If police wish to make a misdemeanor arrest without an arrest warrant, the officer must have reasonable cause to believe that the person has committed a misdemeanor in his or her presence.  This means: the officer has to witness the violation.  If someone else reports the violation to the officer and the officer makes the arrest based on the information given to him or her, the arrest is unlawful.

A misdemeanor is committed in the presence of the officer if and only if the officer can testify to having personal knowledge of each element that makes up the misdemeanor violation.  In a DUI situation, that would mean that the officer must actually see the act of driving under the influence.

However, the legislature has made exceptions to the requirement in DUI cases that the DUI offense be committed in the presence of the officer.  The legislature enacted Vehicle Code Section 40300.5, that reads:

“In addition to the authority to make an arrest without a warrant, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person has been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exist:

(a) The person is involved in a traffic accident

(b) The person is observed in or about a vehicle that is obstructing the roadway

(c) The person will not be apprehended unless immediately arrested

(d) The person may cause injury to himself or herself or damage property unless immediately arrested

(e) The person may destroy or conceal evidence of the crime unless immediately arrested.”

Subsection (a) is quite easy to understand: if an officer arrives at the scene of an accident and encounters a motorist suspected of having driven under the influence, the officer may arrest the driver. In this scenario, the officer did not personally witness the driving, but may have learned from other motorists or witnesses who actually saw the driver suspected of driving under the influence drive one of the vehicles involved in the accident.

Subsection (b) is also pretty straightforward.  If a person is passed out in a vehicle that is obstructing traffic, for example, and the officer suspects the motorist having driving under the influence, the officer may arrest the driver even though the officer did not actually witness the person driving.

The truly murky and vague subsections are (c), (d) and (e), because every DUI could fall into any or all of these three categories.

In addition, the legislature added to Section 40300.6 the language that “Section 40300.5 shall be liberally interpreted to further safe road and the control of driving while under the influence of an alcoholic beverage or any drug in order to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident.”

The services of a competent DUI attorney can help position your case to avoid the pitfalls of Sections 40300.5 and 40300.6.

Now, however, times have changed for the better. If a person is able to successfully reduce the charges
of a DUI with a prior DUI to a “wet reckless,” the individual can qualify for a restricted license 91 days
after the conviction, instead of having to wait one year, to drive again!