Warrantless Arrest for DUI

One of the first questions your criminal defense attorney should ask is: “Was the detention and arrest for DUI legal?”

Most DUI cases involve a warrantless arrest. An officer can make a warrantless arrest for misdemeanor DUI in any of the following three circumstances:

  1. the officer personally witnesses each element of the crime of DUI;
  2. the officer is investigating a crash and during the accident investigation develops probable cause to charge DUI; or
  3. 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 arrest (often called the “fellow officer” rule).

When an arrest is made outside of one of those three circumstances, the DUI defense attorney can file a motion to suppress all evidence gained as a result of the illegal detention or arrest.

Once the motion is filed, the burden is often on the prosecutor with the State Attorney’s Office to show that the arrest is lawful and that evidence should not be suppressed.

Attorney for the Warrantless DUI Arrest in Tampa, Florida

If you were arrested for DUI without a warrant, then contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.

We can help you understand why motions can be filed to contest whether the arresting officer had probable cause for the arrest. Additionally, we understand the exceptions to the warrant requirements in Florida.

When the arresting officer didn’t actually witness all elements of the DUI offense, the court might throw put evidence. If evidence is suppressed, then your entire case might be dismissed.

The DUI defense attorneys at the Sammis Law Firm represent clients throughout Hillsborough County, and the surrounding county of Hernando County, Pasco County, Pinellas County, Manatee County, and Polk County, FL. Let us put our experience to work for you.

Call (813) 250-0500 today.

Exceptions to the “In Presence” Requirement for a DUI Arrest

Section 901.15(1), Florida Statutes, states that an officer may arrest a person without a warrant if that person has committed a misdemeanor in the presence of the officer.

The general rule is that an officer may make a warrantless arrest for a DUI if the arresting officer observes all the elements sufficient to establish probable cause. If the arresting officer did not witness all the elements of a DUI, there are several exceptions to the warrant requirement including:

  • The first exception is the traffic crash provision which permits an officer to make a misdemeanor DUI arrest if the officer’s investigation of the crash establishes “reasonable and probable grounds” for such an arrest. Florida Statute Section 316.645, Florida Statutes.
  • The second exception is the “Fellow Officer Rule” which might allow an arrest if there is more than one officer with knowledge and the “collective knowledge” of the officers gives probable cause for arrest.
    • The arrest is valid if the arresting officer acts upon the direction of or as a result of communication from a fellow officer or another police department who had probable cause or reasonable suspicion. Voorhees v. State, 699 So.2d 602 (Fla. 1997). This rule does not require that the information actually be communicated to the arresting officer as long as the information exists. Id. at 610.
    • The communication to the “fellow officer” must be made by an officer and not an ordinary citizen.
      • In Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D850a], a security guard at a condominium complex assisted the defendant from a vehicle and believed the driver was impaired. The guard called 911. When the officer arrived the defendant was in a chair outside the guardhouse.
      • The Court suppressed the evidence because the officer did not witness actual physical control by the defendant. The court stated:
        • “If [the court] were to permit the security guard’s observations which were relayed to the police as sufficient to constitute the officer’s knowledge of an essential element of a crime, then as to misdemeanors there would be no point in the statutory requirement that the misdemeanor be committed in the officer’s presence. Any citizen could walk up to an officer and relate the commission of a misdemeanor by someone, and the officer would have probable cause to arrest. This is clearly inconsistent with the statutory requirements. See § 901.15(1).”
    • In some cases, the officer must determine if the officer acted outside his jurisdiction is a “fellow officer” within the meaning of the rule. In general terms, an officer of a county or municipality has no official power to arrest an offender outside the boundaries of the officer’s county or municipality. State v. Shipman, 377 So.2d 1195 (Fla. 4th DCA). There are exceptions to this requirement.
      • Sec. 901.25 Florida Statutes provides that if an officer observes a person commit a crime in her own jurisdiction then the officer may pursue that person into another jurisdiction to affect an arrest (often called the hot pursuit exception).
      • The other exception is that an officer may make a DUI arrest in another city if there is a mutual aid agreement between the jurisdictions.
  • The third exception is whether the officer made a valid citizen’s arrest. An officer may make an arrest outside of her jurisdiction as a private citizen for a felony or a breach of peace occurring in her presence. Phoenix v. State, 428 So.2d 1024 (1984).
    • The offense in the case at bar is a misdemeanor and therefore must constitute a breach of peace. There are many DUI cases where a citizen’s arrest has been valid.
    • In Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985) an off-duty police officer saw a vehicle driving recklessly. The Court stated that an off-duty police officer could arrest a person as a lawful citizen’s arrest for DUI. It further stated that operating a motor vehicle while intoxicated is an activity that threatens the public security and as such amounts to a breach of peace.
    • In State v. Furr, 723 So.2d 842 (Fla. 1st DCA 1999) [23 Fla. L. Weekly D2514a] the Court stated that an officer outside his jurisdiction could make a citizen’s arrest for a DUI regardless if any other vehicles are involved.
    • In Fox v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 733 (Fla. 9th Cir. Ct. Sept. 27, 2002) the Court stated that the citizens who observed the defendant passed out behind the wheel could arrest the defendant.
    • The courts have also considered cases in which the citizen arrest was not valid including:
      • In State v. Earle, 17 Fla. L. Weekly Supp. 953a (Fla. 6th Cir. Ct. April 12, 2010) The Court stated that citizens do not have the right to stop a person for a traffic violation. Therefore the officer outside his jurisdiction could not stop a vehicle for a traffic infraction and then conduct a DUI investigation.
      • In State v. Diaz, 10 Fla. L. Weekly Supp. 917e (Fla. Dade Cty. Ct. Aug. 11, 2003) the officer could not make a citizen’s arrest outside his jurisdiction even though it was reported to him that one car had hit another and the officer followed the vehicle but witnessed no erratic driving.
      • In Charlotin v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 907a (Fla. 9th Cir. Ct. May 25, 2005) the court stated that State v. Furr stands for the proposition that DUI constitutes a breach of the peace only where there is erratic driving.

