Behan v. Alexis

Opinion

WIENER, J.

This case involves what we will describe as the “disappearing” lawful arrest in the context of a driver’s license suspension by the Department of Motor Vehicles (DMV). We decide, “Once a lawful arrest, always a lawful arrest” under Vehicle Code section 13353, regardless of the disappearance of the word “arrest” pursuant to the application of Penal Code sections 849.5 and 851.6. We reverse the judgment setting aside the suspension of Jeffrey Phillip Behan’s driver’s license and instruct the trial court to enter judgment for the DMV.

Sanctions for Failure to Comply With California’s Implied Consent Law; a Warrantless Arrest Without an Accusatory Pleading Becomes a Detention

California’s implied consent law, Vehicle Code section 13353, obligates any driver to submit to one of three chemical tests to establish the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while driving a motor vehicle under the influence of intoxicating liquor. Where the driver fails to complete a test, the DMV is required to suspend his driver’s license for a period of six months. (Veh. Code, § 13353, subds. (b) and (c).) Where, however, the arrest is unlawful, the driver’s license may not be suspended.

(Shackelton

v.

Department of Motor Vehicles

(1975) 46 Cal.App.3d 327, 330-331 [119 Cal.Rptr. 921].)

Penal Code section 849.5 provides: “In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release.

Thereafter, the arrest shall not be deemed an arrest, but a

[406]

detention only”

(Italics supplied.) The person released after a warrant-less arrest without being formally charged is entitled to a certificate describing the action as a detention. (Pen. Code, § 851.6.)