Entry of a Dwelling for a DUI Arrest.
It is not uncommon for the police to attend a dwelling to arrest someone for DUI. This often occurs after a traffic collision and a hit and run where the license plate of the vehicle was obtained by a witness. The police would then attend the residence of the registered owner to investigate the owner of the suspect vehicle for a DUI and Hit and Run. What generally happens, is that the occupant of the residence is persuaded by the police to come outside for questioning so that an entry of the dwelling becomes unnecessary. However, what happens if the occupant refuses to answer the door or come outside?
The warrantless entry of a dwelling to make an arrest is presumed to be an unlawful search and seizure in violation of the Fourth Amendment of the U.S Constitution, absent exigent circumstances. The courts have decided that if there is time to obtain a warrant, it must be obtained. If a person consents to the police entry, there is no issue. If the police follow a driver believed to be under the influence of alcohol and the driver runs into his house, the courts have decided that the police may enter the dwelling "in hot pursuit" if there is an imminent danger that the person will drive drunk again.
The separate question of what constitutes "exigent circumstances" justifying an entry into a dwelling without warrant necessitates the showing of evidence that an emergency situation requiring swift action exists. Swift action must be shown to be needed to prevent imminent danger to life or serious damage to property, or to prevent imminent escape or destruction of evidence. The courts have decided that a warrantless entry to arrest someone so that a
blood test could be obtained to preserve evidence does not amount to "exigent circumstances".
In any case where a defendant is arrested following a non-consensual entry into a dwelling, the legality of the search and seizure should be challenged by the filing of a Motion to Suppress Evidence pursuant to Penal Code 1538.5.