Category Archives: DMV

Understanding The Role Of A Tampa Dui Attorney

A Tampa DUI attorney will deal with cases of driving under the influence. DUI is usually related to drink or drugs or both and is considered a very serious offense, despite many people believing it to be simply a minor traffic offense. Hiring an attorney to represent you in DUI cases is advised as they will be able to present a better defense than you could for yourself.

�

The penalties for DUI range from fines to mandatory jail terms and community service orders. You need to hire an attorney who practices within the area and state in which the alleged offence took place and where the case will be heard in court. Therefore if you were charged in the Tampa area then you need to hire a qualified Tampa DUI attorney. It should be noted that whilst most lawyers will take on cases of DUI, only those who specialize in DUI cases will have the expert knowledge required to understand the evidence and the legal implications of DUI charges.

�

The evidence presented in a case of DUI relies upon complex medical and scientific tests being carried. These include field sobriety tests carried out by the police officer present at your arrest, in which they ask you perform a range of tasks to test your motor skills. The most important test tests for blood alcohol levels at the time and involves that taking of a sample or blood, breath or urine. In all states the minimum accepted level for blood alcohol is 0.08%, if you are significantly higher than this then you can expect to receive a far higher penalty.

�

It is the role of your Tampa DUI attorney to disprove or discredit this evidence by offering alternative explanations for the results or to prove that the tests were not correctly carried out, were not performed by qualified personnel or that the correct procedures were not followed at the time. You do have the right to refuse the blood alcohol test, however this could be seen as admission of guilt and could possible incur further civil charges being brought against you later on.

�

Your attorney will do more than build your defense however. They will be able to advise and support you, inform you of the implications of a DUI charge, the penalty you could face and the legal procedures that will be undertaken. They will also liaise with court personnel and prosecutors, negotiate with the DMV on your behalf and file all necessary paperwork on time. In short they will manage every aspect of your case from the moment you hire them.

Sherry Adams is a businesswoman for almost 9 years and because of her profession she met some professional, like IT specialist, doctor and a Tampa DUI Lawyer who assisted her when in comes to legal issues. And when she visit Florida, she met a Tampa DUI Attorney and ask some legal advice when she in trouble driving.

Can I Represent Myself In a DUI Case in Orange County?

If you are arrested for a DUI in Orange County, it is possible that you can represent yourself in court.  However, it is highly advisable that you hire an Orange County DUI lawyer if you are not familiar with DUI laws and procedures in the state of California.    

Many people don’t want to hire a DUI defense lawyer because they think it will cost too much.  However, it can actually end up costing you more if you don’t hire a lawyer.  Your license could be suspended or revoked, you could pay outrageously high fines, and spend more time in jail. 

If this is your first DUI arrest and there were no additional or aggravating circumstances such as reckless driving, DUI with a minor in the car with you, or extremely high blood alcohol content (BAC), you may able to get by without a DUI defense lawyer.  However, if you are a repeat offender, it may be beneficial to hire an Orange County DUI defense lawyer. There are several reasons why you would want to hire a lawyer who specializes in DUI cases: 

A DUI lawyer can analyze your case to check if there are any flaws or inconsistencies. A lawyer can have blood samples independently analyzed. A lawyer can schedule your DMV hearing and make sure all paperwork is filled out correctly. If expert witnesses are needed, a lawyer can arrange for these witnesses to appear in court. A lawyer may have information that you have not considered because of your limited experience with the laws in your state.

 

Regardless if you do or do not hire a DUI lawyer, it’s still good to be educated about California DUI laws and procedures.  However, do seriously consider hiring a lawyer.  Keep in mind that when you are arrested for drunk driving, your future driving privileges and criminal record are in jeopardy.

 

Maria Palma is a freelance writer and internet marketer who specializes in legal, real estate, and business content.

DUI Lawyers in San Diego is a Great Help to Mexico Partygoers

Driving a car in Southern California is a wonderful experience for it encapsulates the American theme of living free and being able to go wherever you want. The roads and highways are long and nice to venture out. And if you want to go and visit another country, Mexico is the place to visit especially during those spring breaks and holidays. The border between Mexico and the United States is long passing through several states but the most popular of its crossings is the one in San Diego.

