration in those areas of a car where such documents “reasonably may
be expected to be found.” (Maj. opn., ante, p. 2, italics added.) But the
car searches here were far from “limited.”

With regard to the search of Arturo’s extended cab truck, Officer Rowe
first looked under the front area of driver’s seat. Not finding
identification documentation, he then leaned into the area behind the
driver’s seat and reached underneath, finding a small blue box with a
substance later determined to be methamphetamine.

With respect to the search of Hinger’s car, Officer Skinner first
searched the glove compartment; then he looked under the driver’s seat;
and finally he reached under the passenger seat where he found the wallet
containing Hinger’s identification and the methamphetamine.

The majority describes each of these two warrantless vehicle searches
incident to traffic stops as “limited” and thus proper. But such a search
is no less broad than the full car search that the high court invalidated
in Knowles where, after citing the driver for speeding, the officer
searched under the driver’s seat and found “a bag of marijuana and a ‘pot
pipe.’ ” (Knowles, supra, 525 U.S. at p. 114.) The majority would also
permit a warrantless trunk search for identification and registration
documentation when the officer has “specific information” that those
documents “reasonably may be” found in the trunk. (Maj. opn., ante, p.
30, fn. 25.) In this instance, too, the scope of such a search goes far
beyond the search that the United States Supreme Court rejected in
Knowles.

In yet another futile effort to distinguish its holding from the type
of search prohibited in Knowles, supra, 525 U.S. 113, the majority
stresses that Knowles involved a warrantless search “for contraband
following the issuance of a citation,” whereas here the warrantless
searches were for “regulatory documentation, prior to issuing a traffic
citation.” (Maj. opn., ante, pp. 16-17, italics in maj. opn.) Why should
this distinction matter at all? A search incident to a routine traffic
stop when an officer has yet to decide either to arrest or merely cite a
driver has even less justification than the search invalidated in Knowles
conducted after the officer had cited the driver.

Nor should it matter, contrary to the majority’s suggestion at pages
16-17, ante, that the search in Knowles, supra, 525 U.S. 113, was for
“contraband” whereas here the searches were for “regulatory
documentation.” Invalidating the search in Knowles, the high court
expressly rejected Iowa’s contention that a blanket rule allowing car
searches incident to traffic citations would be justified because drivers
might conceal their ” ‘license[s] or vehicle registration[s].’ ” (See
ante, p. 7, quoting Knowles, supra, 525 U.S. at p. 118.)

Ultimately the majority rests its holding on People v. Webster (1991)
54 Cal.3d 411 (Webster), which this court decided seven years before
Knowles, supra, 525 U.S. 113. In Webster, four justices of this court
signed the majority opinion that affirmed a judgment of death. I
concurred in the judgment and wrote separately on an issue unrelated to
the Fourth Amendment. (See Webster, supra, at pp. 468-470 (conc. &
dis. opn. of Kennard, J.).)

In Webster, an officer stopped the defendant for speeding. The
defendant denied owning the car, claiming it belonged to someone in the
backseat, but then said that all five of his passengers were hitchhikers.
A radio check revealed that the defendant had an outstanding warrant, and
the officer arrested him. When the officer asked the passengers who owned
the car, all five “shrugged or shook their heads.” (Webster, supra, 54
Cal.3d at p. 429.) The officer then looked in the car’s “glove
compartment and visor for registration papers.” (Ibid.)

Given the totality of circumstances known to the officer in Webster,
he was amply justified in searching the car for registration. All six of
the car’s occupants, including the driver, had denied that it was their
car, and the officer had arrested the driver on an outstanding warrant, a
fact that standing alone gave the officer cause to make an incidental
search of the car’s passenger compartment: “[W]hen a policeman has made a
lawful custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment
of that automobile.” (New York v. Belton, supra, 453 U.S. at p. 460,
italics added; see also United States v. Gonzalez (11th Cir. 1996) 71
F.3d 819, 826 [applying the Belton rule to uphold the search of a car’s
glove compartment incident to its driver’s arrest on a warrant].)

The majority, however, seizes upon this sentence in Webster: “Within
constitutional limits, such statutes [requiring drivers to carry licenses
and vehicle registration in a car] authorize an officer to enter a
stopped vehicle and conduct an immediate warrantless search for the
required documents.” (Webster, supra, 54 Cal.3d at p. 430, italics
added.) The majority reads far too much into this isolated sentence from
Webster.

