Evans v. Municipal Court

FOX, P. J.

This is an appeal from an order denying appellant’s application for an alternative writ to prohibit respondent court from trying appellant on a misdemeanor charge.

On August 18, 1961, at 12:30 a. m. appellant was arrested for violation of Vehicle Code section 23102 (driving while under the influence of intoxicating liquor) and booked in the Beverly Hills City Jail. At 12:40 a. m. appellant called his attorney, Stanley N. Gleis, requesting him to come to the jail to obtain his release. Attorney Gleis spoke over the telephone with Lieutenant Thomas Pierce, the officer in charge of the Beverly Hills jail, informing the officer that he would go immediately to the jail to obtain appellant’s release. Lieutenant Pierce told appellant’s attorney that there would be no use in his coming to the jail because appellant would not be released until 6 a. m. since the Beverly Hills Police Department had a policy of keeping everyone charged with drunk driving in jail for approximately five hours before releasing them. Attorney Gleis told the officer he would leave for the jail immediately with bail to obtain appellant’s immediate release.

Appellant’s attorney arrived at the Beverly Hills jail at 1:30 a. m., advised Lieutenant Pierce that he was the attorney for appellant and was ready to post cash bail for appellant’s release. The officer replied that he would not accept the bail or release appellant until 6 a. m.

[635]

The attorney was allowed to see appellant and administered an intoxication test in the jail to appellant. Lieutenant Pierce subsequently (at approximately 2 a. m.) came to appellant and his attorney and told the attorney that he could leave, suggesting that he return about 6 a. m. because appellant would not be released until then. After leaving the appellant, the attorney offered to post cash bail for the release of appellant according to a bail schedule provided in accordance with Penal Code section 1269b, subdivision (a)—$263.

Appellant’s attorney told the officer in charge that he desired appellant’s release in order that the arrest could be properly investigated and counsel could discuss the matter outside of jail. Attorney Gleis also advised the officer in charge that he had administered a sobriety test to appellant and in his opinion appellant was not under the influence of intoxicating liquor. The attorney requested the officer to administer a sobriety test to appellant in his presence if he was not going to release appellant. The officer refused to administer such a test and again stated that he would not release appellant. Appellant’s attorney remained at the Beverly Hills Police station until 5 :10 a. m. (approximately four and a half hours after booking), at which time the officer in charge agreed to accept the cash bail of $263 and, after deposit of such bail, appellant was released.