Mexico is a nice place to party and as a young adult, visiting Tijuana is one of the must do things with friends. The sight and sounds are unique and entertaining and of course nothing would be better than to finish the night off with some shots of tequila. Driving back across the border, you have to be careful that you are sober enough to avoid being asked to take a sobriety test. Often times, young adults are immediately asked to take a sobriety test upon leaving the Mexican border. This is to insure that drivers are sober enough to drive. These days, police vehicles are equipped with video recording devices that record any stop over or pull over. Being in your best attitude and behavior while being stopped will reflect in the video and it may work for you should any case be filed against you.

There are cases when you may be charged for DUI even if you feel that you are within the legal limits. There could be a medical reason for that spike of the blood alcohol level as you may be a type two diabetic or you may have eaten something spicy or hot which affected the result of your breath analyzer test or blood alcohol level test. In such instances, getting a dui lawyer from San Diego is the best alternative.

Hiring a DUI lawyer may be expensive but look at the alternative: a possible conviction, jail time and a permanent record mark which may affect your status especially when looking for a job. DUI lawyers specialize in such cases and may find an amicable solution to your situation without even going to court. They may apply for a special San Diego DMV hearing to look at your case which does not involve any jury or trial but is a review of the facts of the case. A DUI lawyer from San Diego would also know the local nuances and status of the court system in the area and with that knowledge may present to you a plan of action for your case. They have the local expertise and know how to make you escape any conviction, especially if the case against you is weak.

Finally! You can choose the right
DUI Lawyers San Diego
for your case! There are several tips and secrets that you should know about these cases and I’ll show you these and much more information! The key to staying out of jail and keeping your driver’s license is hiring the best San Diego DUI Defense Lawyer!

Neavada Bill Could Stop Online Classes for DUI and Victim’s Impact

Nevada Statute NRS 484.3797 allows DUI schooling or Victim Impact Panels via the internet.  AB 209 would reverse that.

As usual, many lobbyist and politicians hungry for the lime light all jumped on board this one, democrats wanting to appear to be tough on crime and the bleeding hearts telling their tragic stories.

The actuality of the situation is that Nevada DMV has it’s own online course, as does a whole host of other websites.  And, as if the DUI law as written doesn’t deplete the offenders bank account of lots of his/her money, the DUI schools further deplete it.  And, if you took out the DUI school being online, you’d have the added cost of commuting to these schools.  No one asked people who could barely afford their gas now, how they felt about bill AB 209.  

Everyone wants to demonize DUI.  At no point has any science been presented to show that DUI contributes to driving impairment.  In fact, the actual numbers of drivers in accidents and fatalities, shows DUI as one of the lower causes, if you could even say it’s a cause.  The number one cause of accident and death in a vehicle is driver distraction: cell phone; car radio; looking elsewhere.  Now if the leading cause of accident and death is due to driver distraction, does it stand to reason that maybe DUI isn’t even the cause of accident and death in those cases at all?  Let’s take a look at something.  When alcohol is determined to be present at the scene of a car incident, be it accident or anything, the police and lawmakers shift the blame squarely on the alcohol.  ALL further investigation into the cause of the incident ceases immediately.  So all of those thousands of DUI cases, which might have been masking some other cause, have completely and utterly halted any other findings.  Think of all of the car recalls, or driver safety recalls that occur in a year.  Is it possible that maybe we could discover those issues faster, if DUI was not thought to be the end of the investigation?

Let’s go back to driver distraction.  If DUI supresses any and all further investigation into the actual cause of the accident, then isn’t it possible that driver distraction might be the actual cause in a majority of those cases as well?  

However, there is so much money to be made under DUI laws that no one will change it.  No one will go out of their way to investigate it further.

Online schools for dui and victim impact is another cheap source of massive income for the city, state and local business that no bill will defeat it.  Luckily for those that are living barely above water, this bill won’t defeat it.  They won’t have to shell out extra gas money, and possibly starve, on top of all the fees they are paying for this DUI.