As the qualifying phrase “[w]ithin constitutional limits” suggests,
Webster recognized that an officer’s mere desire to secure license or
registration documents from a motorist would be insufficient by itself to
qualify as an exception to the Fourth Amendment’s warrant requirement.
(Webster, supra, 54 Cal.3d at p. 430.) And when read in the context of
the facts of that case, the sentence stands for this unremarkable
proposition: When an officer has arrested a car’s driver and is
determining whether to impound the car or release it to one of its
passengers, and no occupant of the car claims to know who owns the car,
the officer is justified to search for evidence of ownership in the
“glove compartment and visor” of what apparently is an abandoned car.
(Id. at p. 429.) The Webster language at issue does not support the
majority’s far broader rule that whenever a traffic violator cannot
produce either a driver’s license or car registration, the officer,
without making an arrest, can conduct a full search of the car for
identifying documentation. Furthermore, such a rule is contrary to
Knowles, in which the United States Supreme Court refused to authorize
warrantless vehicle searches when the driver has “merely” been cited but
not arrested. (Knowles, supra, 525 U.S. at pp. 118-119.)

III.

Unlike the majority, I would not adopt a blanket rule permitting
police to make a warrantless search of a car for identification
documentation or vehicle registration anytime a driver cannot produce
these documents. Instead, I would evaluate car searches by applying
established law, which permits a warrantless search of a car only if it
falls within one of the “narrow and well-delineated exceptions to the
warrant requirement” specified by the United States Supreme Court.
(Flippo v. West Virginia, supra, 528 U.S. at p. 13.) Among these
exceptions is the rule permitting police officers to search a car when
they have probable cause to believe it contains contraband or evidence of
a crime. (Maryland v. Dyson, supra, 527 U.S. at p. 466.) Probable cause
is evaluated on a case-by-case basis, applying a “totality of the
circumstances” test. (See United States v. Arvizu (2002) 534 U.S. ___;
United States v. Sokolow (1989) 490 U.S. 1, 8.) This standard takes into
account an officer’s common sense and experience to determine whether
there is “a fair probability that contraband or evidence of a crime will
be found.” (Illinois v. Gates (1983) 462 U.S. 213, 238.) Here, the
prosecution failed to justify the searches on this or any other
well-delineated exception to the warrant requirement.

In each case, the officer stopped the driver for a traffic infraction.
Arturo D. admitted he was an unlicensed driver, but he gave the officer
his name, address, and birth date. With respect to Hinger, he could not
produce either his driver’s license or the car’s registration, but he
told the officer his name and said he was in the process of buying the
car. The officer then placed a radio call to police dispatch personnel to
verify Hinger’s identity and to ascertain whether he owned the car. In
each case, had the officer been dissatisfied with the proof of identify
offered, he could have arrested the driver (see Veh. Code, §
40302, subd. (a)) and, incident to such an arrest, could have searched
the vehicle’s interior (New York v. Belton, supra, 453 U.S. at p. 460).
In each case, however, the officer testified at the suppression hearing
that at the time he undertook the vehicle search, he had no intent to
arrest the driver. Furthermore, in each case the prosecution sought to
justify the search on the single ground that whenever a driver cannot
produce statutorily required documentation, the officer has the right to
search for it inside the car. The prosecution neither advanced nor
developed a record to support any other theory. (See Green v. Superior
Court (1985) 40 Cal.3d 126, 137-138 [on issues of search and seizure,
prosecution is generally precluded from advancing new theory on appeal].)
Under these circumstances, the prosecution failed to carry its burden of
establishing probable cause or some other exception to the Fourth
Amendment’s warrant requirement for each search, and the suppression
motions in both cases should have been granted.

CONCLUSION

Who among us can ever forget the horrendous events of September 11,
2001, when our nation suffered the most destructive terrorist assault in
our history? As this opinion is being written, our nation is undergoing a
painful recovery from the devastating physical and psychological effects
of that day. One part of this recovery process has been an effort to
devise and implement more effective methods of law enforcement to protect
the security of our citizens and our institutions. Another and equally
important part of this process must be a rediscovery of and rededication
to the principles upon which our nation was founded and which have made
it a true beacon of liberty throughout the world.

One principle, so basic to our personal liberty, is the prohibition
that the Fourth Amendment to the United States Constitution places on
unreasonable searches and seizures. In determining whether a search is
“unreasonable,” a court must adhere to the decisions of the United States
Supreme Court articulating the meaning of that word in a similar case.
Virtually identical to the two cases here is the high court’s unanimous
decision in Knowles v. Iowa, supra, 525 U.S. 113. There, the court held
that when a police officer has stopped a motorist for a routine traffic
violation, and the officer has not arrested the motorist, the officer may
not rummage through the vehicle.

Today’s majority decision does nothing to enhance our security and
does much to erode our Fourth Amendment rights. Under California law, an
officer making a routine stop for a traffic violation may arrest a
motorist who fails to produce proof of identity and, within the
limitations of the Fourth Amendment, may search the vehicle incident to
the arrest. Given this ability, there is no justification for the
warrantless, nonconsensual search of a car’s interior when the officer
has made no arrest and the officer lacks probable cause to believe that
the car contains contraband. In announcing a blanket rule authorizing
such searches, the majority disregards the high court’s decision in
Knowles and chips away at one of the fundamental freedoms guaranteed by
our federal Constitution.

