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CAN YOU DODGE A DUI IF THE POLICE DON’T ACTUALLY WITNESS YOU DRIVING?

 

After an afternoon barbeque party, Dave gets in his car and heads home.  As he turns the corner on his street, he hits the side of a car parked on the corner. Dave had more than a few beers at the party and he figures that if he sticks around, he stands a good chance of getting a DUI. So, Dave quickly backs up, and speeds down the street to his home where he parks his car in the driveway and runs inside. His neighbor Millicent heard the collision and peeked through her front window. She saw Dave backing up and thought she recognized him (and his car) as a neighbor down the street. When she sees the damage to the parked car, she calls the police and reports the incident. She tells the dispatcher that she believes the driver of the car was a neighbor who lives down her street and she describes the neighbor’s car.

The police arrive and spot the car described by the neighbor parked in Dave’s driveway. They feel the hood of the parked car and find that it is still warm. They see front-end damage consistent with the damage they noted on the car parked down the street. The officers knock on Dave’s front door and Dave’s wife, Susan, answers. By this time, Dave was upstairs vigorously rinsing his mouth out with mouthwash. On his way upstairs, he had briefed his wife on what happened and told her, “If the police come, don’t tell them I am here.”

The police ask Dave’s wife whose car is parked in the driveway. She tells them it belongs to her and her husband and in an effort to protect her husband, she tells them she just brought it home from grocery shopping. When questioned, she tells them the damage they observed on the front end is from a previous fender bender. Based on Millicent’s report, the police don’t buy Susan’s story. They ask if her husband is home. She tells them he is not. The police remain suspicious. As the police question Susan, the police hear footsteps upstairs.

The police have reasonable suspicion, based on Millicent’s report, that Dave caused the accident and is evading the police investigation. Meanwhile, Dave is upstairs thinking: “Better to delay this at least long enough for the alcohol to dissipate.”

Based on their suspicions, the police ask Susan if they can search the house. Susan tells them they cannot. The police then inform Susan that are going to search the house despite her refusal and despite the fact that they do not have a valid search warrant. The officers find Dave upstairs, he displays the usual symptoms of alcohol intoxication. The police arrest him for suspicion of hit and run DUI accident.  Later at the police station, Dave is tested for DUI; the result is .09% BAC. Dave might be in big trouble. The D.A. charges him not only with DUI but with leaving the scene of an accident, evading arrest, and DUI test refusal.

There are two crucial issues to Dave’s defense:

1) Was the search of the house legal?  Dave’s defense attorney can file a motion to suppress the evidence found in the search, more specifically, Dave’s BAC results. If the court determines that the search was unlawful, the BAC evidence cannot be admitted.

2)  Can the police charge Dave for hit and run or hit and run while under the influence if they didn’t see him driving at all? Assuming Dave does not have multiple DUI convictions within the past 10 years, these offenses are misdemeanors. Generally, in California, the police cannot arrest a person for a misdemeanor unless the misdemeanor crime was witnessed by the arresting officer.

Stay tuned for next week’s blog entry to find out Dave’s chances. And as an added bonus: Is Susan in trouble too?

A skilled criminal defense attorney knows the California Penal Code inside and out. That is why it is always a good idea to hire an attorney whose practice is limited to criminal law. Orange County criminal defense attorney William Weinberg has been practicing criminal defense for 25 years. He limits his practice to defending those accused of misdemeanors and felonies in California. He is available for a complimentary and confidential consultation regarding your criminal matter. You may reach him at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com