Lively

his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant James Douglas Lively pleaded guilty to one count of driving while having .08 percent or higher blood alcohol (Veh. Code, § 23152, subd. (b)) and one count of driving while his license was suspended (Veh. Code, § 14601.2, subd. (a)). Defendant also admitted allegations that within the past seven years he suffered four prior convictions for violating Vehicle Code section 23152, subdivision (a), one prior conviction for violating Vehicle Code section 23152, subdivision (b), and three prior convictions for violating Vehicle Code section 14601.2, subdivision (a). A third count for driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) was dismissed pursuant to a negotiated plea. Defendant was sentenced to 16 months in state prison.

On appeal, defendant contends his breath test results should have been suppressed because warrantless misdemeanor arrests are permissible only if the offense is committed in the officer’s presence (Pen. Code, § 836, subd. 1) and the officer who arrested defendant for driving under the influence of alcohol did not see him drive. (Mercer v. Department of Motor…