California DUI: The Arrest Process

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Following a traffic stop and any field sobriety tests, the criminal process in a DUI case begins when a police officer places a person under arrest.

An “arrest” occurs when a person has been taken into custody by the police and is no longer free to leave or carry out his or her own plans. A person does not have to be physically restrained by the police, with or without handcuffs, to be considered under arrest. As long as a police officer has stated that the suspect is “under arrest” and the suspect responds by complying with the directions given by the police, the arrest has occurred. Under such circumstances, the police officer is exercising his or her authority over a person as a law enforcement officer. It’s important to understand that because under the law, it is that exercise that validates the beginning of the arrest process.

An arrest can be made by a police officer under the following circumstances:

Police Officer Sees A Crime Being Committed

A police officer may lawfully arrest a person if the officer personally witnesses that person committing a crime.

For example:

A police officer pulls over a vehicle that he/she has witnessed is being driven in an unsafe or inconsistent manner, then observes that the driver is behaving erratically, and– after administering a Field Sobriety Test (FST) and Breathalyzer Test—finds that the driver’s alcohol intoxication level registers more than twice the state’s legal limit for safe operation of a vehicle. The driver will likely be placed under arrest for DUI by the police officer.

Police Officer Has “Probable Cause” To Arrest

“Probable Cause” is defined as a situation that includes facts or circumstances that cause a police officer to reasonably think that a crime has been, is being or will be committed by a particular person. If a police officer can assert that he or she had probable cause to think that a person committed (or would commit) a criminal offense, the officer can place that individual under arrest.

In the case of DUI, an officer may enforce an arrest after asserting probable cause where strong indications of DUI are present, even if FSTs, a Breathalyzer or a chemical test is not administered on the driver (either due to driver refusal or not being able to appropriately run a test).

For example:

A police officer pulls over a vehicle that is being driven in an unsafe or inconsistent manner. The officer notices empty beer containers in the back seat and the strong odor of alcohol on the driver’s breath. Upon observing these circumstances and the driver’s overall behavior, the police officer then decides to ask the driver to step out of the vehicle to perform FSTs. Based on the officer’s observations of unsafe driving, smell of alcohol, driver behavior and the manner in which the driver responded to the FSTs, the officer then places the driver under arrest based on the probable cause belief that a DUI has been committed.

Arrest Warrant Has Been Issued

An arrest warrant is a legal document issued by a judge or magistrate which sets out specific information about a person (properly identified by name) and any criminal act or acts they might have committed. In addition, the arrest warrant will specify the location(s) where the individual may be found and authorizes a police officer to arrest the person(s) identified in the warrant.

When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful.

Challenging An Unlawful Arrest

In order for an arrest to be considered valid, a police officer may not violate a driver’s constitutional rights at any time during the arrest and while that person is in police custody. At times and based on certain circumstances, the validity of the arrest can be challenged by a motion filed with the court. If an arrest is found to be invalid, any evidence that was obtained after the arrest and while an individual is in police custody is considered ‘tainted’ and may be excluded from the criminal process or proceedings.

At the Law Office of Johnson & Johnson, we will not guarantee you success; However, we will guarantee that we will take all steps to insure that your legal interest are advocated to an extent that exceeds what would be expected of a professional, experienced advocate. In doing this we can accomplish success. Call us today for a free consultation at (925) 952-8900.

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