I dissent.

KENNARD, J.

I CONCUR:

BROWN, J.

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion In re Arturo D. and People v. Hinger

---

Unpublished Opinion XXX NP opn. filed 12/17/99 &emdash; 4th Dist.,
Div. 3 (P. v. Hinger)

Original Appeal

Original Proceeding

Review Granted XXX 77 Cal.App.4th 160 (In re Arturo D.)

Rehearing Granted

---

Opinion No. S085213 & S085218

Date Filed: January 24, 2002

---

Court: Superior

County: Solano & Orange

Judge: James F. Moelk & Cecil Hicks

---

Attorneys for Appellant:

Alex Green, under appointment by the Supreme Court, for Defendant and
Appellant Arturo D.

Amanda F. Doerrer, under appointment by the Supreme Court, and Patrick
DuNah, under appointment by the Court of Appeal, for Defendant and
Appellant Randall Ray Hinger.

---

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant
Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M.
Helfman, Christopher W. Grove and Jeffrey M. Laurence, Deputy Attorneys
General, for Plaintiff and Respondent Arturo D.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Robert M.
Foster, Laura Whitcomb Halgren and Ilana R. Butler, Deputy Attorneys
General, for Plaintiff and Respondent Randall Ray Hinger

Counsel who argued in Supreme Court (not intended for publication with
opinion):

Alex Green

2625 Alcatraz Avenue

Berkeley, CA 94705

(510) 654-5893

Amanda F. Doerrer

Appellate Defenders, Inc.

555 W. Beach Street, #330

San Diego, CA 92101-2939

(619) 696-0282

Jeffrey M. Laurence

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 703-5897

Ilana R. Butler

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2534

What constitutes a vehicle is sometimes not that clear.

What about a bicycle, boat or a horse?

The Vehicle Code defines a vehicle (VC670) as:

A device by which any or property may be propelled, or drawn upon a
highway, except a device moved exclusively by human power or used
exclusively upon stationary rails or tracks.

It is clear that a bicycle or a boat does not fit the definition of a
vehicle as it is defined in the code. But there are other sections in the
code, and there are other codes!

It is unlawful to ride a bike under the influence (VC21200). For
boaters in the Harbor and Navigation Code it is unlawful to ride a boat
under the influence. The levels for boating are the same (0.08) as they
are for an automobile.

Driving on private property is generally protected under the fourth
amendment except in drunk driving cases. In Buehler v. Meese (1986), the
appellant was arrested based on conduct that occurred in a trailer park.
The court of appeal held that driving under the influence of alcohol laws
apply to private property as well as on “highways.” the court noted that
restricting such laws to public highways “would also lead to absurd
consequences because alcohol impaired driving is dangerous wherever it is
done.

But as with all laws exceptions can be cited. In a recent Napa county
case. A Napa county peace officer noticed a tractor ‘lurching’ toward the
highway and decided to get a closer look to see what the defendant was
doing. He stopped his vehicle and got out. He then observed the defendant
with a bottle of beer on the tractor. He then arrested the driver of the
tractor (.17). The jury acquitted the defendant. During the selection of
the jury many jurors expressed difficulty with following a law that
prohibited such conduct on private property. So the decision of not
guilty.

DUI Conviction: Persons Under 21: Required
Suspension

13352.6. (a) The department shall immediately suspend the driving
privilege of any person who is 18 years of age or older and is convicted
of a violation of Section 23140, upon receipt of a duly certified
abstract of the record of any court showing that conviction. The
privilege may not be reinstated until the person provides the department
with proof, satisfactory to the department, of financial responsibility
and of successful completion of a driving-under-the-influence program
licensed under Section 11836 of the Health and Safety Code. That
attendance shall be as follows:

(1) If, within seven years of the current violation of Section 23140,
the person has not been convicted of a separate violation of Section
23140, 23152, or 23153, or of Section 23103, with a plea of guilty under
Section 23103.5, or of Section 655 of the Harbors and Navigation Code, or
of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192
of, the Penal Code, the person shall complete, at a minimum, the
education component of that licensed driving-under-the-influence
program.

(2) If the person does not meet the requirements of paragraph (1), the
person shall complete, at a minimum, the program described in paragraph
(1) of subdivision (c) of Section 11837 of the Health and Safety
Code.

(b) For the purposes of this section, enrollment, participation, and
completion of the program shall be subsequent to the date of the current
violation. No credit for enrollment, participation, or completion may be
given for any program activities completed prior to the date of the
current violation.

VEHICLE CODE SECTION 23140

23140. (a) It is unlawful for a person under the age of 21 years who
has 0.05 percent or more, by weight, of alcohol in his or her blood to
drive a vehicle.

(b) A person may be found to be in violation of subdivision (a) if the
person was, at the time of driving, under the age of 21 years and under
the influence of, or affected by, an alcoholic beverage regardless of
whether a chemical test was made to determine that person’s blood-alcohol
concentration and if the trier of fact finds that the person had consumed
an alcoholic beverage and was driving a vehicle while having a
concentration of 0.05 percent or more, by weight, of alcohol in his or
her blood.

(c) Notwithstanding any provision of law to the contrary, upon a
finding that a person has violated this section, the clerk of the court,
or judge if there is no clerk, shall prepare within 10 days after the
finding and immediately forward to the department an abstract of the
record of the court in which the finding is made. That abstract shall be
a public record and available for public inspection in the same manner as
other records reported under Section 1803.

Veh. C. §42001(a) sets the fines for vehicle code
infractions at $100.00 for a first offense, $200.00 for a second
infraction offense in a year, and $250.00 for a third or more infraction
offense in a year. Add to these the usual penalty assessment of up to
160% of the fine.

In addition to a fine, under Veh. C. §13202.5(d)(4), the
convicted defendant is subject to the mandatory one-year suspension, with
a hardship restriction available

Veh. C. §13352.6 was added and Veh. C. §23502
amended by Stats. 2000, Chap. 1063, §2, to require a person
over the age of 18 who is convicted of a violation of Veh. C.
§23140 to attend the educational component of a first
offender DUI Program (see page 10-107), unless there are prior drunk
driving convictions. If that’s the case, then the full first offender DUI
Program is required.

The person’s driving privilege is suspended until the program is
completed. Since the statute became operative on January 1, 2001, it only
applies to offenses committed after that date.

Contra Costa Fails Legal Test

Wednesday, August 6, 1997 · Page A16 ©1997
San Francisco Chronicle

CONTRA COSTA County’s five-year experiment with using a personality
test to screen welfare applicants for drug and alcohol addiction has come
to an end. And not a moment too soon.

The idea that a true-false personality test can somehow determine who
is and is not taking drugs is absurd. This one, known as the Substance
Abuse Subtle Screening Inventory, probes the inner recesses of the mind
with questions like, “Some crooks are so clever that I hope they get
away with what they’ve done.”

It turns out this line of questioning was a little too subtle. A joint
study by the county and an expert for the plaintiffs found that 44
percent of those identified as chemically dependent did not have a
current abuse problem. And 24 percent of applicants classified as
drug-free did have an abuse problem.

U.S. District Judge Maxine Chesney this week ordered the county to
stop the personality testing because it violates the Americans with
Disabilities Act.

The supervisors should have stopped using the test long ago. It
inappropriately subjects applicants to questions about highly personal
views, including religion.

Besides, it didn’t work.

The Department of Motor Vehicles may suspend a driver’s license based on failure to submit to alcohol testing even in the absence of a finding the driver was operating a vehicle at the time of the refusal, the First District Court of Appeal has ruled.

Taking sides is a dispute it said had split California’s appellate courts for more than a decade, Div. Three on Tuesday took issue with two rulings by the Fifth District Jackson v. Pierce (1990) 224 Cal.App.3d 964 and Medina v. Department of Motor Vehicles (1987) 188 Cal.App.3d 744.

Presiding Justice William R. McGuiness said the better argument was that made by the DMV in support of its suspension of Terry Troppman’s license. Following the Fifth District’s 1988 decision in Rice v. Pierce, 203 Cal.App.3d 1460, and the Sixth District’s ruling in Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687, McGuiness concluded that proof of actual driving is not required to support a license suspension or revocation in chemical refusal cases under Vehicle Code Sec. 13353.

Slumped in Van

A police officer woke Troppman at 10:45 p.m. on a Thursday evening in January of 2003 after finding her slumped over in the driver’s seat of a parked van. She was the only occupant, and the officer said he smelled alcohol and thought she appeared inebriated.

He arrested her after she failed field sobriety tests. At the police station she twice attempted to take a breath test without success, and then refused further testing.

At the administrative hearing Troppman conceded she was an alcoholic and had been drinking, but testified she had parked before she consumed quite a few glasses of wine and did not drive afterward.

The hearing officer concluded the arresting officer had reasonable cause to believe Troppman was driving drunk, but did not make a finding that she operated the van after drinking. A San Mateo Superior Court judge, relying on the Fifth District cases, ordered the resulting suspension set aside.

McGuiness noted the Troppman never challenged the lawfulness of her arrest. Hence, he reasoned, the case did not present the question of to what extent state high court case law requiring an officer to observe vehicular movement prior to making a drunk driving arrest was abrogated by subsequent legislation permitting arrests without such an observation where there is a risk that evidence may be destroyed by the passage of time.

