Published on:

Florida Police Officer Out of Jurisdiction Could Not Make Citizen’s Arrest for DUI

A recent DUI case near Jacksonville, Florida had a couple of interesting issues.  Essentially, a police officer was in his patrol car but out of his jurisdiction.  He came across a person riding his motorcycle who had just crashed.  She went over to assist and ultimately determined that he had been driving while under the influence of alcohol (DUI).  The police officer kept the suspect at the scene until proper backup from the that jurisdiction could arrive.  Once a police officer in that jurisdiction arrived, he took over the DUI investigation and arrested the defendant for DUI.  By the time the second police officer arrived, the defendant was no longer driving or on his motorcycle.

The first issue is that a police officer cannot generally make arrests outside of his jurisdiction.  This first officer was in a different county.  It was nice that he went over to try and assist the defendant, but he was not legally authorized to make an arrest of the defendant for DUI. There are exceptions to this rule, for instance, where a police officer is chasing a suspect who goes into another county, or police officers have agreements in place with agencies in other counties or emergency situations where felonies occurred.  However, none of those applied here.

There is something in Florida law called a citizen’s arrest.  Citizens can arrest other people for felonies and breach of peace.  A police officer outside of his jurisdiction has the same right to effect a citizen’s arrest as a normal citizen does.  A DUI that does not involve a serious injury or death is not a felony, so if this was to be a valid citizen’s arrest, it would have to be considered a breach of peace.  A breach of peace is a generic legal term.  It is like obscenity- you know it when you see it, but it generally is going to require an element of disturbing the peace.  The court determined this was not a breach of peace situation as the defendant was not causing any disturbance to others when the police officer found him.  Certainly, erratic driving that endangers others could be a breach of peace, but this officer did not observe that.  Because there was no right to make a citizen’s arrest and this officer was not in his jurisdiction, the officer had no right to try and keep the defendant at the scene to wait for the second officer.

The other issue was whether the second officer could make a valid arrest for DUI even if the first officer did have a right to detain or arrest the defendant.  A police officer cannot arrest a person for a standard DUI unless he observes the defendant driving or in actual control of the vehicle.  In this case, the proper police officer did not arrive until later, when the suspect was not on his motorcycle.  He never saw the defendant drive or in control of the motorcycle.  Normally, a second police officer can rely on the statements of the initial officer about the suspect driving, but the first officer in this case was considered a regular citizen since he was out of jurisdiction.  Therefore, the second officer could not rely on the first officer’s testimony. The state tried to argue that this involved an accident.  For accidents, a police officer can make an arrest without actually seeing a suspect driving or in control of the vehicle if regular witnesses can provide this testimony.  However, the second police officer never indicated he was investigating any accident, so that exception did not apply. Ultimately, the DUI case was thrown out.