Boundless Enterprise presents information for everyday use such as the Nevada DUI Attorney website. http://www.lasvegasnevadadui.com I am a recovering Law School student. Make sure to consult your lawyer for any legal information you ever read or hear about.

California DUI Lawyer and DUI Laws

A DUI in California is a serious matter which can have lasting side effects on your way of life. A DUI which should be taken gravely as one should take all the actions feasible to minimize its effects.


DUI means driving under the influence of alcohol. Getting charged with a DUI offense can restrict your driving life. Your driving license can be suspended, limited or recalled depending on the circumstances of the drunk driving offense. You may also receive really costly fines, probably serve jail time, and most likely be needed to attend drunk driving classes. The penalties rely on the courts and counties that you are charged in California.

There are a lot of drunk driving events each day. Many Californians are killed on the road due to accidents. For that reason, many of California laws are created exactly for drunk driving and law enforcement agencies are actively enforcing them. There are severe laws in place to deal with drivers who drive under the influence of alcohol or drugs and tolerance is low.


There are many DUI convictions annually in California and there are many Californians who end up paying a lot of fines and even have to complete jail terms for that. Many drivers either have their driving license suspended, prohibited by the California Department of Motor Vehicles. Even after the criminal court process and the loss of driving privilege by the DMV there is a criminal conviction that stays on your record which you may make several complications in your life, such as retaining employment, or certain licenses. While many Californians who have DUI convictions on their criminal records eventually get the conviction expunged, this is another process that needs additional costs and time.


Now there can be several reasons for an individual driving under the influence of alcohol. It’s possible a person just forced you to have 2 drinks or somebody suddenly took you to the bar to have a drink. You may also be depressed due to work and had a drink before driving. After you are caught, you will have tough time ahead.


The best option to attenuate the negative effects a DUI conviction can have on your record is to hire a professional California DUI lawyer. A knowledgeable DUI lawyer that’s familiar with the DUI laws of California and the local procedures and process of local courts can assist you in many ways. In the situations where the proof or the facts do not support a DUI conviction, an experienced DUI lawyer can present the parts of the case to the court and properly represent your interest and your innocence, efficiently reducing your charges or in a number of cases getting your case discharged.


In different conditions where the case presented by the District Attorney’s Office is strong a professional California DUI lawyercan test the parts of the case to attenuate the charge, prepare it for trial, or in many cases negotiate a plea deal with the District Attorney that benefits the client.

whatever the proof, facts or strength of the case presented against a drunk driver, a good and experienced California DUI Lawyer can reduce the negative effects a DUI conviction can have on a person by representing them with their best interest in mind.


If you’re looking for more information about California DUI Laws or would like to talk with a California DUI Lawyer, visit CaliDUI.com, or read more at California DUI Lawyer and DUI Laws.

Morris Cochran is a criminal law resercher that writes on criminal matters and in particular DUI matters in the State of California.

Dui Defense Criminal Attorney

DUI Defense Criminal Attorney

If you’ve been arrested for driving under the influence, Visit here http://houstoncriminal-lawyer.blogspot.com

you need a DUI defense criminal attorney to defend yourself against the charges. You can attempt to represent yourself or work with an attorney who does not specialize in DUI defense, but that is a recipe for disaster. Qualified DUI defense attorneys specialize in handling only DUI cases so they stay involved in the field of DUI law. Other attorneys may only defend DUI cases occasionally and miss out on important information that could be instrumental to your case. Working with a DUI defense criminal attorney is the best way to start your case off on the right foot and your best chance of winning your case in court. If you want to present a solid defense, hiring a DUI defense criminal attorney is the best way to go.

Consulting with a DUI Defense Criminal Attorney

When you consult with your DUI defense criminal attorney, it should be immediately after your arrest while everything is still fresh in your mind. You will need to tell your attorney your side of the story so you can work together to plan your defense. Your attorney will work with you to get this ready for any pre-trial hearings or conferences that occur prior to your actual trial date. If you don’t work with a DUI defense criminal attorney right from the beginning, you’ll lose out on the opportunity to consult with a legal professional when all of the facts from the day of your arrest are still clear. Over time, you may forget important details so it is extremely important that you make the phone call to a DUI defense criminal attorney as soon as possible.