Vehicle Code Mandates

The presiding justice pointed out that Sec. 13353 specifically requires hearing officers to review whether the officer making the arrest had reasonable cause to believe the arrestee was driving while under the influence, and to determine whether the arrestee was advised of the consequences of refusing to be tested.

McGuiness declared:

We agree with the reasoning of Rice and Machado. It is apparent the Legislature enacted section 13353 to give police officers a tool to obtain chemical testing from drunk driving suspects without having to resort to physical compulsion. Although the Legislature expressly conditioned the use of section 13353 upon a lawful arrest for driving under the influence and upon the officer’s reasonable belief that the arrestee was so driving, nowhere does the statute make suspension of the arrestee’s license conditional upon proof that he or she was actually driving at the time of the alleged offense. While the distinction between proof necessary to administer a chemical test and proof necessary to suspend a person’s driver’s license may hold some rhetorical appeal, we find no support for such a distinction in the language of the statutes. If the Legislature wished to make suspension of a person’s license under section 13353 conditional upon a finding that the person was actually driving at the time of the alleged offense, it could have easily added this subject to the required findings enumerated in the statute.

He continued:

Instead, under the language of section 13353, it is sufficient that the arresting officer has reasonable cause to believe the person had been driving’ while under the influence of drugs or alcohol.

Justices Carol Corrigan and Stuart Pollak concurred, but Pollak wrote separately to argue that it was unnecessary for the court to derive authority for the license suspension from the doctrine of implied consent.

Pollak wrote:

There is no constitutional or other impediment to the Legislature authorizing the forfeiture of a driver’s license if the person, lawfully arrested for suspected drunken driving and properly warned of the consequences…, refuses to submit to a chemical test of intoxication.

Troppman’s license suspension was valid, Pollak explained, not because she impliedly consented to submit to a chemical test under the circumstances, but because the validity and enforceability of section 13353 does not require such consent on her part.

The case is Troppman v. Gourley, 05 S.O.S. 761.

Thursday, February 10, 2005

By DAVID WATSON, Staff Writer

Copyright 2005, Metropolitan News Company

Are you in need of a California DUI Attorney?

New legislation aims to teach a lesson – and to keep drunks from
getting behind the wheel. Beginning Sunday, authorities can seize
vehicles of motorists arrested for drunken driving if they have a
previous conviction.
By Kevin Yamamura — Bee Capitol Bureau

Published 2:15 am PST Saturday, December 31, 2005 Story appeared on
Page A3 of The Bee Motorists who commit a repeat drunken driving offense
in California have their vehicles seized under existing state law – but
it doesn’t happen until after they are convicted.

Under a new law that takes effect Sunday, drivers in California can
lose their cars when they’re arrested – and before they’re convicted – if
they have committed a drunken driving offense in the past decade.

Another new law sets the stage for a pilot project in Sacramento
County that would impose a longer pre-conviction impoundment and require
an intervention for motorists suspected of drunken driving.

The new rules are intended to teach drunken drivers a dramatic lesson
when the offense occurs and to deter impaired motorists from getting
behind the wheel.

"The usual issue in alcohol problems is that nobody confronts the
individual," said Leon Owens, medical director of the trauma program at
Mercy San Juan Medical Center. "We’re being confrontational once you’re
arrested.

We’re taking the vehicle away and making it a big deal in your
life."

Owens sees victims of drunken driving on a nightly basis in his trauma
ward – he estimates they constitute one-third of all trauma patients –
and spearheaded the effort to pass Senate Bill 547 by Sen. Dave Cox,
R-Fair Oaks.

The bill, signed into law by Gov. Arnold Schwarzenegger, will create
the Sacramento County pilot project to impound vehicles for up to 30 days
if their motorists are arrested for a repeat offense of driving under the
influence. Owens is trying to secure at least $1.5 million in funding
before the Board of Supervisors implements the program.

Another new law, Senate Bill 207 by Sen. Jack Scott, D-Altadena, will
allow officers to impound a vehicle for five days after arresting a
previously convicted driver with a blood-alcohol level of 0.10 or higher.
On a third or subsequent arrest within 10 years, a driver would face a
15-day impoundment.

In California, alcohol-related traffic deaths rose by 2 percent and
arrests increased by 3.7 percent in 2003, according to a 2005 state
report. In 2002, repeat offenders constituted 24 percent of drunken
driving convictions.

Under existing law, repeat drunken driving offenders face a mandatory
30-day impoundment after conviction unless courts find such a penalty
would impose an undue hardship.

Courts also can order a vehicle impounded for up to six months when
its owner is convicted of a first drunken driving offense. A repeat
offense can result in post-conviction impoundment of up to one year.

One Assembly analysis, however, says that courts have been reluctant
to impose such impoundments because it is difficult to seize vehicles
weeks after an incident and doing so often imposes a financial burden on
other family members.

The new laws have drawn opposition from defense lawyers who say
pre-conviction impoundment infringes upon the constitutional rights of
individuals by taking their personal property before they face trial.

"People need to recognize that the government is streamlining the
process of taking people’s liberty and property interests without giving
them the due process upon which our system has been based for hundreds of
years," said K. Randolph Moore, a San Jose attorney and president of the
300-member California DUI Lawyers Association.

But Scott said taking a drunken driver’s vehicle is akin to seizing a
loaded weapon upon arrest, which officers already do. And Cox defended
his plan by saying, "We’re not taking a car, we’re impounding it for a
specific period of time."

Moore said he thinks drunken driving is wrong, but he believes the new
laws won’t have much impact. "This serves no purpose but to allow someone
to pound on his chest and say he passed another drunk-driving law," Moore
said. "The people who are going to drive drunk are not going to be
affected by impoundment."

Scott’s bill sets the threshold at a 0.10 blood-alcohol level,
slightly higher than the state’s 0.08 DUI standard. Current law allows
for the suspension of a drunken motorist’s license upon arrest, but Scott
said he doesn’t see that as enough of a penalty.

"I know of at least two men who have continued to drive after their
licenses were taken away," Scott said. "I think some people really value
their car, and when you threaten them with the loss of an automobile,
there will be tremendous family pressure placed on them." Owens knows
firsthand how drunken driving affects families. His 21-year-old son,
Jake, died when he crashed his car in Carmichael while driving drunk in
2002.

He said he does not know whether SB 547 would have saved his son. But
he believes that drunken drivers can learn from a "teachable moment" that
occurs right after an accident. Under the Cox law, a drunken driver would
face an intervention and receive a referral to an alcohol treatment
program.

After successfully lobbying legislators to pass SB 547, Owens is
pursuing at least $1.5 million in federal, state and private funding to
enable Sacramento County to run the program. He aims to have the pilot
project running by July.

Cox said the "teachable moment" is the most significant aspect of his
new law. "There is a point of time where you have someone’s attention and
that’s when you can make a difference," Cox said. "When you have lost
your vehicle, that gets your attention."

NEW LAWS AT A GLANCE Senate Bill 547 creates a pilot project in
Sacramento County to impound vehicles for up to 30 days if their
motorists are arrested for a repeat offense of driving under the
influence. Senate Bill 207 will allow officers statewide to impound a
vehicle for five days after arresting a previously convicted driver with
a blood-alcohol level of 0.10 or higher.

About the writer: The Bee’s Kevin Yamamura can be reached at (916)
326-5548 or [email protected].

California Bill Number: SB 547 Enacted This bill would establish a
pilot program in Sacramento County that would authorize, until January 1,
2009, the impoundment of a person’s vehicle by a peace officer for a DUI
offense that is undertaken in combination with an intervention and a
referral of the person to a driving-under-the-influence program, as
specified, if the person has one or more prior DUI convictions within the
past 10 years. The bill would implement the program only to the extent
that funds from private or federal sources are available to fund the
program and only if the Board of Supervisors of Sacramento County enacts
an ordinance or resolution authorizing the implementation of the pilot
program in the county. The bill would require the county to report to the
Legislature regarding the effectiveness of the pilot program, as
specified.

SOURCE: SACBEE

If this has happened to, you are in need of a California DUI Lawyer.

“Sir, turn your vehicle off!” Anthony Panzica hollers into the open driver’s-side window.

A man wearing a scraggly beard and a green St. Patrick’s Day necklace has passed out at the wheel of his white Econoline van. Encircled by a telltale cloud of beer stench, his head rises and falls with unconscious breathing.

“I can’t let you drive!” Panzica continues.

The bearded man awakens, but only enough to slightly cock his head, then pin his accelerator. The engine roar stops all conversation in a long line waiting to enter the packed Seal Beach bar around the corner.

Luckily, the van is in park.

Panzica, 39, is the founder of Scooter Patrol, a nonprofit Long Beach group saving lives (as well as DUI arrests) by ferrying inebriated bar patrons home in their own cars. Folding electric scooters are placed in trunks or truck beds; volunteers ride them to their next inebriated client.

Normally, Panzica demands car keys from any obviously impaired drivers he encounters along the way. If they resist, he grabs the keys and forcibly drives them home.

“When somebody can’t stand or walk, they can hardly drive a vehicle,” Panzica said earlier. “Now they’re putting me and my friends and family at risk, and I’m not gonna have that.”

But fate has hurled Panzica a curveball with the bearded man: His van has no key. It’s configured for a paraplegic. A joystick substitutes for the steering wheel, a series of unrecognizable buttons for all the familiar pedals and knobs.

Not only could Panzica never drive this vehicle, he can’t cut the engine.

“You’ve got to shut this thing off!” Panzica shouts. “I’m going to call the police!”

