People v. Ellis

Opinion

VEGAN. J.

Donald Lynn Ellis appeals from the judgment entered following his plea of guilty to driving a motor vehicle with a blood-alcohol level of

[1200]

more than .08 percent with five prior convictions of driving a motor vehicle under the influence (Veh. Code, §§ 23152, subd. (b), 23175) and his admission of a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). Prior thereto, he unsuccessfully brought a suppression motion pursuant to Penal Code section 1538.5. He contends: “The suppression motion should have been granted because the detention was improper.”

“We view the evidence in the light most favorable to the order denying suppression which is required by the familiar rule governing appellate review. [Citation.]”

(People

v.

Renteria

(1992) 2 Cal.App.4th 440, 442 [2 Cal.Rptr.2d 925].) At approximately 2 a.m. on June 13, 1992, Port Hueneme Police Officer Steven Hart was on routine patrol when he saw appellant driving a Jeep Cherokee in a commercial parking lot, near a USA gas station, adjacent to Ventura Road. The jeep’s headlamps were not turned on. Hart used his overhead red lights to attract appellant’s attention to effect “. . . a traffic stop to tell the subject to turn on his lights.”

When Hart asked appellant for his driver’s license, appellant replied that he did not have one. Hart noticed that appellant’s breath smelled of alcohol, his eyes were bloodshot and watery and his speech was slurred. Hart asked appellant to step out of his vehicle and appellant said: “You have got me. Go ahead and take me in.” When Hart asked appellant why he should be arrested, appellant answered: “Because I am drunk.” After administering field sobriety tests and forming the opinion that appellant was under the influence of alcohol, Hart arrested appellant. Appellant’s blood-alcohol level was subsequently determined to be .24 percent.

Appellant moved to suppress the evidence of his intoxication, arguing that Hart illegally detained him. His theory was that driving without headlamps in violation of Vehicle Code section 24400 is not one of the provisions of the Vehicle Code which can be enforced in privately owned parking lots pursuant to Vehicle Code section 21107.8.