Sunday, April 22, 2012

Can a Cop Arrest a Person For DUI When They Were Not Driving?

It may seem like common sense to most folks, the police cannot arrest someone for a misdemeanor unless the offense takes place in their presence.  Well in California the rule is not so clear.  As a general rule, a peace officer may make a lawful arrest for DUI without a warrant for a misdemeanor offense only if he or she has probable cause to believe that such an offense is being committed in his or her presence.  With respect to a DUI offense, the “in the presence” requirement necessitates that the officer see the vehicle move. According to one DUI Attorney in Torrance CA, the Court found exactly that to be the case based on the fact that the offense did not occur in officer’s presence when vehicle, although running, was not moved. Subsequent to that Court's decision the law was changed to allow for a plethora of exceptions that in effect swallowed the rule, these exceptions will be discussed in a later post.  Nonetheless, when one officer has reasonable suspicion, based on personal observation, that a motorist may be driving while intoxicated, the arrest may be made by another officer who did not see the motorist commit the alleged DUI, but who is summoned by the first officer. Because both officers participate in the arrest, the arrest complies with the CA Penal Code.  The bottom line, at this point in CA jurisprudence, is that if the cop strolls upon you and sees you are drunk in a motor vehicle you are likely to be arrested.  Whether you can find a way out depends largely upon finding an exception to the rule.

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