After five minutes, the bearded man obeys and hydraulically lowers himself to the sidewalk. Panzica introduces himself, in a surprisingly polite tone, then wheels him to a nearby coffee shop.

“I’ll wait here for three hours,” the man slurs. “I won’t drive, I promise.”

During the week, Scooter Patrol — which posts fliers in popular bars around Long Beach, Sunset Beach, Huntington Beach and Seal Beach — responds to three to six calls per night, either from worried drivers or bartenders.

On weekends, the frequency is eight to 20, and on this night that number doubles.

St. Patrick’s Day is the second drunkest night after New Year’s Eve.

“The beauty of the whole thing is you have your vehicle in your front yard tomorrow morning,” says tonight’s first official client, who asks to be referred to only as Mike.

He is not visibly impaired but says he downed nine drinks over the previous three hours at a Seal Beach pub called Dave’s Other Place.

“If I were to call a cab, I’d have to figure out a way to get down here tomorrow morning, get my truck and then be at work on time,” he continues, as his Chevy Silverado is driven the 25 minutes back to Huntington Beach for him.

“I’ve got Anthony on my speed dial,” Mike says. (This is his fifth time using Scooter Patrol.)

Normally, Panzica plops his Goped into the back of Mike’s pickup.

But Panzica and a journalist can’t fit on a one-person scooter. So tonight we’re tailed by our ride back, a van driven by a former client and current Scooter Patrol volunteer. (His van features passenger amenities such as water, breath mints and air-sickness bags.)

Panzica is a Chicago-born Army brat whose last steady job was working corporate events as a James Dean impersonator in the ’90s.

The resemblance is still uncanny, which begs the question: Have people ever awakened to freak out at the sight of James Dean driving their car?

Panzica laughs. “He wasn’t too good of a driver, was he?” he responds.

Scooter Patrol employs Panzica and four other trained drivers. They’re all volunteers, but do OK on tips. (Mike will hand Panzica $40 tonight, more than cab fare plus gratuity.)

“I plan on making a good living doing this eventually,” Panzica says. “But it has to be built up and proven first.”

Panzica interrupts to field a request from a new client on his never-silent cell phone.

“Hang tight for another half hour,” he tells Stacy, who says she’s waiting in front of O’Malley’s in Seal Beach, wearing a tall green hat. The next call is a woman requesting transportation from one bar to another.

“We’re really not solving any problems that way,” Panzica explains to the caller. “We only want to get you home, so that you don’t hurt yourself or someone else.”

In 1989 Panzica received his own DUI conviction, courtesy of the Santa Monica Police Department.

“I was out partying one night and I didn’t realize how much I imbibed,” he says. “It was one of the worst experiences of my life.”

He estimates the cost in fines and insurance at about $6,000. (Since then, it’s doubled — and that’s not counting any criminal charges, civil judgments and lifelong guilt for possibly killing or maiming others.)

Panzica dreamed up Scooter Patrol three years ago to help others avoid his fate — or a worse one. The idea came during a conversation with a friend on Main Street in Seal Beach, Southern California’s Times Square of alcohol consumption. (A one-mile stretch contains 21 always-busy drinking establishments.)

“We tried to come up with a solution to how you get the guy’s car home with him,” Panzica says. “We talked about a tow truck or a skateboard, folding bicycles. And we finally hit on scooters that fold up.”

It was an original idea — until Panzica discovered that one UK anti-drunk-driving organization had invented it two years earlier.

“But they charge for their service,” he says.

Another similar service, the Designated Drivers Association, operated briefly around Santa Monica last year. Drunk motorists were driven home from bars by two volunteers — one in the driver’s car, the second tailing in another.

“But we suspended operations indefinitely,” DDA founder Nick Yaya said during a separate interview. He blamed lack of support from the community during New Year’s Eve.

“We just couldn’t get the message out like we needed to,” he said. (Yaya has since gotten in touch with Panzica, and the two have scheduled a meeting to try and combine forces.)

“This is the bridge where I nearly got killed,” Panzica says as he nears his first client’s house. The memory is only one-month old.

“There was a drunk driver going the wrong way in this lane,” Panzica says. “He missed me by about four inches and plowed into the person behind me.” (The drunk driver died, Panzica reports; his victim survived with minor injuries.)

You won’t find many people to argue how wrong drunk driving is. Yet you also won’t find many people who won’t take the wheel after only two beers on a Saturday night. Like it or not, that’s our culture.

A case such as Mike’s or the bearded man’s is clear-cut. But what about the drinker who’s had significantly less and insists on driving?

“That’s a hard one,” Panzica says.

Drinkers are never a reliable gauge of how intoxicated they are. Neither are the DMV charts mailed out with registration renewals, which account only for differences in weight.

Accurately predicting blood-alcohol content (BAC) based on number of drinks over time also requires knowledge of when and how much food was last consumed. Knowing a person’s individual metabolic rate and body-fat content also is vital. And gender is a factor, with alcohol rushing faster into the bloodstream of females.

