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Warrantless DUI Arrest

Can police make a warrantless DUI arrest if they did not observe the suspect driving?

Yes. Police can make a warrantless DUI arrest even if they did not observe the suspect driving.

Observation of Crime Usually Required

Generally, police must observe a crime before they can make a warrantless arrest. (see Penal Code § 836) However, a peace officer with probable cause could arrest a person for misdemeanor driving under the influence of alcohol or drugs not committed in the officer’s presence where evidence could be destroyed unless the person was immediately arrested.

Observation of Driving Not Required for Warrantless DUI Arrest

Vehicle Code § 40300.5(e) created an exception to the presence requirement of Pen C § 836, because evidence could be destroyed by the simple passage of time unless the person was immediately arrested. However, this does not authorize a peace officer to forcibly enter a residence to effect such an arrest. People v. Schofield (Cal. App. 2d Dist. 2001), 90 Cal. App. 4th 968.

Police can also make a warrantless arrest if:

  • The driver is involved in a traffic crash.
  • The driver is observed in or about a vehicle that is obstructing a roadway.
  • The driver will not be apprehended unless immediately arrested.
  • The driver may cause injury to themselves or damage property unless immediately arrested.

Specific Examples

In Shaffer v. Department of Motor Vehicles, the warrantless DUI arrest of the driver was valid even though the arresting officer did not see plaintiff drive. In that case, a citizen complained and the officer observed visible paint transfer on the driver’s car and that the driver was intoxicated to the point of incompetence. The 1st District Appellate Court ruled that under Vehicle Code § 40300.5, when there has been a traffic accident, an officer having probable cause to believe that an involved driver “had been driving while under the influence of intoxicating liquor…” may make an arrest without a warrant. 

Similarly, in People v. Burton, 219 Cal. App. 4th Supp. 9, the warrantless arrest for misdemeanor driving under the influence was proper where a civilian witness observed defendant driving erratically and an officer then located defendant standing near his truck, noticed signs of intoxication, and confirmed that he had been driving the truck.

If Police arrested you for DUI but did not observe you drive, contact RBX Law to discuss your case!

Can Police Follow a Suspect for No Reason?

Yes, police can follow a suspect for a reasonable period of time even if they have no reason to believe the suspect committed a crime.

Police do not need reasonable suspicion to follow a suspect in California if the encounter remains consensual. Under California law, consensual encounters between law enforcement and individuals do not trigger Fourth Amendment scrutiny. A consensual encounter occurs when a reasonable person would feel free to disregard the police and go about their business. For example, officers may approach someone in a public place and converse with them without any suspicion of criminal activity. However, the encounter becomes a detention if the individual is not free to leave or terminate the interaction.1

If the police action escalates to a detention, reasonable suspicion is required. A detention occurs when an officer restrains an individual’s liberty through physical force or a show of authority, and a reasonable person would not feel free to leave. Reasonable suspicion must be based on specific, articulable facts that suggest the person is involved in criminal activity.2

How Long can Police Follow a Suspect?

Continued police surveillance violates the 4th Amendment if it is unreasonable. Surveillance is unreasonable if it infringes upon an individual’s reasonable expectation of privacy or is conducted in a manner that is excessive or unjustified under the circumstances.3 There is no bright line on when continued surveillance becomes unreasonable. However, to violate the 4th amendment, the surveillance must be more than following a suspect for a short time. Ultimately the reasonableness of the surveillance depends on the specific facts of the case.

Additionally, California statutes clarify that law enforcement personnel may follow or surveil individuals. Officers can follow suspects as a part of their duty to investigate suspected illegal activity or misconduct. Their surveillance must be supported by articulable suspicion.4 This aligns with the principle that reasonable suspicion is necessary for more intrusive actions, such as detentions or searches, but not for mere observation or following in public spaces.

  1. People v. Kidd, 36 Cal. App. 5th 12, People v. Linn, 241 Cal. App. 4th 46. ↩︎
  2. Arburn v. Department of Motor Vehicles, 151 Cal. App. 4th 1480, People v. Bennett, 17 Cal. 4th 373. ↩︎
  3. United States v. Martin, 753 F. Supp. 454, 463. ↩︎
  4. Cal. Civ. Code section 1708.8. ↩︎

Can a Prisoner Demand Trial or Sentencing?

