Menu 
Law Firm of Aaron Bortel

Does The Officer Have To Show Probable Cause To Initiate A DUI Investigation?


When you say the officer, I am assuming you are talking about the police officer and yes, because the DMV person who does the hearing is called a Hearing Officer. Nevertheless, yes, I mean that is one of the elements. They need probable cause to pull someone over or initiate a DUI investigation. Different types of probable causes in DUI cases are any type of traffic infraction. The officer pulls someone over, and if he smells the odor of an alcoholic beverage, even if the person says, “I only had one drink”, the officer gets to initiate a DWI investigation. In addition, they do not arrest everybody for a DUI. Different officers may say, “I have arrested 50% of the people when I smelled alcohol on the breath”, or some say more and are they always right?

No, they are not always right. But the officer is supposed to have probable cause. Sometimes we win these cases because the officer did not have sufficient probable cause. One example would be someone who is driving, they drive cross over the line but do not drive all the way over it, and that is all the officers’ sees. If that is it, there is case law that says that is not enough. Now, there are plenty of judges out there who would say, “Well, if the officer saw pronounced weaving for a long enough period of time, and then the person drove over the line that that would be plenty or just pronounced weaving on its own without even driving under the line.”

The case law is not on our side in a DUI defense, which is why it is so important to get an attorney who will take a case with insufficient probable cause, or something that does not look like sufficient probable cause. They need to do what is called a suppression motion and try to get the court to rule in their favor. If they do not, and they feel like the court has made a mistake, or that the court aired in judgment, and then we appeal it, which is the next level. Nevertheless, we have to fight these cases, so it is important to get an experienced DUI lawyer who will go after probable cause. I spoke with someone earlier today who was pulled over, and there was no driving involved and the person ended up being arrested for a DUI.

The issue there is did the officer have probable cause to do a DUI investigation? The officer will probably say, “I saw the person in the driver seat, seat belt may be on or off, car on or off, engine warm, person admitted to driving or someone else in the car may have said that they were driving”, but if the officer does not have enough evidence, that does not go after probable cause. We might be able to win that case with a motion. Every case is different. All the reasons to pull people over with probable cause, is any type of infraction that the officer witnesses, sometimes someone will call 911 , and the officer might not even see the person driving, but they are able to get enough information to initiate a DUI investigation.

I have had that happened before, where someone was already inside the house. If there is an accident or someone just stopped on the side of the road, unless they are in a legal parking space, the officer gets there to check it out, and in most cases do a welfare check. If someone is on the highway and parked, the officer can make sure everything is fine, but if they smell the odor of alcoholic beverage on their breath, they will initiate a DUI investigation. I have seen so many different reasons why someone will be pulled over for a DUI investigation. Other issues may be a taillight is broken, registrations are not updated, missing plates, , headlight out, failure to signal, not stopping at the limit line, running through a stop light or signs, not giving to someone in a crosswalk, the skies the limit on reasons why someone will get pulled over.

Probably half the time on DUI cases that I work on, if they were a little more cautious, they could have avoided these mistakes.

For more information on Probable Cause in a DUI Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

Get your questions answered - Call Us 24/7 For a FREE Case Evaluation (415) 523-7878.

Related Articles