Personal breath tests aren’t accurate either — at least as of five years ago, when this reporter tested the Alcolimit DriveSafe model against a police machine.

After two 8-ounce glasses of champagne and a 15-minute wait, the test subject blew a .015 with the personal Alcolimit, but a whopping .07 at the police station.

Besides, drivers can legally be charged with DUI at any BAC level — if field-sobriety tests suggest they are impaired.

“Nobody can know for sure,” says Panzica, whose personal answer is never to drive with a trace of alcohol in him. However, this is not realistic for most party-going Americans.

“After you get popped, you know when you’re impaired,” says Mike. “I know based upon the education I was forced to receive, issued by the courts.”

Scooter Patrol currently operates from Huntington Beach up to Belmont Shore, but Panzica says he hopes to expand as far north as Manhattan Beach.

“There’s no set plan yet, but I’ve received some phone calls and e-mails from South Bay business people and residents who are very interested in having Scooter Patrol in their community.”

However, even a Scooter Patrol in every American city wouldn’t scratch the surface of the drunk-driving scourge.

Every 33 minutes in the U.S., someone is killed in a drunk-driving crash, according to the National Highway Traffic Safety Administration.

“There’s a serious problem there,” Panzica says, “and it’s not getting adequately addressed by drunk-driving laws.”

As if to illustrate the point, the bearded man wheels himself unsteadily out of the coffee shop and back into his van only 15 minutes after promising Panzica he’d take his time sobering up.

Panzica again threatens to summon the cops. This time, he is ignored. As the man starts up his van, Panzica whips out his cell phone. The bearded man isn’t even looking. He pulls away, astonishing onlookers.

In two years of performing this service, seven nights a week, Panzica says he’s “never dealt with anything like this.”

Panzica opts not to place the call to the police.

“When you’re trying to help the community, getting people incarcerated can hurt your reputation as somebody known for caring for people,” he says. “But, let me tell you, that was a very, very hard decision to make.”

Down the street, two unsuspecting boys dart their bicycles out in front of the van. Luckily, they are not hit.

“It’s gonna be a long night,” Panzica says

By Corey Levitan – Long Beach, CA

Daily Breeze

Are you in need of a California DUI Lawyer?

Associated Press

SAN FRANCISCO – The California Supreme Court is reviewing lower court
opinions that conflict over when it’s OK to suspend the driver’s license
of a suspected drunken driver who refuses to submit to a breath or blood
test.

At issue is a law allowing the one-year suspension of driver’s
licenses for suspected drunken drivers who decline to take a breath test
or allow their blood to be drawn.

Some lower courts have said the license can automatically be suspended
for refusing either of the tests. Other California courts have said the
police must have evidence that the person refusing the test was actually
driving the car while intoxicated.

The justices agreed in private Wednesday to hear the dispute, but set
no hearing date.

The case concerns a woman who says she was an alcoholic when a Belmont
police officer found her sleeping in her parked car on Jan. 2, 2003.
Police questioned her and said she was mumbling incoherently. She
declined to take a breath or blood test after failing a field sobriety
test.

At a Department of Motor Vehicles administrative hearing, the woman
said she was not driving drunk but had several glasses of wine after she
parked the car. She said she had an uncontrollable urge to drink that
day.

A San Mateo County judge overturned the DMV’s suspension of her
license because the police did not show the woman was actually driving
while drunk. An appeals court reinstated the suspension, saying that
requirement was not necessary.

The case is Troppman v. Gourley, S132496.

---

California Case

Troppman v. Gourley, 2005 Cal. App. LEXIS 196 Date: 2005

The arresting officer found the driver, who appeared to be
intoxicated, in the driver’s seat of a parked van with a wine bottle on
the floor. After the driver failed several field sobriety tests, she was
placed under arrest. She refused to submit to chemical testing. At the
license revocation hearing, the driver testified that she drank the wine
after parking the van and that she had consumed no alcohol before
driving. The administrative hearing officer suspended her license because
she had refused to submit to testing after an arrest for which there was
reasonable cause. The superior court granted driver ‘s writ because there
had been no finding by the hearing officer that she was actually driving.
However, the court of appeal held that a driver’s license could be
suspended for failing to submit to a chemical test without a finding of
actual driving. Because there was no requirement under Cal. Veh. Code ‘ ‘
13353, 23612 to prove that the driver was actually driving at or near the
time of her arrest, and because there was no dispute that the driver was
lawfully arrested and that the arresting officer had reasonable cause to
believe she had been driving. Thus, the appellate court ruled that the
superior court judge made a mistake in granting the driver = s petition
for writ, and agreed with the DMV hearing officer.

Court of Appeals(PDF Download)

Are you in need of a California DUI Lawyer?