Yes. A prisoner can demand trial or sentencing on a pending case.1 To make this request the prisoner. must:

  • Contact the district attorney where the charge is pending;
  • Tell the district attorney where they are incarcerated;
  • Demand to come to court for trial or sentencing.

The prisoner must make this request in writing. In response, the District Attorney obtains an order for the agency holding the prisoner bring them to court. If, however, the District Attorney does not bring the prisoner to court within 90 days, the judge must dismiss the case.

The prisoner can request or agree to a continuance of the 90 day deadline. The court must enter the prisoner’s agreement to continue the deadline into the court’s minutes.

Qualifications for Prisoner to Demand Trial

The prisoner must be serving:

  • A sentence of 90 days or more in county jail;
  • A term in state prison;
  • A term in a Youth Authority institution;
  • A state rehabilitation center.

The prisoner must have a pending charge in California.

Charges Filed After Incarceration

A prisoner may demand trial or sentencing on charges filed after the prisoner is incarcerated.

Contact us to discuss a prisoner’s options on pending cases under Penal Code § 1381.

Penal Code § 1381.↩︎

Good Time Credit Limited under PC § 2933.1

Good time credit is limited under Penal Code (“PC”) § 2933.1. This limitation applies to persons convicted of violent felonies.

Penal Code § 4019 – Good Time Credit

A person incarcerated in a county jail can earn “good time” credits. To qualify for good time credits, the prisoner must serve a minimum of 4 days. In addition, the prisoner must comply with jail regulations and perform labor. If the prisoner meets these requirements, they earn four days of credit for every two days served in jail.

Example: A defendant who is in custody for 100 days would earn 100 days of good time credits.

Good Time Credit Limited by PC § 2933.1

Persons convicted of violent felonies listed in Penal Code § 667.5 can only earn 15% good time credits while in county jail.

Example: A defendant who is in custody for 100 days would earn 15 days of good time credits.

Penal Code § 667.5 Violent Felonies

Violent felonies include murder, mayhem, robbery, arson, kidnapping, and many other violent crimes.

In addition, a violent felony is any felony:

  • in which the defendant inflicts great bodily injury;
  • on a person other than an accomplice;
  • which has been charged and proved.

Charged means that the allegation of a violent felony under Penal Code § 667.5 appears on the face of the complaint or information.

Proved means that allegation is admitted by the defendant, or found to be true by a judge or jury.

PC § 2933.1 Applies to Credits Earned Before Sentencing

Before the defendant is convicted of a violent felony, they earn regular good time credits of 2+2. However, once they are convicted, the limitation in Penal Code § 2933.1 applies. At sentencing, their credits are re-calculated and their good time credits will be reduced to 15%.

The defendant cannot earn more than 15.00%. The credits are rounded down to the closest whole number that is not more than 15%. (see People v. Ramos (1996) 50 Cal.App.4th 810.)

Example: A defendant who served 213 actual days in custody would receive 31 days of good time credits. 15% of 231 is 31.95. Therefore, 31 is the larges whole number that does not exceed 15%. Contact RBX Law if you have a question about good time credits.

Can Local Police Stop Cars on the Freeway?

Yes. Local police can stop cars on the freeway or highway. In fact, any member of California law enforcement can generally enforce the laws anywhere in the state. This includes sheriffs, park rangers, harbor patrol, railroad police, and many other branches of law enforcement.

Why Can Police Stop Cars on the Freeway?

In California, almost all state and local law enforcement agencies have authority throughout the entire state. This means they can stop a vehicle on the freeway and can arrest persons for whom they have probable cause. For an exhaustive list, see Penal Code § 830-832.18.

