CVC 40300.5

CVC 40300.5: Warrantless arrest in misdemeanor DUI cases

The California legislature enacted CVC 40300.5, which carved out notable and widely encompassing exceptions to the misdemeanor warrant requirements. 
Under CVC 40300.5, California Law Enforcement Officers are allowed to arrest someone, even if the officer did not witness the misdemeanor being committed in the officer’s presence.

This is a radical departure from the common law rule that a law enforcement officer must witness the crime occurring in order to arrest someone for a misdemeanor. The common law rule is considered so important that it was taken into consideration when the 4th Amendment of our U.S. Constitution was being drafted.

This requirement is known as the “officer’s presence” rule and is a legal protection that has been taken away from everyone at the behest of political lobby groups such as MAAD.

CVC 40300.5 DUI

“Officer’s Presence Rule” or “Misdemeanor Warrant Rule:” How CVC 40300.5 eliminates legal safeguards

California law used to follow the traditional American rule of allowing for arrests for misdemeanors only if the law enforcement officer witnesses the violation or, if not, then upon an arrest warrant, issued by a neutral judge or magistrate based on probable cause that a crime occurred. 

Known as the “misdemeanor presence” rule, the requirement for an arrest warrant by a judge if the officer did not personally observe a crime occurring protects peoples’ individual liberties.  Over the years, the misdemeanor warrant rule has hampered law enforcement efforts in misdemeanor DUI cases because often, the officers involved do not witness a violation of CVC 23152, the DUI statute in California. This type of situation is more common than people think. Often law enforcement officers are not present when a violation of CVC 23152 occurs, and only arrive on the scene after any criminal activity that may or may not have occurred would have already ended.

For example, police come upon someone who decided to pull over and “sober up.” Under the misdemeanor warrant rule, police who happen to come upon the driver after he already has parked his car would not have legal authority to arrest the driver because it is not a crime to sit in a parked car, even if you are impaired by alcohol. Under CVC 40300.5, officers who come upon a driver parked on the side of the road can form the legal basis for arresting the driver for DUI because they no longer need to be present during the misdemeanor offense. (This leads to a result that arguably leads to more danger than it is designed to prevent: the change in law allows the police to arrest someone after they did the smart thing and stopped driving their car so as to wait and sober up. Because this may actually cause more danger than it is designed to reduce, many states do not follow California’s policy of allowing an officer to arrest someone for DUI simply because they are parked on the side of the road.)

CVC 40300.5 in more detail:

The circumstances in which an officer can arrest are as follows:

1.  The person is involved in a traffic accident.

This is the most common application of the new exceptions to the misdemeanor warrant rule.  Often law enforcement officers will arrive at the scene of an accident where the driver is not in the vehicle, and there is no direct evidence of driving.  Officers in these cases rely  upon circumstantial evidence that the driver was in fact driving while under the influence.  The changes to the law under CVC 40300.5 allow officers to arrest a suspect based on minimal evidence of driving if they come upon the person at the scene of an accident.

2.   The person is observed in or about a vehicle that is obstructing a roadway.

This is another common situation where officers can arrest a person for DUI, even though no direct observation of driving is made by the officers.  The circumstances usually involve the driver being asleep at the wheel of their car, blocking a roadway.  Even though no driving is observed by law enforcement, the circumstances show there was in fact impaired driving that led up to the situation.

3.  The person will not be apprehended unless immediately arrested.

4. The person may cause injury to himself or herself or damage property unless immediately arrested.

5.  The person may destroy or conceal evidence of the crime unless immediately arrested.

3, 4 and 5 are less frequently invoked and carry a danger of abuse by police, because arguably any suspect in any criminal investigation may evade capture if not arrested immediately.   Courts are less likely to rely upon 3,4 or 5 because they effectively carve out too large an exception to the warrant requirement in the misdemeanor warrant rule.

Useful Links for DUI arrest and CVC 40300.5

Presentation on 4th Amendment/Misdemeanor Presence Rule Issues A discussion that includes information on search and seizure, which an arrest certainly qualifies as.

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