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Legality of DUI Arrest When The Police Do Not Observe Driving


Penal Code Section 836(a)(1) allows the police to arrest someone for a misdemeanor if the offense occurs in the officer's presence. In a DUI case, this means that the officer must actually observe impaired driving to be able to arrest someone for DUI pursuant to this code section.

However, there are occasions where an officer is called upon to arrest a suspect for DUI even when the offense did not occur in his or her presence. The obvious example is where the officer is dispatched to the scene of an accident and determines that one of the persons involved is impaired. What makes the arrest lawful in theses circumstances?

Vehicle Code Section 40300.5 authorizes a warrantless arrest for DUI even if the offense is not committed in the officer's presence in the following circumstances;

  1. The person is involved in a traffic accident.
  2. The person is observed in or about a vehicle that is obstructing a roadway.
  3. The person will not be apprehended unless immediately arrested.
  4. The person may cause injury to himself or herself or damage property unless immediately arrested.
  5. The person may destroy or conceal evidence of the crime unless immediately arrested.

If the DUI suspect was not involved in a traffic collision and the vehicle in question is not blocking traffic, the question arises as to what circumstances would then justify an arrest pursuant to this vehicle code section. Police officers often fail to detail the reasons behind a 40300.5 arrest where there is no traffic collision involved and the vehicle is lawfully parked.

They normally simply state in the report that an arrest was made pursuant to VC 40300.5, without giving detail. It could be argued that an arrest for DUI may always be lawful pursuant to this code section as it is always the case that a person's blood alcohol level dissipates over time and that an arrest is necessary to preserve evidence by the taking of a breath or blood sample. However, if the legislature intended this result, why doesn't the code section just simply state this?

If the arrest occurs in circumstances where the police do not observe actual driving and in the absence of a traffic collision, the case should be critically examined to determine whether there are sufficient facts to justify the arrest.

If you have been arrested for a DUI and you wish to contest the facts of your case, please call Los Angeles DUI lawyers Jeffrey Gold and Nigel Witham for a free consultation.