Some of the better known state agencies are:1

  • California Highway Patrol
  • University of California Police
  • Cal State University Police
  • Department of Corrections and Rehabilitation
  • Department of Fish and Game
  • Department of Parks and Recreation
  • Department of Forestry and Fire Protection
  • Department of Alcoholic Beverage Control
  • California Exposition and State Fair Marshalls
  • Department of Cannabis Control

There are, however, many many more state agencies that have police authority throughout the state:

  • Department of Consumer Affairs2
  • Department of Motor Vehicles3
  • California Horse Racing Board4
  • Department of Housing and Community Development5
  • Department of Financial Protection and Innovation6
  • Department of Justice7

There are also many local agencies that have police powers anywhere in the state of California:

  • All county sheriffs and city police officers8
  • Community College Police9
  • Housing Authority Patrol Officers10
  • Municipal Security Officers11

Local agencies have some limits on their policing. Fore example, local police can only police:

  • Public offenses in their jurisdiction;
  • With permission from other law enforcement;
  • To prevent danger to person or property or escape of the perpetrator.

Three agencies from other states have limited police power to stop cars a freeway. They are the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, and the Arizona Department of Public Safety. These agencies have police powers up to 50 miles inside California if:

  • The California Highway Patrol requests their help, or
  • Law enforcement services are necessary to preserve life 12
  1. Penal Code § 830.2 ↩︎
  2. Penal Code § 830.3(a) ↩︎
  3. Penal Code § 830.3(c) ↩︎
  4. Penal Code § 830.3(d) ↩︎
  5. Penal Code § 830.3(j) ↩︎
  6. Penal Code § 830.3(l) ↩︎
  7. Penal Code § 830.1(b) ↩︎
  8. Penal Code § 830.1 ↩︎
  9. Penal Code § 830.32 ↩︎
  10. Penal Code § 830.31 ↩︎
  11. Penal Code § 830.34 ↩︎
  12. Penal Code § 830.39↩︎

Can Police Order You to Exit Your Car?

The answer is yes. Police can order you to exit your car when they pull you over.

Why Can Police Order You to Exit Your Car?

The reason police can order you to exit your car is for officer safety. Police can make this order under any circumstances:

  • Police can order people out of a car even if they do not have probable cause or reasonable suspicion to believe a crime has committed.
  • Police can order people out of a vehicle even if they do not believe those people are armed or dangerous.
  • Police can order all occupants out of the car.

Why do Police Have This Power?

In 1977, Harry Mimms was driving in Philadelphia when he was stopped for having an expired license plate. One of the officers asked Mimms to exit his vehicle. When Mimms exited, the driver noticed a bulge in Mimms jacket. The officer patted Mimms down and discovered a loaded firearm in his waistband.

Mimms claimed that the officer’s order for him to exit the vehicle violated his 4th Amendment right to be free from unreasonable search and seizure. The United States Supreme Court reviewed the case and ruled that the officer had not violated Mimms’ 4th Amendment rights. (see Pennsylvania v. Mimms (1977) 434 U.S. 106)

The Supreme Court noted that the officer had no reason to believe Mimms was committing a crime. However, the officer claimed it was his usual practice to order all drivers out of their vehicle during a traffic stop. The prosecution argued that the officer’s practice was meant to ensure officer safety during a traffic stop.

The Supreme Court ruled that officer safety outweighs the minor 4th Amendment intrusion of having a driver or passenger exit a vehicle. According to one study, 30% of police shootings occurred when an officer approached a person seated in a vehicle. A significant percentage of murders of police officers occurs when the officers are making traffic stops. In addition, police can be hit by passing traffic when standing outside the driver window. The 4th Amendment intrusion of having a passenger exit a vehicle is minimal by comparison.

What if You Refuse to Exit Your Car?

If you refuse to exit, you could be charged with resisting or delaying arrest under Penal Code § 148. This offense is a misdemeanor punishable by a maximum of 364 days in jail.

Advice

If an officer asks you to exit your vehicle, you should clarify whether he is giving you an order or merely asking you to exit. While you should follow a police order, you do not have to comply with a voluntary request.

Do you think this law gives police too much power? You should raise your concerns with your state representative or senator.

