Whalen v. Municipal Court

[810]

WEIGHT, J.

On October 30, 1967, defendant James Lawrence Whalen was charged in the Municipal Court, Alhambra Judicial District, with a violation of section 23102 of the Vehicle Code, driving under the influence of intoxicating liquor. On January 30, 1968, defendant at a hearing termed a “pre-trial” hearing in said municipal court moved to suppress evidence obtained in field sobriety tests. The motion was denied and the defendant filed a writ of prohibition in the superior court to restrain the municipal court from proceeding with the trial. The superior court denied the writ on March 27, 1968, and defendant appeals from the order of denial. A stay was granted by the superior court preventing the cause from proceeding to trial.

Statement op Facts

On October 29,1967, defendant was observed driving on the Long Beach Freeway and was stopped by police officers for questioning as to whether he was operating a motor vehicle under the influence of intoxicating liquor. On at least two occasions he was advised of his rights under

Miranda

v.

Arizona,

384 U.S. 436 [16 L.E.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], Defendant testified at the special pretrial hearing that upon being advised of his constitutional rights, he demanded that he be permitted to call an attorney. The arresting officer testified that no such request was made until after the defendant had been taken to the station for booking. Certain well known field sobriety tests such as walking heel to toe on an imaginary line, the finger to nose test, and several balance exercises were administered to the defendant near the scene where he had been stopped. The officer first performed each test and then asked the defendant to repeat the particular procedure! There was no oral communication in connection with the tests other than the giving of instructions by the officer. Upon the completion of the examination the officer formed the opinion that the defendant was under the influence of intoxicating liquor, and defendant was placed under arrest and was taken in the police vehicle to the station. Both the defendant and the arresting officer testified that at the station the defendant demanded that he be permitted to telephone his attorney. Some hours elapsed before, he completed such a call. Defendant was advised of the requirements of section 13353 of the Vehicle Code (the implied consent provisions) and was given an option as to which of the three specified tests—chemical blood, breath or urine—he preferred to take. He first indicated a willingness to submit a sample of