Was There Probable Cause For Your Arrest? Were You Actually Arrested?


Interviewer: What other issues do you raise at the administrative hearing regarding your driver’s license?

Steve: If the officer properly completes this DS-367, it has all the information needed. It has everything for a hearing officer to determine if there was probable cause for the officer to believe the person was operating a motor vehicle under the influence of alcohol.

You know, you can train a monkey to complete those forms. You can also train a monkey to use those forms in a hearing and suspension. There is nothing to do. There is no analysis needed, or anything. You just go ahead and mark the document as an entry exhibit. You introduce the exhibit, and there you have it.

The related issue is the stop. It is part in parcel of the probable cause, and then there is the probable cause issue. Did the officer have probable cause to place that person under arrest, and how do you do that?

Essentially, you have the time the officer observed the person driving. They write the time down on the form. They then contact the person, and all they do is check boxes. 99.999% of the time, no one else will have contact with the person. So the officer checks odor of alcohol.

That is a check mark. Guess what else he checks? He checks slurred speech. Then he also checks bloodshot, watery eyes and unsteady gait. Well, there you go. That is all they need for probable cause.

So if the person was lawfully stopped and the officer simply checks those boxes, there you have it. Then the trained monkey just says, “Everything has been checked on the form. The form looks good. There is probable cause.”

So what is so hard about that? Anytime an officer is involved in a DUI arrest, 99.999% of the time there is going to be an odor of alcohol, bloodshot watery eyes, slurred speech and unsteady gait.

Bingo, those are the magic words for probable cause to arrest a person for DUI. That is why that particular issue is hard. It is a harder issue than the stop; admittedly so.

Then, the second issue is: Did the officer then lawfully place that person under arrest? Now, there is a reason for the second issue: Even though officers would like to, they cannot run around with breath tests and put them in people’s mouths. If they are driving, they cannot do that.

The law basically says the only way you can stick a breath test machine in someone’s mouth is if it was incidental to a lawful arrest. Whoever created these forms and the hearing did so because that is what the law requires. If there was probable cause for the arrest, then that person can be arrested. They need to be arrested actually for DUI.

That brings me to a whole topic involved in these hearings. I litigated a particular issue and nobody quite understood what I was trying to suggest. However, I am going to explain it as simply as I can.

The person really has to be arrested in order for them to blow. In order for the officer to stick the breath test in someone’s mouth, that person needs to be arrested. That is the second issue: Was the person lawfully arrested?

For example, I had a case that actually applies. In Santa Rosa, to save some money, the police did not want to haul people to jail so much. Instead, they brought a mobile chemical test to the scene; had them blow into the device; and then let them go at the scene.

There was a woman who I represented. There was really no indication at all that she was ever really arrested. It was a fascinating case. It was Christmas Day. She was a nurse, and I think it was a 0.14 or 0.15 test result.

She was never in trouble before. In fact, her father was an attorney. She comes from a very good family. She was never pulled over for a speeding or parking ticket in her life. These officers knew that and they were actually pretty good with her.

However, there was no indication she was ever arrested. So I argued that. I said, “No, she was never arrested, ever. Because she was never arrested, the chemical test should not be used. The chemical test can only be given to someone after they have been arrested.”

Once again, she was never arrested. So it was a great issue. It did not go anywhere because, true to form, they found she was detained but she was not officially arrested.

I also just had a case where the client was unfamiliar with the highway system. He was driving a woman he met that evening to her home. He was not from the area. The woman was talking to him, telling him where to go. She was actually from Ireland; not even really familiar with the area herself.

The client was looking at the navigation on his phone. Meanwhile, apparently he weaved a bit and got pulled over. He was directed to do some field sobriety tests. However, the officer was not really administering them correctly.

Then they brought out the portable breath test. He was asked, “Would you blow?” He said, “No, I prefer not to blow.” The officer said, “Because you did not blow, I need to arrest you now.” That is what he did. He arrested him.

I argued he was not lawfully arrested because the law says you do not have to blow. If the law says you do not have to blow but you are arrested because you do not blow, I argue illegal arrest. So with regard to the second issue of lawful arrest, I said he was not lawfully arrested.

By Steven Taxman

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