DUI Arrest for Standing Outside the Vehicle
What happens if you are standing outside the vehicle when law enforcement arrives, and the officer does not see you sitting behind the wheel or in actual physical control of the vehicle? In that case, your DUI defense attorney should file a motion to suppress all evidence gathered as a result of the illegal DUI arrest.
Section 316.645 of Florida Statutes provides authorizes a warrantless arrest for DUI when “[a] police officer who makes an investigation at the scene of a traffic crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provision of this chapter, chapter 320, or chapter 322 in connection with a crash.”
What if an officer arrives on the scene to find the Defendant standing outside the vehicle? When the officer arrives, he does not see the Defendant driving, behind the wheel, in actual physical control of the car, or even close enough to operate the vehicle. The arresting officer is not conducting a traffic crash investigation, so that exception to the warrantless arrest for DUI requirement is not applicable.
Florida law recognizes three (3) scenarios permitting an officer to execute a warrantless misdemeanor arrest for DUI:
- the officer witnesses each element of a prima facie case;
- the officer is investigating an accident and develops probable cause to charge DUI; or
- one officer calls upon another for assistance, and the combined observations of the two or more officers are united to establish the probable cause for the DUI arrest.
Section 901.15(1) of Florida Statutes provides: “an officer has probable cause to make a warrantless arrest for a misdemeanor when the offense is committed in the officer’s presence.” If the evidence presented at the motion to suppress hearing does not prove the Defendant committed all the acts required to establish probable cause for a DUI arrest in the presence of law enforcement, and no other exception to the warrant requirement applies, the court should grant the motion suppressing all evidence gathered as a result of the illegal arrest.
In Green v. State, 20 Fla. L. Weekly Supp. 745a (4th Jud. Cir. Ct., March 14, 2013), the court “found no appellate decision holding that a driver standing outside of his motor vehicle could be deemed to be in ‘actual physical control’ of that vehicle.'”
Read more about the requirements for a warrantless arrest for DUI in Florida.
If you were accused of DUI even though the arresting officer never saw you sitting behind the wheel or being in actual physical control of the vehicle, then contact an experienced DUI defense attorney at Sammis Law Firm. With offices in Tampa, Clearwater, and New Port Richey, FL, we focus on DUI cases throughout the greater Tampa Bay area. Give us a call to discuss your case. Call 813-250-0500.
This article was last updated on Friday, May 23, 2025.