A DUI is a misdemeanor offense under Florida law. See Sections 316.193(2)(a), 775.08(2), 901.15(1), Fla. Stat. Generally, a law enforcement officer may only make a warrantless misdemeanor arrest when the officer has actually witnessed the commission of the offense. See Section 901.15, Florida Statutes (2015).

DUI Crash Investigation that Develops Probable Cause

Pursuant to Section 316.645, Florida Statutes, a “police officer who makes an investigation at the scene of a traffic crash may arrest any driver of a vehicle involved in the crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter, chapter 320, or chapter 322 in connection with the crash.”

Thus, a warrantless arrest at the scene of a traffic accident for misdemeanor DUI is the exception to the general statutory requirement that an officer can only make a warrantless misdemeanor arrest if the offense is committed in his presence. See State v. Hemmerly, 723 So. 2d 324 (Fla. 5th DCA 1999) [23 Fla. L. Weekly D2666b].

Probable cause for an arrest may be based on circumstantial evidence and common sense inferences coupled with the general knowledge and experience of the officer. See Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1165-66. In the Whitley case, the court noted:

“Generally, probable cause sufficient to justify an arrest exists where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed.”

The prosecutor with the State Attorney’s Office may satisfy its burden to prove the lawfulness of a DUI arrest by a preponderance of the evidence by simply submitting the arresting officer’s written report. Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So. 2d 371, 372-73 (Fla. 5th DCA 1995).

The court noted:

“By statute, [determination of whether a preponderance of the evidence supports probable cause for an arrest] may be made based on the written documents and reports generated by law enforcement.”); Dep’t of Highway Safety & Motor Vehicles v. Stewart, 625 So. 2d 123, 124 (Fla. 5th DCA 1993).

Once the state has established its prima facie case, the burden then shifts to the licensee to rebut the state’s case. Id. at 124. In order to have actual physical control of a vehicle, the driver “must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he is actually operating the vehicle at the time.” Florida Std. Jury Instr. 28.1 (Criminal).

“Capability” means practical ability. State v. Fitzgerald, 63 So. 3d 75, 77 (Fla. 2d DCA 2011). “Actual physical control” is evaluated by a totality of the circumstances, including such things as:

  • actual or constructive possession of the key to the vehicle or proof that it could be operated without the key;
  • the presence of the defendant in the driver’s seat, and
  • proof that the vehicle was operable to some extent.

Id. at 77-78; Jones v. State, 510 So. 2d 1147, 1148 (Fla. 1st DCA 1987); 11 Fla. Prac., DUI Handbook sec. 1:3 (2015-2016 ed.).

In Morgan v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 96g (Fla. 9th Jud. Cir. October 3, 2012), the court held that the circumstances and inferences drawn from the facts that:

  • Morgan was the registered driver of the vehicle involved in the accident; and
  • that no evidence was presented to show that Morgan was a passenger, not the driver, supported the hearing officer’s decision to affirm Morgan’s license suspension.

