DUI Arrest: Death Of The Presence Requirement

Orange County DUI Attorney

Ordinarily, a police or CHP officer is permitted to make a warrantless arrest for a misdemeanor offense, including an Orange County DUI, only when the DUI or other misdemeanor crime is committed in the officer’s presence. DUI Lawyers in Orange County know that “presence” means that the officer must be able to testify, on the basis of his or her senses, to acts that constitute every material element of the offense. People v. Welsch(1984) 151 Cal.App.3d 1038. If a driver was arrested for a DUI on the basis of the police or CHP officer’s personal observations, the only potential issue for a drunk driving suppression motion by the driver’s Orange County DUI Lawyer is whether the officer’s observations before the DUI arrest were sufficient to establish reasonable suspicion that a DUI occurred.

However, the legislature made a special law to get around this presence requirement in cases of driving under the influence of alcohol or DUI drugs. DUI Attorneys in Orange County are familiar with vehicle code Section 40300.5 which make several exceptions to the presence requirements in cases of a DUI arrest. This section allows an officer to make a warrantless arrest for DUI not committed in the officer’s presence when the officer has reasonable cause to believe that the driver has been driving under the influence of drugs or alcohol and the driver:

· is involved in a traffic accident;

· is observed in or about a vehicle that is obstructing a road;

· will not be apprehended unless immediately arrested;

· may cause injury or property damage unless immediately arrested; or

· may destroy or conceal evidence unless immediately arrested.

This last exception applies in almost every DUI investigation. It means that the officer can arrest a driver for a DUI not committed in his or her presence in virtually every instance in order to get a blood test or breath test.
Other judicially created exceptions to the presence requirement include allowing an officer who is assisting in a DUI investigation to make the arrest based on the personal observations of another officer. Dyer v. DMV (2008) 163 Cal.App.4^th161. Also, the cop can make the arrest when informed by a reliable third party of the third party’s observations of the driving. Packer v. Sillas (1976) 57 Cal.App.3d 206. The police can even kick in a person’s door and enter their home to get a blood or breath sample from someone whom they have reasonable suspicion to believe was driving under the influence of alcohol or drugs.
If you have been arrested for DUI in Orange County and would like to consult with an experienced and highly qualified Orange County DUI lawyer call the Law Offices of EJ Stopyro at (949) 559-5500 today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro