Music

Appellant Gary William Music appeals from a judgment denying his petition for writ of mandate seeking to overturn an order of respondent, Department of Motor Vehicles, suspending his driver’s license for six months for failing to submit to a chemical test when requested to do so by a police officer. (Veh. Code, §§ 13353, subd. (a); 23157.) The controlling issue on appeal is whether appellant was validly arrested for driving under the influence in that the arresting officer did not actually witness an act of driving a motor vehicle. We hold that under such circumstances, a warrantless arrest is invalid. Because a valid arrest is a condition precedent under the implied consent law for suspending a driving privilege (§ 13353, subd. (b); Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1026 [ 229 Cal.Rptr. 310 ]), we reverse.

A. The Evidence

At approximately 1:40 a.m., on a cold and rainy November 8, 1988, California Highway Patrol Officer Kevin James O’Connor spotted appellant’s truck parked in a parking stall in front of the Blue Room Bar on the northbound shoulder of Redwood Drive in Garberville. The engine was running, exhaust was coming out of the exhaust pipe, the yellow…