Probable Cause

Probable cause is an exception to the warrant requirement under the 4th Amendment. In other words, police do not need a warrant to arrest a person as long as they have probable cause.

Definition

Probable cause means that the facts known to the officer warrant a reasonable belief that a crime has occurred or that evidence of a crime is located in a specific place. Probable cause is based on the totality of the circumstances and does not need to rely on any one fact. It does not have to be certain and can be based on probabilities and common sense conclusions. (United States v. Martin (2010) 613 F.3d 1295.)

Probable cause requires more than mere suspicion but does not necessitate facts sufficient to establish guilt. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

What Can Police Do if They Have Probable Cause?

Police arrest a person if they reasonably believe that person committed a crime. Police can search an area if they have reason to believe there is evidence of a crime in that area.

Specific Examples

An officer may arrest a person when multiple witnesses identify the suspect as the shooter in a homicide. (Moorer v. City of Chicago (2024) 94 F.4th 715.)

An officer may arrest a felon for unlawfully possessing a firearm after they observe a firearm in their car. (Young v. City of Chicago (2020) 987 F.3d 641.)

An officer may arrest a person when they observe facts consistent with drug transportation based on their previous experience with drug transportation. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

Insufficient Probable Cause

An officer cannot arrest a person based on their presence at a suspected stash house and traveling in an indirect route to their location. (United States v. Cervantes (2012) 678 F.3d 798.)

An officer cannot arrest a person for being near a crime without indications that the person is involved in the crime. (Williams v. City of Chicago (2013) 733 F.3d 749.)

An officer cannot arrest a person for possessing marijuana unless there is some indication the marijuana is being possessed or sold unlawfully. (People v. Lee (2019) 40 Cal.App.5th 853.) If you believe officers arrested you without probable cause, you should consult an attorney. You could contest your arrest in court and ask the judge to suppress evidence obtained unlawfully by police. You can also file a complaint or sue the police for their unlawful arrest.

Reasonable Suspicion

Reasonable suspicion is an exception to the warrant requirement under the 4th Amendment. In other words, police do not need a warrant to stop, detain, or investigate a person as long as they have reasonable suspicion.

Definition

Reasonable suspicion means that the facts known to the officer warrant a reasonable belief that a crime has been committed or some other criminal activity is afoot. (Terry v. Ohio (1968) 392 U.S. 1.)

Reasonable suspicion is less than probable cause, but it cannot be mere speculation or hunch. (People v. Rodriguez (2006) 143 Cal.App.4th 1137.)

What Can Police Do if They Have Reasonable Suspicion?

Police can stop, detain, and investigate persons they suspect of being involved in criminal activity. They may detain persons long enough to determine whether the suspicious activity is criminal activity. (Florida v. Royer (1983) 460 U.S. 491.) In addition, police can pat down (“frisk”) the person for weapons for their safety. However, police cannot arrest a person unless they have probable cause.

Probable cause is a higher standard that requires evidence that the suspect committed a crime. In contrast, reasonable suspicion only requires suspicion of criminal activity. (People v. Celis (2004) 93 P.3d 1027.) Put another way, probable cause means a crime has occurred, while reasonable suspicion means a crime may have occurred.

Specific Examples

An officer may stop a vehicle after running its license plate and learning that the registered owner had a revoked license. (Kansas v. Glover (2020) 589 U.S. 376.)

An officer may detain a suspect based on an anonymous 911 tip of assault with a firearm if the 911 tip accurately described the suspect in detail. (People v. Dolly (2007) 40 Cal.4th 458.)

An officer may stop a vehicle for swerving within a lane for 1/2 of a mile (People v. Bracken (2000) 83 Cal.App.4th Supp 1.)

Insufficient Reasonable Suspicion

An officer may not stop a suspect based only on their presence in a high crime area. (People v. Flores (2024) 15 Cal.5th 1032.)

An officer cannot detain a vehicle for a dog sniff without specific evidence of drug involvement. (People v. Gyorgy (2023) 93 Cal.App.5th 659.)

