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Florida Police Cannot Arrest DUI Suspect Without Observing Him/Her Driving

In Florida, a police officer is not normally permitted to arrest a person for DUI (driving under the influence of alcohol or drugs) unless the police officer observes the suspect actually commit the crime.  This applies to standard DUI’s, not DUI’s involving an accident.  This is not an issue in most DUI cases in Florida as DUI arrests are usually the result of a traffic stop after the police officer claims to observe the driver commit some traffic violation.

However, there are situations where a police officer comes upon a person he/she believes to be impaired, but the driver is no longer operating the vehicle or in actual physical control of the vehicle (usually characterized as being inside the vehicle in the driver’s seat with the keys).  In these cases, the police officer may not be able to make a DUI case even if he/she has reason to believe the suspect was recently driving the vehicle while impaired from alcohol or drugs.

For instance, in a DUI case just south of Jacksonville, Florida, a witness observed the suspect driving erratically and then come to a stop in the roadway.  The witness was in the medical field and decided to stop and see if the driver needed any medical assistance.  The witness got the driver out of the vehicle, obtained her keys and drove the vehicle off to the side of the road.  It became apparent to the witness that the driver was impaired from alcohol.  A police officer arrived when the driver and the keys were already outside of the vehicle.  The police officer arrested the driver for DUI based on his observations that she was drunk and the witness’s statement that she had been driving.

The criminal defense lawyer filed a motion to dismiss the DUI case because the police officer did not have the legal authority to arrest the driver as he did not observe the crime being committed.  Observing the driver after the fact and relying on the statement of the witness was not sufficient under Florida law.

The state argued that there was a valid arrest by the witness who originally dealt with the defendant.  A private citizen is allowed to make a citizen’s arrest under certain circumstances in Florida.  When someone commits a breach of peace is one of those circumstances, and committing a DUI would likely also be considered a breach of peace.  However, in order for a citizen’s arrest to be valid, it must be clear that the citizen’s intent with the suspect is to effect a citizen’s arrest.  In this case, the citizen’s intent was to see if the driver needed medical assistance, not to arrest her.  Therefore, this was not a valid citizen’s arrest either.  The DUI case was dismissed.