Tag: police powers

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 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.