Schofield

Originally enacted in 1872, Penal Code section 836 codified the common law rule which generally precluded a peace officer from making a warrantless arrest for a misdemeanor not committed in the officer’s presence. At that time, of course, there were no automobiles and no “drunk drivers.” Then, an inebriated person either riding a horse or driving a wagon posed little danger to the public. Times have changed. Now, an inebriated person driving a motor vehicle poses a great danger to the public. Despite increasingly severe penalties for driving under the influence, arrest and conviction for such offense continue to escalate. But prosecution has sometimes been hampered by the “presence” requirement of Penal Code section 836. The Legislature has provided exceptions to this requirement. At issue here is the destruction of evidence exception. (Veh. Code, § 40300.5, subd. (e). See post, at p. 972.)

We hold that a peace officer with probable cause may arrest a person for misdemeanor driving under the influence of alcohol and or drugs not committed in the officer’s presence where, as here, evidence may be destroyed unless the person is immediately arrested. We quickly qualify our…