Preparing Your Case with a DUI Defense Criminal Attorney

While you are waiting for your trial, your DUI defense criminal attorney will be gathering information that can be used during the trial proceedings. Your attorney may get your blood samples and have them sent to another lab for independent testing. This can help determine if testing errors occurred or if the testing was valid in the first place. Expert witnesses may also be contacted to appear during your trial. These witnesses can be used to back up or refute testimony depending on the source. Expert witnesses are often used to refute chemical testing results and show why the results were invalid or inaccurate. Your attorney will also help you to prepare yourself for your upcoming trial. If it’s the first time you’ve ever faced criminal charges, you won’t know what to expect, so your DUI defense criminal attorney will outline the process and answer any questions you may have about the upcoming trial.

The DUI Defense Criminal Attorney at DMV Hearings

In most states, your driving privileges will be suspended immediately upon being arrested for driving under the influence. Some states give you the opportunity to appeal the suspension by submitting a written appeal within a very specific time period. Once your appeal is received, you may be assigned a hearing on the matter. Having a DUI defense criminal attorney speak on your behalf at the hearing can help you to get your driving privileges back. Since having no driving privileges means you have no way to get to work or school, this is very important for being able to continue with your normal activities. If you’re not represented by a qualified DUI defense criminal attorney, you risk losing your freedom and the opportunity to live a normal life.

The DUI Defense Criminal Attorney in Criminal Sentencing Proceedings

If for some reason you end up being convicted of a driving under the influence offense, you will need a DUI defense criminal attorney to speak on your behalf prior to sentencing. If you don’t make a plea on your behalf, the courts may not consider all of the circumstances at hand. Your attorney can let the court know of leniency in sentencing should be shown because you are disabled, have a serious illness, need to work to support your family, or need to care for children or elderly relatives. This opportunity to have an attorney speak on your behalf is very important, so you should be sure that you have a DUI defense criminal attorney on your side during your trial.

Successfully defending yourself against a charge of driving under the influence may be one of the most important things you ever do. Give yourself the best chance of winning by hiring a qualified DUI defense criminal attorney to represent you during your administrative and criminal proceedings.Visit here http://houstoncriminal-lawyer.blogspot.com

San Diego California DUI Checkpoints

California DUI checkpoints must follow strict criteria set forth by the California Supreme Court in Ingersoll vs. Palmer. If the police do not follow these constitutional requirements outlined in Ingersoll, the checkpoint is not lawful. That means any evidence gathered during a San Diego California DUI arrest may not be admissible in San Diego Superior Court nor relied upon to suspend one’s driver’s license at a California DMV administrative per se hearing.

The California Supreme Court pointed out 8 factors that minimize the intrusiveness on the individual, while balancing the needs of society to keep drunk drivers off the road.

First, the establishment and location of San Diego California DUI sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This requirement is important to reduce the potential for arbitrary and random enforcement. drivers at San Diego California DUI checkpoints.

San Diego California DUI police must use a neutral mathematical formula, such as every driver, or every third, fifth, or tenth driver to determine who to stop. This requirement takes away the discretion of the individual officer to choose to stop individual drivers without any legitimate basis.

San Diego California DUI police also must give primary consideration to maintaining safety for motorists and officers. In order to minimize the risk of danger to motorists and police, proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are required. The San Diego California Drunk Driving checkpoint should only be operated when the traffic volume allows the operation to be conducted safely.

The locations of San Diego California DUI roadblocks also are regulated. A supervisory officer must choose a location that will be most effective in actually stopping San Diego California drunk drivers, such as roads which have a high incidence of alcohol-related accidents and San Diego California DUI arrests.

The time and duration of San Diego California DUI sobriety checkpoints are of key importance. Police are expected to exercise good judgment in setting times and durations, with an eye to effectiveness of the operation, and with the safety of motorists in mind. As long as these considerations are in effect, there are no hard and fast rules as to the timing or duration of the California Drunk Driving roadblock.

California Drunk Driving sobriety checkpoints also must be established with high visibility so that drivers can easily see the nature of the roadblock. The features that promote high visibility include flashing warning lights, adequate lighting, police vehicles, and the presence of uniformed officers. Not only are such factors important for safety reasons, but advance warning will reassure motorists that the stop is duly authorized.

