John Coddington House, 2 Marlborough St., Newport, RI 02840-2516

"A majority of DUI and DWI arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer."

With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver's license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

Currently, traffic safety proponents are urging that a police officer be authorized by statute to make a misdemeanor arrest for driving while intoxicated where the crime was not committed in his presence but where, after personal investigation, he finds reasonable grounds to believe that the person did commit the offense. These traffic safety people believe that such increased authority in the area of arrest would be helpful in the investigation of traffic accidents in which it is apparent that one driver was intoxicated but where the officer did not observe the accident.

In a few cases, a charge for driving while intoxicated may be filed solely on the basis of the complaint of a private citizen, and the police fear that the suspect is about to flee the jurisdiction. In these situations, whether a warrant must be issued to make a misdemeanor arrest, or whether the police may make a felony arrest without a warrant on the ground that there is insufficient time to secure a warrant depends on whether the suspect is still intoxicated at the time he is approached by the police. Of course, if some action occurs in their presence that gives them probable cause to stop him, the police may make a valid arrest without a warrant. However, if the suspect is not still intoxicated, and the police are not certain that a felony is involved, a warrant must be secured unless one of the police officers knows of previous convictions of the suspect that would raise the instant offense to a felony level. Consider the following cases:
With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver's license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

Currently, traffic safety proponents are urging that a police officer be authorized by statute to make a misdemeanor arrest for driving while intoxicated where the crime was not committed in his presence but where, after personal investigation, he finds reasonable grounds to believe that the person did commit the offense. These traffic safety people believe that such increased authority in the area of arrest would be helpful in the investigation of traffic accidents in which it is apparent that one driver was intoxicated but where the officer did not observe the accident.

In a few cases, a charge for driving while intoxicated may be filed solely on the basis of the complaint of a private citizen, and the police fear that the suspect is about to flee the jurisdiction. In these situations, whether a warrant must be issued to make a misdemeanor arrest, or whether the police may make a felony arrest without a warrant on the ground that there is insufficient time to secure a warrant depends on whether the suspect is still intoxicated at the time he is approached by the police. Of course, if some action occurs in their presence that gives them probable cause to stop him, the police may make a valid arrest without a warrant. However, if the suspect is not still intoxicated, and the police are not certain that a felony is involved, a warrant must be secured unless one of the police officers knows of previous convictions of the suspect that would raise the instant offense to a felony level. Consider the following cases:


Deputy sheriff had probable cause to arrest defendant without warrant for misdemeanor of disorderly conduct where deputy, after responding to report that Hispanic male in white car was causing damage to certain quarries, discovered red and white car defendant had been driving and saw him asleep in dry creek bed approximately 100 feet from car, front end of which was damaged consistent with its having been driven into and over rocks. Villafuerte v. Lewis (1996, CA9 Ariz) 75 F3d 1330, 96 CDOS 639, 96 Daily Journal DAR 970.

"Fellow officer rule" permits officer to arrest person for misdemeanor driving under influence (DUI) if one officer calls on another officer for assistance and combined observations of two or more officers are united to establish probable cause to arrest. West's F.S.A. §§ 316.645, 901.15(1). Sawyer v. State, 905 So. 2d 232 (Fla. Dist. Ct. App. 2d Dist. 2005); West's Key Number Digest, Automobiles 349(6).

Erratic driving alone is sufficient to raise the reasonable suspicion that a driver is driving under the influence of alcohol and to justify an investigatory stop; the fact that the stop ultimately leads to the discovery of drugs does not in retrospect render the stop pretextual. Croom v. State (1995) 217 Ga App 596, 458 SE2d 679, 95 Fulton County D R 2029.

The strong odor of intoxicants on a motorist's breath, standing alone, can provide a police officer with a reasonable, articulable, particularized suspicion that the motorist was driving while under the influence of intoxicating liquor, as basis for administering roadside sobriety tests. U.S.C.A. Const.Amend. 4; M.C.L.A. § 257.625(1). People v. Rizzo, 243 Mich. App. 151, 622 N.W.2d 319 (2000); West's Key Number Digest, Automobiles 419.

The arrest of defendant for operating a motor vehicle while under the influence of an alcoholic beverage was held to be improper, in State v. Robb (1972) 202 Minn 409, 195 NW2d 587, where defendant was found in his pick-up truck, which was parked on the shoulder of a road with its motor idling and its parking lights on, and defendant was lying on the seat with his head toward the right door and his seat on the floor without any part of his body touching the truck's operating controls.

Officer had probable cause for warrantless arrest for driving under influence where he found defendant sitting in car parked in middle of field, exhibiting poor motor control and slurred speech, and where there was no evidence that motorist had either left scene and returned or consumed alcohol at scene. Hedstrom v. Commissioner of Public Safety (1987, Minn App) 410 NW2d 47.

Offense of driving under influence was not committed in officer's presence, and appellant's arrest was illegal, where officer, after driving toward sound of squealing tires, observed appellant arguing with third person beside parked vehicle with motor off and no keys in ignition; third person's statement that appellant had been driving could not operate to satisfy presence requirement, appellant's statement that she had thrown keys so that third person couldn't get them was not implied admission that she had been driving, and statements and evidence obtained from appellant at police station were inadmissible as fruits of illegal arrest. State v. McDonnell (1984, Minn App) 353 NW2d 678.

Combined perceptions of two troopers satisfied presence requirement for warrantless misdemeanor arrest where one trooper saw defendant's car swerve over center line and another saw signs that defendant was intoxicated. State v. Jensen (1984, Minn App) 351 NW2d 29.

Police officer had probable cause to believe that operation of vehicle was occurring and properly arrested defendant for purpose of administering sobriety test when defendant started to put his keys into car ignition, where officer had seen defendant stagger out of tavern, enter car and place himself in driver's seat, car was illegally parked on sidewalk, and officer saw defendant engage in physical movements to put car in motion by placing key into ignition, even though engine had not been started. State v. Mulcahy (1987) 107 NJ 467, 527 A2d 368.

Officer's failure to formally announce defendant's arrest was not sufficient to vitiate officer's authority to direct administration of chemical blood alcohol test under CLS Veh & Tr § 1194(2)(a)(1) where defendant was unconscious when police first arrived at scene of accident and he remained comatose for approximately 2 more weeks. People v. Goodell (1992) 79 NY2d 869, 581 NYS2d 157, 589 NE2d 380.

Stationing of five- to eight-person police detachment along street constituted traffic checkpoint, which in absence of showing of necessity therefor was unconstitutional, where police closed one lane of travel in street, shone flashlights into passing vehicles to detect violations of law, pulled over defendant's vehicle because defendant was not wearing required seatbelt, and arrested defendant for driving while intoxicated. State v. Skiles (1994, Tex App Fort Worth) 870 SW2d 341, petition for discretionary review ref (Jun 29, 1994).

Substantial evidence of probable cause to arrest driver for driving while under the influence of alcohol (DWI) existed without field sobriety tests, for purposes of upholding driver's implied consent suspension; driver had been exceeding the speed limit by almost fifty percent, he engaged in evasive and furtive behavior in rolling down the window only slightly upon being stopped, driver was unable to pass his license through the narrow opening, demonstrating inadequate eye to hand coordination, he had bloodshot, glassy eyes, police officer detected odor of an alcoholic beverage, and driver admitted drinking, in addition to failing two of three field sobriety tests. Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo. 2000); West's Key Number Digest, Automobiles 349(6).