Category: arrest

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!

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.

I Just Got Arrested, Now What?

After you are arrested, continue to assert your 4th Amendment right to refuse search (except when arrested for DUI) and 5th Amendment right to remain silent.

arrested

right to remain silent

It is very important to remain silent because your own statements can be used to convict you. Wait until your attorney is present before you make any statements to police.

Statements that seem innocent such as, “I didn’t mean to do it,” “I drank much earlier today,” or “he pushed me first,” are actually confessions to a crime.

Tips and Tricks to Remaining Silent

arrested

Confessions are an easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to remain silent, the police have developed strategies to get you to talk.

“if you didn’t do anything wrong, tell me what happened.”

You may be guilty of a crime even though you didn’t do anything “wrong.” For this reason, it is best to say nothing to police until your attorney is present.

waiting for you to start talking

If you start a conversation with police, you have waived the right to remain silent. Remember: “Any statements you make can be used against you in a court of law.”

“you have the right to remain silent…”

The Rule

If police do not give you this well-known Miranda warning, your confession could be excluded from criminal proceedings.

Miranda Limitation

However, the Miranda rule only excludes confessions that occur during “custodial interrogations.” Those are interrogations that occur in police custody, typically in a holding area or at a jail.

Police Strategy

Police usually follow the Miranda warning with “Do you want to waive these rights and talk to me?” You can invoke your right to remain silent by stating, “No. I don’t want to talk to you.” If you remain silent, police may continue to talk to you. You can re-invoke your right at any time by saying “I don’t want to say anything else, I want to talk to a lawyer.”

right to refuse search

It is also important to refuse search because evidence found during the search can be used to convict you. If you consent to search of your property, you waive your right to contest the search in court.

Exception: Arrested for DUI

If you are arrested for DUI, you must provide a blood, breath, or urine sample to determine you blood alcohol concentration (BAC). Failure to provide a sample can result in additional criminal charges AND further DMV action against your license.

Tips and Tricks to Refuse Search

arrested

Consensual search is any easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to refuse search, the police have developed strategies to convince you to consent.

“sign a consent to search form to get your phone back”

If police believe there is evidence of a crime on your phone, they will not return it to you unless you consent to search. We all “need” our smart phones, but you will likely be better off refusing search and picking up a temporary phone.

“if you don’t consent, we will get warrant”

You have the right to insist police obtain a warrant, except when you are arrested for DUI. Requesting a warrant will delay the police, so be polite and let them know you respect them and their job.

“if you have nothing to hide, let us search”

Your personal items are private and you have the constitutional right to refuse search.

“if you work with me, I’ll work with you”

Even if you cooperate with police, they are not legally required to help your case.

Russell Brown
Criminal Defense Attorney

Police Stops and Your Rights

tips on safely interacting with police during stops

Knowing your duties, rights, and law enforcement objectives can help you safely navigate an encounter with law enforcement. Below is a brief discussion of things to consider if the police stop you.

step 1: know your dutiespolice

police

Identify Yourself

You must identify yourself if police have probable cause to believe you committed a crime, have a warrant for your arrest, or are in violation of probation or parole.

Provide Your Driver’s License

You must provide your driver’s license if you are pulled over while driving.

Probation or Parole

You must admit that you are on probation or parole if doing so is a condition of your probation or parole.

step 2: know your rights

police

Remain Silent (5th Amendment)

Except for the duties above, you are not required to respond to questions.

Refuse Search (4th Amendment)

You do not have to allow police to search you, your possessions, or your vehicle, unless submitting to search is a condition of probation or parole.

Ask if You are Free to Leave (4th Amendment)

If you are not free to leave, law enforcement must have a reason for detaining you.

step 3: know the police

police

Authority

Authority figures do not like signs of disrespect, such as being ignored, or rude, impolite, or offensive behavior.

Crime-fighting

The modern policing focuses on crime-fighting. If police believe you are obstructing or delaying them from this objective, the could arrest you or use force against you.

Armed

Consider that most police are armed and some carry fully automatic assault weapons.

Immunity

Officers are immune to most civil lawsuit and rarely face criminal prosecution or internal discipline. Therefore, police have few if any consequences for harming you or violating your rights.

What Can I Say to Police?

  1. I respect law enforcement and the job you do.
  2. However, I am not going to consent to a search of myself, my property, or my vehicle.
  3. I will not resist you, but I will not consent to my detention, search, or seizure.
  4. Nor will I answer any questions without my lawyer present.
  5. With that being said, am I free to leave?

What Can I Do if Police Violated My Rights?

If you can prove police misconduct, the judge could dismiss your criminal case. You could also sue the law enforcement for violating your established constitutional rights.