California Drunk Driving police operating sobriety roadblocks should detain each motorist only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe signs of impairment, the driver may be directed to a separate area for a California Drunk Driving field sobriety test. At that point, further California Drunk Driving investigation must be based on probable cause, and general principles of detention and arrest would apply.

California Drunk Driving police conducting a lawful sobriety checkpoint must provide advance notice of the roadblock to the public, although they are not required to disclose its specific location. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock. The thought is that advance notice limits intrusion upon the individual’s personal dignity and security because those stopped would anticipate and understand what was happening. Further, advance publicity serves to establish the legitimacy of California Drunk Driving roadblocks in the minds of motorists.

The Supreme Court pronounced that motorists who seek to avoid a roadblock may not be stopped and detained merely because they attempted to avoid the California Drunk Driving roadblock. However, if the motorist commits a California vehicle code violation or displays obvious signs of intoxication, there may be adequate probable cause to pull over the motorist.

Although the Supreme Court’s Ingersoll decision legitimized California Drunk Driving checkpoints, it established strict guidelines under which the roadblocks must be operated. If California DUI law enforcement do not follow the factors set out by the California Supreme Court, the evidence gained as a result of the roadblock may be suppressed as a violation of the Fourth Amendment rights of the motorist and may not be the basis to support a finding of a lawful arrest at a California DMV license suspension hearing.

A San Diego California DUI Defense Attorney can determine whether a San Diego DUI sobriety checkpoint was conducted lawfully.

DUI Specialist Rick Mueller is the only San Diego DUI lawyer who was the featured Speaker at 7 DUI seminars in San Diego County in the last several years. Rick Mueller is known as the “DMV Guru”, and has practiced law since 1983.

Have Your Dui Case Evaluated By A Tampa Dui Attorney

If you are charged with DUI then it is in your interests to find the services of a qualified Tampa DUI attorney as soon as possible. Charges of driving under the influence are taken very seriously and carry penalties such as fines and mandatory jail terms. Many people assume that DUI charges are simply minor traffic offences but the fallout from a DUI conviction can have far reaching consequences.

�

By finding an experienced Tampa DUI attorney you will give yourself the best chance of being acquitted or having the severity of the charges reduced, along with the penalty. DUI lawyers have the skill and expertise needed to interpret the complex medical and scientific evidence that is used in these cases, something which most people would struggle to understand. They will also know the state law regarding DUI, the personnel in the courts and the prosecutors and the legal procedures which must be followed.

�

You do have the right to represent yourself, but this is ill advised unless you have expert legal knowledge yourself. The consequences of being convicted of DUI range from increased insurance premiums to losing your livelihood, particularly if you drive for a living. Alongside this you will have your license suspended whether or not you are guilty of the charges and it is up to you to then reapply and prove you are responsible enough to hold drivers license to the DMV.

�

Getting your case evaluated by a Tampa DUI attorney will enable you to learn more about the legal process which will follow, the potential penalty you could be handed and what the future outcome could be. Your attorney will also be able to advise you on how best to plead based upon what you have told them and available evidence. They may advise the entering of a plea bargain whereby pleading guilty could result in a reduced sentence. If you have previous convictions for DUI then your attorney will be able to advise you on how best proceed, particularly because the penalties for subsequent offences become increasingly more severe.

�

Your attorney will not only help to build your defense but will also manage your case for you from the moment you hire them. This includes negotiating with prosecutors and other officials, dealing with the DMV for you, researching any relevant legal precedent set by past cases, obtaining alternative evidence to the results obtained by the prosecution and the filing of all legal paperwork.

�

Try to meet with several different Tampa DUI attorneys before you decide on whom to hire to represent you. Your first meeting is often free of charge and you are no obligation to hire them afterwards. Use this first consultation to find out more about them, how they practice, their fee structure and the experience and qualifications they hold in this area of the law. You should then make your choice based on who you felt was best qualified to represent you and with whom you felt most comfortable with.

