Did the police follow the correct procedures in my case?

One of the requirements to charge you with a DUI is that the police followed the correct procedures to investigate, detain, and arrest you, properly charging you with California Vehicle Code section 23152 subsections (the DUI statutes in California).

Under the separate DMV procedure in your DUI, the DMV must also show that the police officer properly placed you under arrest.  This means that the police must have followed the rules and requirements of the Government Code and the Penal Code for a proper arrest.

Under the exclusionary rule, any evidence improperly obtained must be excluded from use in the case.  That means that the evidence used against you in your DUI case might be thrown out, causing your DUI case to be dismissed.

The police procedure review generally focuses on four areas:

  1. Probable cause for your arrest
  2. Proper search and seizure
  3. Proper testing
  4. Your treatment while in custody.

Probable cause for your arrest

Under the US Federal Constitution, and the California State Constitution, the police must have probable cause to be able to investigate your DUI.

Probable cause is defined as “articulable facts that lead to a reasonable suspicion that a crime is occurring or has occurred.”

Articulable facts mean that the police can point to facts, not a hunch or suspicion.  A reasonable suspicion means that those facts would reasonably lead an average person to believe that they are connected to whatever the crime is that was suspected.

The requirement that there be a crime that has occurred or is in the act of occurring (which is what a DUI normally involves), prevents police from detaining or harassing people with no reason.  The crime and the timing of the crime are also important – the police can’t conduct a “pretext stop”, where the police stop someone and then decide afterward what crimes were occurring.  There must be facts existing that lead to an inescapable conclusion that a crime has occurred or is in the process of being committed.

For a DUI, any “fix it ticket”, like a cracked windshield or equipment violations on the vehicle, generally are not sufficient to arrest under, and would not work by themselves for an arrest.  In the real world, police will approach a vehicle under the good faith belief that they may give a citation for the violation, and then observe objective symptoms of alcohol, such as:

  • Bloodshot, watery eyes;
  • An odor of alcohol on the breath;
  • Coordination problems with obtaining license, registration, and insurance
  • An unsteady gait or the requirement to steady them when the driver gets out of the car;
  • Slurred speech.

Once those symptoms are observed, the police officer has a right to request that the driver does the optional field sobriety tests, and to take a breath or a blood test under California’s Implied Consent law.

Proper search and seizure

Search and seizure law is a complicated subject, with many cases that have been discussed for decades.  However, the police can generally seize anything that is illegal (like alcohol in the car, or drugs or weapons in the car) that is within plain sight.  Police cannot search containers, or locked areas of the car like the glove box or the trunk, without a warrant, or without consent.

Police can open a closed portion of the vehicle, or enter a home, if there is an imminent emergency (like a person locked in the trunk), without a warrant.

Police can also search anything if they obtain a warrant.  The law presumes that the police get a warrant, and only allows searches otherwise in narrow circumstances.

The US Supreme Court has stated that obtaining a breath test, a blood test, or a urine test, in a DUI case is technically a search of the body.  For alcohol DUIs, a breath test, since breath leaves the body naturally, does not require a warrant.  A blood test, however, requires a warrant, and there are procedures to get a warrant for a blood test in a DUI at any hour in Orange County.  If the driver consents, however, a warrant is not required, as there is an agreement to the test.  (Note: If you refuse a breath or blood test, your license could be suspended for one year by the DMV).

Proper testing

California law requires certain procedures to be followed as properly obtained evidence in your DUI case.  There are separate procedures to be followed to make a valid breath test, and separate procedures to be considered a valid blood test.  If those procedures are not followed to the letter of the law, they can be excluded from being used against you. That can cause a dismissal of your DUI case.

Your treatment while in custody

While not always a legal defense in the same case, poor treatment by the police in your DUI case could be relevant.  The Constitution prevents cruel and unusual treatment while in custody, and civil rights laws allow you to sue if your rights have been denied or withheld.

Any efforts to coerce a confession or a blood or breath test using threats of force or violence, or actual force or violence that is not necessary or is excessive, or denial of food, water, a bathroom, or any other basic right is a problem in the case for the prosecution, and could lead to leverage for a reduction, or a dismissal.

Denial of any civil rights, discrimination, or assault by the police that is unjustified force can lead to a separate civil claim – a government claim under the California Government Torts Statute, or a Federal Claim of civil rights as a lawsuit in Federal Court.

Internal Affairs Complaints

Complaints against an individual officer can also be productive.  Every officer has a supervisor, and internal affairs watch officers for corrupt practices or violations of the law. If an officer has several complaints, that usually causes internal affairs to step in to see what interventions need to be made, from discipline against the officer to removal from the duty to criminal prosecution.


The police have a responsibility to follow the law also. If you have questions as to whether the police followed proper procedures in your case, have a lawyer analyze the facts in your case for all aspects that may help you.

Contact our firm if you have any questions, or if you need a DUI lawyer to help in your case.