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.

The Vehicle Code permits the police to make a warrantless DUI arrest following a traffic accident. (Vehicle Code §40300.5.) In most cases, this applies to a situation where there is a traffic accident to which the police respond and even though a driver is no longer driving, and probably not even in his or her car, the police can arrest the driver for DUI if the officer has reasonable cause to believe the driver is under the influence. But that is not exactly what happened here.  However, the courts have allowed reliable eyewitness testimony as evidence of driving in a DUI conviction.

When the police arrived at Dave’s house, they felt the hood of the car in the driveway and it was warm. They also observed damage to the car that was consistent with the damage on the neighbor’s car that Millicent told the police Dave hit. Could Millicent have been mistaken about who was behind the wheel when she observed the accident? Of course, but the evidence isn’t looking too good, especially considering Dave’s attempt to evade the police. Taken as a whole, the evidence might provide a trier of fact (judge or jury) to infer that Dave was driving his car under the influence. California appellate decisions have upheld DUI convictions based on this type of circumstantial evidence.

However, Dave doesn’t have to go to trial. The proof that the prosecution would have to present at trial and the fact that the evidence is not direct evidence may offer an opportunity to negotiate a very favorable plea agreement for Dave. In this case, Dave would be wise to seek out a DUI defense attorney who will present the prosecutor’s burden in a way that encourages the prosecution to agree to reducing, or dismissing, some or all of the charges.

Orange County DUI defense attorney has been fighting for his client’s rights for 25 years. He is available for a free consultation regarding your DUI matter at his Irvine office. You may call him at 949-474-8008 or send him an email at bill@williamweinberg.com.

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