Sherry Adams is a businesswoman for almost 9 years and because of her profession she met some professional, like IT specialist, doctor and a Tampa DUI Lawyer who assisted her when in comes to legal issues. And when she visit Florida, she met a Tampa DUI Attorney and ask some legal advice when she in trouble driving.

The Rising Costs of a DUI Conviction

It seems like every year the costs that a person convicted of a driving under the influence (DUI) charge faces continue to rise. Not only is being arrest and convicted of a DUI offense humiliating and embarrassing, but the financial drain that it places on anyone convicted of a DUI offense, whether it is a first offense or third offense is overwhelming to say the least.

The penalties and costs associated with a first offense DUI conviction will vary by state, but you can be assured that just because one state’s DUI costs are less than another state’s DUI costs, they are very similar.

Bail to get out of jail will cost you roughly 10% of the actual bail amount (if you go through a bail bondsmen) or between $250 – $1,000 and more depending on where your bail is set. If there was no passenger who is licensed to drive and was not under the influence in your vehicle at the time of arrest, you vehicle will be towed. Towing costs can range anywhere from $100 – $1,000 or more. Fines for a first offense conviction range from $300 – $1,200. Your state may require first time offenders to attend an alcohol evaluation class at a cost of $150 – $1,000 or more. If you hope to have any chance of beating the DUI charge you are going to have to hire an experienced DUI lawyer. The average cost to defend someone against a first offense charge will average around $3,000 and up depending on the complexity and circumstances surrounding your case. You will have to pay a license reinstatement fee of $90 – $250 to your DMV before they issue you a restricted license or reinstate your license following your suspension period. You may be required to have an ignition interlock device installed on your vehicle as a requirement of having your license reinstatement at an average cost of $800 per year. Your auto insurance premiums are going to increase by 300 to 500% or more per year due to the fact that you will be required to file an SR22 form with your DMV showing proof of financial responsibility. The added cost of SR22 insurance could be $1,500 – $2,800 or more per year on top of what you were previously paying for auto insurance.

 

The increase in auto insurance costs will remain with you for approximately 5 – 7 years beyond the 3-year SR22 filing period required by your DMV because the DUI offense will remain on your driving record for an average of 10-years.

Additional expenses include various additional fees that your state may charge you that could add up to $300 or more. Something that only you could put a price on is your time lost away from work because of jail time, going to court and any court appointed treatment programs.

You may also be faced with having to find new employment following a DUI conviction especially if you were required to drive a company vehicle on the job. More and more employers are conducting background checks on future employees before hiring them and if a prospective employer sees a DUI conviction on your criminal record, they may not offer you the job.

As you can see by the examples above that being arrested for a DUI offense can be an absolute train wreck and potentially ruin a person’s life for many years to come.

If you are facing a DUI charge, it is very important to speak with an experienced DUI lawyer in your area regarding your case and what options you have. It is also important that you learn as much as you can about your state DUI laws and what penalties you may be facing.

Unlawful or Lawful Arrest DMV finding after California DUI?

UNLAWFUL ARREST
Though not expressly stated in VC §§13353(c)(2) or 13557(b)(2)(B), other statutes and case authority establish that what is actually required in a DMV administrative per se hearing as a result of a California DUI arrest is proof that the person was “lawfully” arrested. (See, VC §23612(a); Mercer v. DMV (1991) 53 C3d 753, 280 CR 745; Gikas v. Zolin (1993) 6 C4th 841, 25 CR2d 500; and Lake v. Reed (1997) 16 C4th 448, 65 CR2d 860.)                            

A. What Constitutes an Arrest?
An officer’s use of “magic words” is not the sole basis for determining whether an arrest has occurred—the trier of fact must look to the essential elements of custody, Ormonde v. DMV (1981) 117 CA3d 889, 173 CR 79, and distinguish between a temporary detention and a formal arrest. (See People v. Freund (1975) 48 CA3d 49, 119 CR 762 – defendants arrested when they were placed in the back of a patrol car while police obtained a search warrant, even though officer said arrest took place after the search).
Where an arrest does take place, the timing of it is determined by looking to the essential elements of taking the arrestee into custody and actual restraint or submission to custody.  (See, People v. Parker (1978) 85 CA3d 439, 443 and Green v. DMV (1977) 68 CA3d 536.)

