I concur in the reversal, since I can see no basis for distinguishing People v. Levey. (As a Justice of an intermediate appellate court, it is not within my official competence to- express an opinion as to the merits of that opinion; I am obligated to follow it.)
However, I dissent from the portion of the opinion which sustains the admissibility of the evidence.
*240I can find in the' record before us no more than that Officer Abbey was convinced that defendant was “under the influence” of some kind or kinds of intoxicant, but that he had no reason to suspect one kind more than another, except that he put alcoholic intoxication as a remote possibility. While I agree that the cases do not require an arresting officer to be a good lawyer, and that he may err in what particular crime is involved, I read them as requiring him to have a reasonable belief in facts which, if true, would justify an arrest. I cannot subscribe to a holding that a felony arrest may lawfully be made merely on an officer’s belief that the arrestee has committed some crime of indefinite content. I realize that the problem in the case at bench arises out of the fact that the various code sections are so drawn as to be mutually exclusive; but the rectification of that difficulty is for the Legislature, not for us.
I concur in what is said as to the other contentions raised by defendant.