An officer cannot pat down a suspect based only on their past criminal history. (People v. Pantoja (2022) 77 Cal.App.5th 483.)If you believe officers detained you without reasonable suspicion, you should consult an attorney. You could contest your detention in court and ask the judge to suppress evidence obtained unlawfully by police. You can also file a complaint or sue the police for their unlawful detention.

Can Police Pull You Over For Swerving?

The answer is yes. Police can pull you over for swerving, even if you do not swerve into other lanes.

Swerving Into Other Lanes

Police can lawfully pull you over for any violation of the Vehicle Code. Swerving across lanes lines is a violation of California Vehicle Code § 21658.

California Vehicle Code § 21658 requires drivers to:

  • Drive as nearly as practical within one lane;
  • Change lanes only when it is reasonably safe.

A driver violates this law by driving in two lanes at once (lane straddling), or drifting into a lane when it is not safe.

The punishment for violating section 21658 is a fine. The level of offense is infraction. This means violating this law does not result in jail or prison confinement.

Swerving Inside Your Lane

It is not a violation of the Vehicle Code to drift within one lane. (United States v. Colin (2002) 314 F.3d 439.) In fact, it is normal for a vehicle to move side to side within a lane as it travels. But police can still pull you over for drifting inside a lane. How is this possible?

Answer:

Police can pull you over for swerving because it is considered erratic driving under California case law. Erratic driving gives police reasonable suspicion to believe the driver is impaired. Therefore, police can initiate a traffic stop even though the swerving does not violate the vehicle code.

Examples of “Erratic” Driving:

Summary

Swerving over the lane line is a violation of the California Vehicle Code, punishable as an infraction. It gives police reason to initiate a traffic stop. However, even if the swerving occurs within a lane police can initiate a traffic stop to determine whether the driver is impaired (IE: under the influence of drugs or alcohol or experiencing a medical emergency).

Because vehicles seldom drive perfectly straight, police have the power to stop practically any vehicle.

Do you think this law gives police too much power? You should raise your concerns with your state representative or senator.

Don’t go to Jail Memorial Day Edition

This Memorial Day weekend law enforcement will be in out in force. This means more police on the streets, and more DUI enforcement, including DUI checkpoints. You can avoid going to jail on Memorial Day by taking a few precautionary steps…

Avoid suspicious behaviors:

1) Do not drink and drive;

2) Do not openly carry alcohol (use a backpack to transport alcohol in public);

3) Do not get so intoxicated that you cannot take care of yourself. If you do get really intoxicated, make sure you have friends with you who can help; 

4) Do not exchange alcohol in front of the liquor store.

If you find yourself in an encounter with law enforcement, know your rights:

1) You don’t have to answer questions. Tell officers: “Respectfully, I have nothing to say.” 

2) You do not have to provide identification unless driving. However, it is usually easier to provide identification unless you are underage or have a warrant.

You can:

a) Make a legal u-turn to avoid a DUI checkpoint;

b) If you are stopped, roll down your window just enough to provide your documents;

c) Refuse to do “sobriety tests“;

d) Refuse to do the follow the finger eye test;

e) “Respectfully decline” to do anything an officer requests, including getting out of your car, unless the officer makes clear they are ordering you do comply.

You should:

1) Comply with an officer’s lawful order unless it jeopardizes your safety;

2) Complete a breath test after you are arrested (handcuffed) for DUI (if you fail to do so your license could be suspended for 1 year);

3) If you are under 21, complete a breath test upon order by the officer;

4) Choose breath test if you are concerned about what will show up in your blood (including prescribed drugs);

5) Say hi to law enforcement and tell them to have a good day (unless you are extremely intoxicated).

You should not:

1) Physically fight with law enforcement unless it is self defense;

2) Be rude, aggressive, or belligerent with law enforcement;

3) Run or flee from law enforcement;

4) Reach around in your car before the officer comes to your window. 

If you are arrested:

1) The only thing you should say is that you want a lawyer;

2) Do not ask what is going to happen to you;

3) Do not tell your side of the story; 

4) If it is your first arrest and the offense does not involve violence, you have a good chance of being released without having to pay bail;

5) Before your court date, consult with a lawyer regarding your case.