The Circle Remains Unbroken

"Driving"

California case law (Alonzo) requires that a misdemeanor take place in the presence of the arresting officer.  California case law (Engleman) requires that the court not rely on circumstantial evidence in determining whether a misdemeanor takes place in an officer's presence.

DUI case.  Two elements: Driving and under the influence/.08 or above. 

Me: Did you see my client driving?
Officer: No.
Me:  Did you see my client behind the wheel?
Officer: No.
Me Did you see my client in the car at all?
Officer: No.

...

Me: Clearly, your honor he didn't see my client driving and can't form reasonable suspicion to detain my client.

Court:  No. He can use circumstantial evidence. 

Me:  No. Engleman.

Court: She admitted she drove.

Me: He had to form reasonable suspicion before he asked her.

Court: He can use circumstantial evidence.

The circle remains unbroken. 

Pros:  It was a consensual encounter.  I've provided caselaw.

Me:  Those are felonies.  Alonzo says a misdemeanor has to occur in the presence of the officer.

Pros:  But VC 21718 says you can't park on the side of the road.  He had a right to investigate.

Me: Sure, but as soon as he was told the car in front was broke down he had no reason to investigate further. Clearly, there has to be a broke-down car exception to VC 21718.

We then did the public policy dance.

Needless to say, my client lost the motion.

P.S. Once again, we learn: Don't talk to cops.  Ever.