There is a difference in Florida between felonies and misdemeanors when it comes to a police officer’s right to arrest a suspect without having actually observed the crime take place. There are some exceptions, but the general rule is that a police officer cannot arrest a person for committing a misdemeanor crime unless it was committed in a police officer’s presence. In most DUI cases, the police officer observes the defendant driving in a manner that indicates the driver is impaired, the police officer makes a traffic stop and then initiates a DUI investigation. In those cases, the DUI crime is clearly committed in the police officer’s presence. However, if a police officer does not observe the DUI crime and a police officer does not observe the suspect driving or in actual physical control of the vehicle, the police officer cannot arrest the suspect for DUI. (This does not apply to accident cases.)
In a recent case near Jacksonville, Florida, the defendant parked a car outside of a residence and a witness saw the defendant get out of the car and stagger around until she got back into her car. The defendant started to drive away and nearly hit a parked car. The witness convinced the defendant to stop the car and took the keys. The witness then called police and told them he thought the defendant was drunk. When the police officer arrived, he saw the defendant sitting on the curb and the witness had her keys. The police officer got a statement from the witness about the defendant’s driving and actions, investigated the defendant for DUI, administered field sobriety tests to the defendant and arrested her. She blew over the legal limit on the breathalyzer test.
The criminal defense lawyer filed a motion to suppress the evidence obtained by the police officer after the DUI arrest because a police officer cannot normally arrest a person for a misdemeanor without observing the crime being committed. The court agreed, and the DUI case was ultimately thrown out. While there was a witness who did see the defendant apparently commit a DUI offense, the police officer did not see it. When the police officer arrived, the defendant was outside the car and did not have the keys. Driving the vehicle or being in actual physical control of the vehicle is an element of a DUI offense. Since no police officer ever witnessed the driver satisfy this element, the police officer was not authorized to arrest the defendant for DUI.