Wilken

The People appeal, pursuant to subdivision (7) of section 1238 of the Penal Code, from an order dismissing a criminal prosecution under section 1385 of the Penal Code after the entry of an order pursuant to section 1538.5 suppressing evidence, For the reasons set forth below, we conclude that the 1538.5 motion was improperly granted and, therefore, that the dismissal was erroneous.

Defendant was stopped by police officers, after he had been observed driving erratically both on and off a freeway. He was arrested for a violation of subdivision (a) of section 23102 of the Vehicle Code (drunk driving). He was given a field sobriety test and was transported to the police station, where he was given and failed a breathalyzer test. He was then searched and the amphetamine pills which form the basis of the present charge and were the subject of the present motion, were found.

The trial court granted a motion to suppress on the theory that the case was governed by our opinion in People v. Mercurio (1970) 10 Cal.App.3d 426 [ 88 Cal.Rptr. 750 ]. We conclude that that decision is not applicable to the case at bench.

Ordinarily, search of the person or an automobile is not…