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Warrantless DUI Arrest

A DUI is a misdemeanor offense under Florida law. For a misdemeanor, a law enforcement officer may only make a warrantless arrest if the officer actually witnessed the commission of the offense. See Section 901.15, Florida Statutes.

Some types of DUI cases constitute an exception to the “in presence” requirement for a warrantless arrest. For instance, 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.”

Therefore, 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.


Examples of Warrantless DUI Arrests

In State v. Hemmerly, 723 So. 2d 324, 325 (Fla. 5th DCA 1999), the court found that a police officer is authorized to arrest when based on his or her personal investigation at the scene of a traffic crash, the officer has reasonable and probable grounds to believe that a driver has committed the misdemeanor crime of DUI.

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.

In Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1165-66 (Fla. 5th DCA 2003), the court reasoned that:

“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 offence has been committed.”

Contesting the Lawfulness of the Arrest During the Formal Review Hearing

During a DHSMV administrative hearings, the state 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, as was done in the instant case.

In Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So. 2d 371, 372-73 (Fla. 5th DCA 1995), the court found that “[b]y 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.”

In Morgan v. Dep’t of Highway Safety and Motor Vehicles, 20 Fla. L. Weekly Supp. 96g (Fla. 9th Cir. Ct. 2012), the court held that competent substantial evidence supported the hearing officer’s determination that the arresting trooper had probable cause to believe the petitioner was in actual physical control of a vehicle because:

  • the witness to the crash described the petitioner as the driver of the SUV involved in the crash and reported that the petitioner had been taken to the hospital;
  • the SUV was registered to the petitioner;
  • the trooper found the petitioner at the hospital with injuries; and
  • no other evidence showed that the petitioner was a passenger rather than the driver of the SUV.

In White v. Dep’t of Highway Safety and Motor Vehicles, 20 Fla. L. Weekly Supp. 469a (Fla. 9th Cir. Ct. 2013), the court held that competent substantial evidence showed that the petitioner was driving the vehicle while under the influence of alcohol when it crashed because:

  • a witness’s statement identifying the petitioner as the driver at time of the crash;
  • the officer’s testimony that there were no other persons involved in the crash;
  • the crashed vehicle was registered and insured under the petitioner’s name;
  • the petitioner staggered and stumbled, had difficulty retrieving documents and answering simple questions, had slurred speech, was unable to stand or walk on own, and had an odor of alcohol.

In Reis v. Dep’t of Highway Safety and Motor Vehicles, 21 Fla. L. Weekly Supp. 382a (Fla. 9th Cir. Ct. 2013), the court held that the hearing officer’s determination that there was probable cause for DUI investigation was supported by evidence that:

  • the crash was caused by driving into a concrete wall;
  • the officers’ observations that the petitioner had an orbital sway, slurred speech, odor of alcohol, and glassy eyes; and
  • the petitioner’s performed poorly on the field sobriety exercises;
  • other indicators of impairment provided probable cause for arrest and request for the breath test.

In Dep’t of Highway Safety and Motor Vehicles v. Silva, 806 So. 2d 551, 554 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D139a], the court found that circumstances surrounding the accident together with the officer’s observations provided ample probable cause for the driver’s DUI arrest.


This article was last updated on Friday, December 19, 2019.

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