Mallick v. Gutierrez
Filed 4/24/06 Mallick v. Gutierrez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| JOHN PAUL MALLICK, Petitioner and Appellant, v. CHON GUTIERREZ, as Director, etc., Respondent. |
A111082
(San Francisco County Super. Ct. No. CPF-04-504337)
|
Appellant was arrested by officers of the California Highway Patrol (CHP) for driving under the influence of alcohol. He then refused to submit to a chemical test of his blood-alcohol level as is required by Vehicle Code[1] section 23612, subdivision (a)(1)(A). His refusal resulted in the suspension of his driving privilege by the Department of Motor Vehicles (DMV) under section 13353, subdivision (a)(1). Appellant unsuccessfully challenged the suspension before the DMV hearing officer and then by way of petition for a writ of administrative mandamus in the superior court, on the ground that the CHP had no authority to detain and arrest him for driving under the influence because the detention and arrest occurred on federal land. We affirm.
FACTS
The facts are essentially undisputed. The vehicle driven by appellant was first observed by the CHP speeding and weaving on the freeway at 2:05 in the morning. When the officers attempted to stop him, appellant's car came to a halt on the grounds of the Presidio--federal land. Upon contacting appellant, the reporting officer noticed objective signs of intoxication. At 2:25 a.m., appellant was arrested for driving under the influence. He was properly advised of his obligation to submit to a chemical test. He refused.
ISSUE PRESENTED
Appellant contends that his detention and arrest by the CHP for driving under the influence was unlawful because the CHP's law enforcement authority does not extend to federal land. Further, he contends, the suspension of his driving privilege was invalid because a lawful arrest is prerequisite to a suspension under section 13353, subdivision (a)(1) for refusal to submit to a chemical test.
For our purposes, appellant does not dispute: (1) he was under the influence of alcohol; (2) he was properly advised of his obligation to take a chemical test; and (3) he refused to do so. Additionally, appellant concedes he committed moving violations on the freeway, i.e., speeding and weaving. Indeed, appellant concedes the CHP, having observed moving violations on state land, may follow the offending vehicle onto federal land for the limited purpose of issuing the driver a citation for those violations. Appellant's sole contention is that, having properly detained the vehicle for a limited purpose, the CHP may not conduct an investigation for driving under the influence but must, instead, summon Park Service police to do so.
ANALYSIS
The licensee must be under lawful arrest at the time he refuses to submit to a chemical test of his blood or breath in order for that refusal to result in a license suspension. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 760.) Appellant contends the CHP exceeded its authority in arresting him on federal land, such that his arrest was unlawful. Respondent argues that the arrest was lawful because the Presidio is within the state and the authority of the CHP â€
