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Police can't always arrest for DUI without a warrant

April 25, 2019

When we think of DUI cases, we usually think about a police officer pulling over a driver, having the driver do some field sobriety exercises, and then the officer arrests the driver where they will then be required to submit to a breath test. The driver is threatened that if they don't do a breath test that their license will be suspended for at least a year! But that's not necessarily how every case goes. What happens if a police officer finds a person who appears impaired but wasn't actually in a vehicle? These are situations where it may seem like "common sense" that the person standing right next to a car was the one driving it, but the law can be tricky.

 

This is the scenario faced by one of my clients recently. An officer responded to an area finding a car parked under a bridge. The defendant was standing fifteen feet away. The officer smelled alcohol and believed the defendant drove while drunk. The officer arrested the defendant who then refused to submit to a breath test. Florida law requires that a person's driving privilege be suspended if they fail to submit to a breath test. See Florida Statute § 316.1932. As a result of refusing to do the breath test, there was a 1 year driver's license suspension.

 

Normally this is the end of the story. But here's where it helps to have an attorney who really knows the law.

 

An officer can make a warrantless arrest for misdemeanor DUI in any of the following three circumstances:

  1. the officer personally witnesses each element of the crime of DUI;

  2. the officer is investigating a crash and during the accident investigation develops probable cause to charge DUI; or

  3. one officer calls upon another for assistance and the combined observations of the two or more officers are united to establish the probable cause for the arrest (often called the “fellow officer” rule).

 

See Florida Statute § 901.15 and Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997).

 

This means that the police aren't allowed to arrest someone for DUI without a warrant if the facts don't fit one of the three circumstances described above.

 

Today we were elated to learn that the Bureau of Administrative Reviews at the Department of Highway Safety and Motor Vehicles agreed with us and set aside my client's suspension. My client should never have been arrested because there was no evidence to place my client in physical control of the car and thus should never have been asked to do the breath test. 

 

If you are arrested for DUI, there are major consequences for your driver's license but there is also a criminal case. Make sure you have an attorney who understands the law and can help you make wise decisions in navigating all of the issues in your case.

 

Call today at (407) 925-2949!

 

 

 

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