B.  Penal Code §836
Application of PC §836 to drunk driving cases nearly always involves a question of whether or not the defendant’s activities witnessed by the arresting officer (or other appropriate person) amounted to the act of “driving” as it is defined for these purposes.                   
As for what acts constitute “driving,” the California Supreme Court cleared up a lot of confusion with the decision in Mercer v. DMV (1991) 53 C3d 753, 280 CR 745, holding that proof of “driving,” in the presence of the arresting officer, requires proof that the arresting officer witnessed volitional movement of the vehicle by the defendant.  Thus, the Supreme Court held that if the vehicle isn’t observed moving, i.e., rolling, then it isn’t being driven.  Sister state statutes generally prohibit “driving” or “operating” a motor vehicle while under the influence of alcohol, and some prohibit both (e.g., Florida).  In order to operate a motor vehicle one does not have to actually move the car.  California, however,  has a “driving” only statute, and as Mercer points out, this requires actual movement of the vehicle.                                                                                                                      
C.  Circumstantial Evidence of Driving—Arrest Illegal
Arrest Illegal: The continuing validity of several presence-by-circumstantial-evidence decisions is in doubt in light of the Supreme Court’s decision in Mercer, wherein the court said:

Because Penal Code section 836, subdivision 1, provides that a warrantless misdemeanor arrest is permissible only if a public offense occurs in the arresting officer’s “presence,” and because the officer in this case did not see Mercer’s vehicle move, we conclude Mercer was not “lawfully arrested” for a violation of section 23152(a) and thus cannot be subjected to the license revocation provisions of sections 23157 and 13353 as presently written.

In Mercer v. DMV (1991) 53 C3d 753, 280 CR 745, the court said:

We emphasize at the outset the narrow scope of our inquiry and holding. We do not hold that observed movement of a vehicle is necessary to support a conviction for “drunk driving” under §23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle. [Citation.] Nothing in this opinion calls in question the holdings of these cases.

Presumably, this situation (no presence at offense but charges filed anyway) might come about where no one was present for the offense and the respondent was arrested later on a warrant.                                                   

D.  Cops and Private Citizens
Freeman v. DMV (1969) 70 C2d 235, 74 CR 259, also made it clear that a misdemeanor arrest is legal under PC. §836, so long as the offense occurred in the presence of someone, even a private citizen, and so long as that person either makes a citizen’s arrest, or tries to, or detains the offender until police arrive.  The private citizen has to do more than just call the police and hang around to tell them what happened.  The Freeman Court said, at page 238:

In People v. Sjosten, 262 CA2d 539, 68 CR 832 (Cal. App. 1st Dist. 1968), rev. den., a citizen observed the defendant prowling in the night time and called the police, who thereupon arrested the defendant. After holding that the citizen had the right to make an arrest under §837, subdivision 1, of the Penal Code, [footnote quoting language of section] the Court held that the arrest made by the officer was valid, stating at page 544:

As to the delegation of her authority to another person, §839 of the Penal Code provides: “Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.” This statute impliedly authorizes the delegation of the physical act of taking an offender into custody.

In People v. Harris, (1967) 256 CA2d 455, 63 CR 849, a citizen, who had observed the defendant commit a misdemeanor “hit-run” violation, pursued the defendant and detained him while another person went for the police.  After the defendant was delivered to a police officer, the latter informed him that he was under arrest for the “hit-run” violation.  In discussing the effect of the police officer’s assuming custody of the defendant after his detention by the citizen, the Court of Appeal stated: “An arrest is more than a transient momentary incident.  It continues through a transfer of custody of the accused from a citizen to a peace officer.” (Harris, at p. 459-460.)                                      
Similarly, the arrest made by CHP officer __________ in this case was a “transient momentary incident,” which, evidently, had its beginning in the action taken by the officer when he received some dispatch call regarding a certain driver.  In other words, the initial detention and subsequent arrest by officer ___________ was based upon nothing other than some dispatch call to the officer.  

