The DUI process is long and complicated, but in all DUI and criminal cases, the case usually starts with an arrest.  A DUI arrest will usually occur at or near the time of the alleged crime the person is suspected of committing.  The Fourth Amendment authorizes police to arrest as long as there is "probable cause". Probable cause is reliable evidence that a crime was committed and the person accused committed the crime.

Probable cause is found in the Fourth Amendment, which states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Probable cause is established through factual evidence, and not just suspicions or hunches. It can be established through observation, through witnesses, on expertise or knowledge of criminal activity, or on circumstantial evidence (indirect evidence). The standard in establishing probable cause is flexible and there is a balancing test that must weigh law enforcement’s right to protect the public and the public from unreasonable harassment.

Police are only required to have reasonable suspicion to stop an individual when a crime has or will be committed. Most peace officers use reasonable suspicion to stop and detain a motorist. The reasonable suspicion standard is a far less stringent standard than probable cause, but it is more than a hunch or unparticularized suspicion.  It does not require hard evidence, but there must be facts or circumstances that would lead a reasonable person to believe that a suspect has, is, or will commit a crime.

As with probable cause, reasonable suspicion looks at the whole picture, which is called the totality of the circumstances. To determine if reasonable suspicion exists, the conduct or activity, which may be criminal or even noncriminal, must rise to a level of suspicion that a crime has occurred or will occur.  The officer must have specific articulable facts to infer the law has been violated.

In almost all DUI cases, the officer will pull over a vehicle based on a traffic violation.  Reasonable suspicion of an impaired driver may by established by the officer observing any behavior that gives the officer a belief that the driver is under the influence.

Initially, the officer may observe the motorist speeding, failing to stop, straddling the line, illegal turns, drifting from one lane to another, almost causing an accident, erratic driving, failing to signal, failing to proceed when a light turns green, or even driving too slow.  When a DUI accident occurs, the accident alone can be enough for an officer may stop and detain a motorist, even if the officer did not witness the accident.

The officer does not have to believe the driver is under the influence at the time of the stop, but the officer must have a reason to pull the vehicle over, even if it is unrelated to a driving under the influence.  The officer may pull over a motorist for no seat belt, expired registration, driving with a cell phone, no headlights, malfunction lights, or items hanging from the rear view mirror. Other examples include welfare checks to ensure the safety of the driver; stops when a person is a suspect in an unrelated incident, such as domestic violence; or, the police receive an anonymous call reporting a drunk driver.

Even if a motorist is intoxicated while driving, a DUI case against him could be dismissed if the officer did not have reasonable suspicion for the initial stop. If the officer mistakenly believed the person violated a law, then no reasonable suspicion exists to justify the stop.  Officers will also conduct pretext stops, where they provide an excuse for being pulled over, but it is not the real motive for the stop.  Pretext stops may be made under any number of circumstances, but two common reasons are driving too slowly and weaving within the lane. In California, weaving is usually one factor in determining if probable cause exists.  In some instances, officers practice racial profiling, which is targeting individuals for police investigation based on their race alone.  All these cases are highly suspicious and these cases should be investigated thoroughly to determine if the evidence against the driver should be suppressed.

Once the vehicle is stopped, the officer may detain the individual briefly to investigate.  At this point, the officer will be obtaining evidence to establish probable cause to arrest the driver for a DUI.  In DUI stops, probable cause may be established for an arrest after observing the individual displaying signs of intoxication, by administering a field sobriety test, and/or a preliminary screening device test.  These observations may include the bloodshot or red/watery eyes, slurred speech, odor of an alcoholic beverage, or an open container.  The officer may also rely on other evidence such as the driver’s statements, difficulty in responding to questions, or difficulty finding license and registration.

Based on the totality of the circumstances, the officer will determine if there is enough probably cause to justify a DUI arrest.  An officer that witnesses a crime will not need a warrant to arrest. In cases that involve accidents, the officer may be called to the scene. Although the officer never witnessed any driving, California law permits certain "assumptions" based on circumstantial evidence. Factors that may be used are: driver’s location to the vehicle; witness statements, possession keys, injuries of parties involved, driver’s statements, the position of driver’s seat, registration documents, and other physical evidence that would tend to show the suspect is the driver.

Once the motorist is arrested on suspicion of DUI, police may search the suspect, incident to arrest.  The officer is not required to obtain a search warrant, but may search the space within an arrestee’s immediate control in order to promote officer safety and prevent destruction of evidence. Likewise, if the officer tows the vehicle, the vehicle is subject to an inventory search without a warrant.  Any evidence of a crime obtained during such a search can be used to prosecute.

If you have been arrested for a DUI, don’t wait, call or click on the Law Offices of Tina M. Barberi, PC today to discuss your case.