The Consequences of Making an Arrest for Driving Under the Influence (DUI) When Probable Cause Does Not Exist

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Each weekend in Fresno County, countless drivers are stopped by members of the Fresno Police Department, California Highway Patrol, and other local law enforcement agencies. Many, if not all, detentions that are made to determine if a driver is under the influence of alcohol (DUI) are based on a very minor traffic violation that the officer relies on in order to make contact with the driver of the vehicle. Common grounds for stopping a motorist on suspicion of driving under the influence (DUI) in the evening include failing to have a front license plate, failing to signal while making a lane change, and failing to have an operational light above the rear license plate. These minor traffic violations coincidentally occur near local restaurants and other establishments in the evening. Other detentions occur at checkpoints that the Fresno Police Department operates throughout the city. The checkpoints that are set up to deter motorists who are driving under the influence (DUI) are typically located near the same intersections.

When an officer initiates a traffic stop in the evening near a local restaurant or establishment their main concern is whether the driver of the automobile is under the influence of alcohol or drugs. The traffic violation is simply used as a mechanism to make contact with the driver of the automobile. According to the United States Supreme Court in Whren v. United States (1996) 517 U.S. 806, 813, the subjective intent of law enforcement is irrelevant in determining whether that officer’s actions violate the Fourth Amendment. If the officer has reasonable suspicion to make a traffic stop, then the stop, in most instances, will be lawful.

After making the traffic stop the officer will make contact with the driver of the automobile. If the officer suspects that the driver is under the influence the officer will order the driver out of the vehicle and subject the individual to field sobriety tests. The officer will ask the driver whether they have consumed any alcohol, how much alcohol, and when the alcohol was last consumed. While these questions are incriminating, the courts have found that this type of questioning, in the context of driving under the influence, does not violate an individual’s right to remain silent (Miranda).

Once the officer has detected the odor of alcohol, they will almost always claim to have observed that the driver has an unsteady gait, slurred speech, and red watery bloodshot eyes. Interestingly, almost every individual arrested for driving under the influence displays the same symptoms. The officer will next have the individual perform field sobriety tests. Most officers do not understand how to properly perform field sobriety tests and will simply make an arrest if they smell the odor of alcohol. They will also insist that the driver submit to a preliminary alcohol screening test. An individual who is over the age of 21 years old and not on probation for driving under the influence is under no obligation to submit to a preliminary alcohol screening test. The officer is required to inform the motorist of this fact. Whether the motorist submits to the preliminary alcohol screening test or not, the officer will, in most instances, place the driver under arrest on suspicion of driving under the influence.

The officer will claim that they had probable cause to arrest the individual. Probable cause to arrest is said to exist where the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain a strong suspicion that the person arrested is guilty of a crime. (People v. Price (1991) 1 Cal.4th 324.) The arrested individual will then be required to submit to an evidential breath test or a blood test. The driver has the option of which test they will submit to. If the driver refuses to submit to a chemical test, the arresting agency may perform a forced blood draw and the Department of Motor Vehicles may suspend his or her license for a year.

After the driver is arrested for driving under the influence they will have 10-days to request an administrative per se hearing. In the interim, the Department of Motor Vehicles will place a stay on the suspension of the individual’s license. The motorist will have also received a citation with a court date. In Fresno County the court date is usually set three months from the time of arrest.

The question often arises as to what happens when an officer arrests an individual on suspicion of driving under the influence and the results of the chemical test are below .08%? This situation occurs far more frequently than some may believe. Very recently an individual was arrested by a local law enforcement agency on suspicion of driving under the influence. The detention occurred at a checkpoint operated by the Fresno Police Department. According to the arresting officer the individual displayed slurred speech, an unsteady gait, red watery eyes, and a strong odor of alcohol. The individual also had to use their vehicle to balance. Of course, the individual failed all of the field sobriety tests. They were placed under arrest and elected to submit to a blood test.

After the arrest the individual was placed on leave by their employer pending a resolution of the case. Within two weeks of the arrest it was confirmed that the individual’s blood alcohol level was below .04%. In California, an individual with a blood alcohol level below .04% is presumed to not be under the influence. The Department of Motor Vehicles immediately set aside the pending license suspension and reissued the individual their driver’s license. However, the individual is still on suspension until the case is resolved with the court.

Probable cause to arrest exists when the facts known to the officer would lead a person to entertain a strong suspicion that the person arrested is guilty of a crime. The officer who made the arrest of this individual failed to abide by this principle. The officer was either poorly trained or simply engages in the all too common practice of placing anyone under arrest if they smell the odor of alcohol. Interestingly, the officer claimed that the individual who was clearly not under the influence, .04% blood alcohol concentration, needed to use his or her car to balance. Clearly, this officer embellished the facts in order to make an arrest for driving under the influence.

The consequence to the driver who was not violating the law, he was placed in the Fresno County Detention Center, is required to pay fees to have his car removed from the tow yard, is required to pay fees to hire an attorney, and is suspended from their job. The consequence to the officer, none.

Unfortunately this situation occurs all too often in Fresno County. Members of law enforcement are not properly trained to determine whether probable cause exists to place an individual under arrest for driving under the influence (DUI). Until there are consequences to the officers who make these unlawful arrests, the practice will continue.

If you or a loved one has been arrested on suspicion of driving under the influence, you should contact an experienced Fresno Criminal Defense Attorney today.

In Madera County, contact an experienced Madera DUI Attorney.

If you have any questions regarding the services provided at the Law Office of Gregory W. Fox,
or would like to schedule your free initial consultation, please contact us today at (559) 222-5800. Hablamos español.