Likewise, in People v. Walker, 203 CA2d 552, 21 CR 692, the arresting officer gave the defendant some sobriety tests and concluded he was under the influence of alcohol.  The officer had not seen the defendant commit the alleged offense of drunk driving, and the arrest was therefore determined to be unlawful.  Other persons at the scene told the officer that the defendant’s car had been weaving from one side of the road to the other before it collided with a parked car and came to a stop; but it does not appear that anyone had sought to make a citizen’s arrest or detain the offender until the police arrived or, as occurred in the present case, that another officer had witnessed the offender’s actions and “stopped” him.  In direct response to the holding in  Freeman, police frequently have the citizen request the arrest, and do so in writing.

In Padilla v. Meese (1986) 184 CA3d 1022, 229 CR 310, an implied consent hearing case, an agricultural inspection station attendant made a legal citizen’s arrest for drunk driving in his presence.  The police officer merely took the defendant into custody for him.
In Johanson v. DMV (1995) 36 CA4th 1209, 43 CR2d 42, a citizen’s drunk driving arrest was found legal even though the citizen hadn’t explicitly stated that the arrest was for drunk driving.  In People v. Campbell (1972) 27 CA3d 849, 104 CR 118, the Court said:
A private person may arrest another for “a public offense committed or attempted in his presence” (Pen. C. §837). The term “public offense” includes misdemeanors (Pen. C. §§15 and 17; Burks v. U.S., 287 F.2d 117; People v. Sjosten , 262 Cal.App.2d 539, 543, 68 Cal.Rptr. 832) and the person making the arrest may summon others to aid him in the arrest (Pen. C. §839). Although there was evidence that Greenwood himself took defendant into custody, Greenwood also had the right to delegate “the physical act of taking an offender into custody” to the other persons summoned, Officer Johnson and Mr. Frazier (People v. Sjosten, supra, p. 544; People v. Wolfgang, (1923) 192 Cal. 754, 221 P. 907). Nor under the circumstances of immediate pursuit was Greenwood required to tell defendant that he was under arrest (Pen. C. §841; People v. Harris, 256 Cal.App.2d 455, 459, 63 Cal.Rptr. 849 (Cal. App. 1st Dist. 1967)). We conclude that defendant was legally arrested by Greenwood with the aid of Officers Johnson and Frazier.

E.  Admission of Driving Doesn’t Create Presence                                     
Although there is no admission here, the defendant’s admission of driving is no more relevant to whether or not the offense was committed in the presence of the arresting officer than was his alleged “subjective failure” of the field sobriety tests.  Hence, the “driving in the presence” requirement cannot have been accomplished here as is specifically and statutorily required by PC §836.  Conversely, however, is the fact that a respondent’s admission can establish the fact that an accident occurred, which constitutes a statutory  exception to the presence requirement (See, Corrigan v. Zolin (1996) 47 CA4th 230, 54 CR2d 634 and VC §40300.5(a)).

F.  No Vehicle Code Exception To Officer’s Presence Is Applicable
The only exceptions to the “presence” requirement under PC §836 for a DUI arrest are found in VC §40300.5, of which none are applicable to the case at bar.  VC §40300.5 states as follows:

40300.5.  In addition to the authority to make an arrest without a
warrant pursuant to paragraph (1) of subdivision (a) of Section 836
of the Penal Code, a peace officer may, without a warrant, arrest a
person when the officer has reasonable cause to believe that the
person had 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 exists:

(a) The person is involved in a traffic accident.
(b) The person is observed in or about a vehicle that is obstructing a 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.

Thus, for example, where a peace officer (having probable cause) could arrest a person for misdemeanor driving under the influence of alcohol or drugs not committed in the officer’s presence where evidence could be destroyed unless the person was immediately arrested, VC §40300.5(e) created an exception to the presence requirement of PC §836, because evidence could be destroyed by the simple passage of time unless the person was immediately arrested. However, this did not authorize a peace officer to forcibly enter a residence to effect such an arrest.  [See, People v. Schofield (2001) 90 CA4th 968, 109 CR2d 429.]

DUI Specialist Rick Mueller is the only San Diego DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several years. Rick Mueller is known as the “DMV Guru”.

1 2 3 5