In the last of my three-part series about Dave’s misadventuresafter an afternoon of beer and barbeque at a friend’s, we come to another possible defense Dave may have following his arrest for DUI and a hit and run. To summarize: Dave ran into his neighbor’s car on his way home from the barbeque and fearing that he stood a chance of getting arrested for DUI if he stopped and reported the mishap, he made the decision to go straight home and hope for the best. Perhaps he planned to go tell his neighbor after he sobered up a bit, but it was too late; another neighbor, Millicent, saw the accident and reported it to the police. When the police arrived at Dave’s house, Dave decided to “hide” upstairs and his wife covered for him. The police, suspecting Dave was in the house and that he had been drinking, conducted an unwarranted search of the house after Dave’s wife refused to consent to the search.
In my previous blog, I discussed Dave’s potential defense based on the unlawful search of his house. Even though this presents a strong defense argument, the judge still might not grant Dave’s motion to suppress the search.
Dave has another potential defense: the police never witnessed him driving; they are basing their arrest for DUI on Millicent’s report that she saw him driving. Let’s start with the Penal Code. Section 836 of the Penal Code does not permit an officer to make a warrantless arrest for a misdemeanor unless the misdemeanor took place in the officer’s presence. Dave’s DUI, his first,was a misdemeanor. Does that mean that the officers’ arrest was unlawful under Penal Code Section 836? Well, not always.