CVC 40300.5 – Arrest without a warrant In DUI Cases

January 2, 2017

CVC 40300.5 In this article DUI Defense Lawyer discusses CVC 40300.5 – Arrest without a warrant In DUI Cases. Click on the links below to go directly to your topic of interest.

CVC 40300.5 In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested.

What is CVC 40300.5?

Under California law, there are 4 ways a police officer can place a person under arrest.  These ways are found in Penal Code section 836 and Vehicle Code section 40300.5.   Under PC 836, the 3 reasons are:

  1. The officer sees a person commit a misdemeanor in his presence;
  2. The person has committed a felony;
  3. Polie has probable cause to believe that a person committed a felony even if there was no felony committed.  (By the way, this is the reason all domestic violence arrests are felonies – usually, they do not occur in police presence and most are filed as misdemeanors; however, almost all are felony arrest – which is a way to comply with PC 836).

Most DUI arrests (because there are no collisions) have to be witnessed by police.   If the police see you drive poorly, they can stop and arrest you under California Penal Code section 836.  But in addition, to warrantless arrests pursuant to section 836 of the Penal Code, a police officer can arrest a person without a warrant based CVC 40300.5 when the police officer has a reasonable cause to believe that the person had committed a DUI when one of the following occurs:

  1. The person is involved in a traffic accident;
  2. The person is in or about a vehicle that is blocking a road;
  3. The person can not be detained unless taken into custody right away;
  4. When the person might bring about an injury to him or herself or damage property unless taken into custody right away;
  5. When the person might destroy or hide evidence of the crime unless taken into custody right away

So, when the California legislature passed CVC 40300.5 they creating an exception to the warrant requirement. Without this code section, a police officer can not arrest a person without a warrant unless he observes a misdemeanor. With this law, California police officers are permitted to place a person under arrest pursuant to CVC 40300.5 even though the officer did not see the misdemeanor being perpetrated in his or her presence.

This is a bid deal and a major change in the previous law that required police to see the crime taking place to make an arrest for a misdemeanor. The common-law rule was regarded as so significant that it was taken into account when the U.S. Constitution was written.  Now,  “officer’s presence” is not required for DUI arrest – surely due to the influence of political interest groups like Mothers Against Drunk Driving (MADD).

How Does It Work?

CVC 40300.5 permits the police officers to take an individual into custody when they suspect he or she has committed a DUI and the officer did not observe the crime as long one of the requirements are met. This law creates an exception to the arrest requirement that a person can be arrested only when there is an arrest warrant or a probable cause as observed by the officer. DUI cases frequently involved misdemeanor charges, unless the DUI involves an injury or the accused has a is a bad record with multiple priors or a previous felony DUI.  For police officers to take somebody into custody for a misdemeanor, specific requirements have been created that defend individuals from false arrests.  These laws, as well as the U.S. Constitution’s Fourth Amendment, require that an arrest cannot take place unless the officer doing the arrest either have probable cause that a crime happened or needs to get an arrest warrant signed by a judge or a magistrate.

The 4th amendment was drafted to safeguard individuals from wrongful arrests by police or other government agents.  Before, police officers needed an arrest warrant or a probable cause based on “articulable facts” that a felony was committed to place a person under arrest.  This criterion that the police see the offense committed to arrest a person has been changed by California DUI cases by CVC 40300.5.   The police can justify an arrest by saying that unless he arrested you – the evidence of a crime will disappear.

Los Angeles DUI Attorney

Los Angles DUI Attorney is here to help you fight your case.  Our goal is to get the best possible deal for our clients or get a dismissal of all charges.  We accept all forms of payment and will take your call even in the middle of the night.  Please do not hesitate to call us and we will be there to help you.

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