In Nguyen v. Dep’t of Highway Safety and Motor Vehicles Division of Driver Licenses, 23 Fla. L. Weekly Supp. 994a (Fla. 14th Jud. Cir. Ct. March 11, 2016), the defense argued that law enforcement did not have probable cause to believe that he had been driving or in actual physical control of the vehicle.

The hearing officer’s factual findings were gleaned from the charging affidavit and crash report narratives. The officer in Nguyen made contact with the owner of the vehicle and identified him by his Florida driver’s license. Id.

The court in Nguyen opined that the affidavit and crash report included sufficient information about the scene and the vehicle from which the hearing officer could infer that the law enforcement officer had probable cause to arrest Mr. Nguyen.

In Nguyen, the court found that “the facts and circumstances, as analyzed from the officer’s special training and practical experience, and of which he has reasonably trustworthy information, are sufficient in themselves” for a reasonable person to conclude that the defendant was the driver of the vehicle. Id. (quoting Dep’t of Highway Safety and Motor Vehicles, 687 So. 2d 30, 33 (Fla. 1st DCA 1997).

The third circumstance is known as the fellow-officer rule. Sawyer v. State, 905 So. 2d 232 (Fla. 2d DCA 2005).

Arrest Outside of the Officer’s Jurisdiction

As a general principle, public officers of a county or municipality have no official power to arrest an offender outside the boundaries of their county or municipality. Mattos v. State, 199 So. 3d 416, 419 (Fla. Dist. Ct. App. 2016).

Law enforcement officials have the same ability to make an arrest as does a private citizen when they are outside their jurisdiction, but do not have superior power of arrest than private citizens. State v. Price, 74 So. 3d 528 (Fla. 2d DCA 2011). When an officer makes an arrest outside of his jurisdiction, the arrest is sometimes called an “extra-jurisdictional police arrest.”

An officer may make an arrest outside of his or her jurisdiction pursuant to the fresh pursuit doctrine. This principle authorizes an officer who observes the commission of a crime, a violation of Chapter 316, Florida Statutes, or a violation of an ordinance inside the officer’s city or county limits to pursue the defendant into another city or county to make the arrest. §§ 901.25 and 901.15(5), Fla. Stat.

Who Qualifies an Officer?

A law enforcement officer is not an “officer” under Florida Statute Section 901.15 unless he is duly authorized to perform his official responsibilities at the site of the arrest. See § 2:24. Effecting arrest — Officer acting outside his jurisdiction, 22 Fla. Prac., Criminal Practice & Procedure § 2:24 (2017 ed.).

The standard applied to an extra-jurisdictional police arrest is the same as that applied to a citizen’s arrest. State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1998)(citing State v. Sobrino, 587 So.2d 1347 (Fla. 3d DCA 1991)). See also, Riehle v. DHSMV, 684 So.2d 823 (Fla. 2d DCA 1996) .

In order to effectuate a citizen’s arrest, a misdemeanor must not only be committed in the presence of the private citizen but there must be an arrest — that is a deprivation of the suspect’s right to leave. Steiner v. State, 690 So. 2d 706 (Fla. 4th DCA 1997).

In McAnnis v. State, 386 So. 2d 1230 (Fla. 3d DCA 1980), the elements of an arrest include “. . .a purpose or intention to effect an arrest under a real or pretended authority. . .” (emphasis added).

Did the Officer Witness the Driver’s Actual Physical Control?

In Sawyer v. State, 905 So.2d 232, 234 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D1466c] and Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D850a], the courts emphasized that officers cannot circumvent the misdemeanor warrant requirement and make arrests for misdemeanor DUI if they never saw the defendants in actual physical control of a vehicle.

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.”

Citizen’s Arrest Exception to the “In Presence” Requirement

As noted earlier, there are exceptions to the requirement that the offense of DUI occurred in the officer’s presence to be a valid arrest. One exception is the citizen’s arrest exception. This exception allows a citizen to arrest an individual when a citizen observes a felony or a misdemeanor breach of the peace in their presence.

Driving Under the Influence has been found to be a breach of the peace sufficient to allow a citizen to make an arrest. Id. In order to effect a citizen’s arrest, four criteria must be established:

  • A purpose or intention to effect an arrest under a real or pretended authority;
  • An actual or constructive seizure or detention of the person to be arrested by a person having the present power to control the person arrested;
  • A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there is to effect an arrest; and
  • An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

McAnnis v. State, 386 So. 2d 1230, 1232 (Fla. 3rd DCA 1980). These criteria apply equally to a law enforcement officer as well as a citizen making an arrest.

This article is last updated on Tuesday, May 11, 2021.