Introduction

DUI accidents are an exception to a law in Florida which requires that for a police officer to make an arrest for a misdemeanor crime, they must witness all elements of the crime being committed in their presence. This requirement is known as the “presence requirement,” and it applies to a wide range of misdemeanor offenses. However, there are notable exceptions to this rule that allow officers to arrest individuals without directly witnessing the crime. One significant exception pertains to cases involving Driving Under the Influence (DUI).

Understanding Misdemeanor Arrest Requirements in Florida

DUI accidents in which no one is seriously injured are misdemeanors in Florida. Misdemeanors are less severe offenses than felonies.  These crimes have penalties which are less severe than felonies.  The penalties for Misdemeanors can include fines, probation, or short jail sentences up to one year in length.  Examples of misdemeanors include petty theft, disorderly conduct, simple assault and DUI where no one is seriously injured. Florida law requires that an officer witness all elements of a misdemeanor occur to lawfully arrest an individual for a misdemeanor crime. This requirement ensures that arrests are based on direct evidence rather than hearsay or mere suspicion.

The “Presence Requirement”

The “presence requirement” means that all elements of the misdemeanor must occur in the officer’s presence.  In other words, law enforcement must personally observe the crime occurring.  For instance, if someone is accused of DUI, the officer must witness the act of driving or actual physical control of the motor vehicle. This rule is designed to protect individuals from wrongful arrest and to uphold the principle of probable cause.

Challenges of the “Presence Requirement”

While the “presence requirement” serves as a safeguard, it can also pose challenges for law enforcement. Crimes often occur outside the direct view of officers, making it difficult to apprehend offenders immediately. In these cases, even though law enforcement may not be able to arrest someone on the scene, the State Attorney’s office can still file charges later, if the evidence gathered shows that a crime was committed by the individual, but the officers cannot make an arrest at the scene.

DUI Accidents are an Exception to the “Presence Requirement”

Recognizing the limitations of the “presence requirement,” Florida law provides exceptions that allow officers to make arrests without witnessing the crime. These exceptions address situations where public safety and justice necessitate immediate intervention.

DUI Arrests

One of the most crucial exceptions involves DUI accident cases.  Florida law specifically allows an officer investigating at the scene of an accident to make an arrest if he develops probable cause to believe that one or more of the drivers is impaired.  In DUI cases where there is an accident, an officer does not need to see the accused driving or in actual physical control of a vehicle to make an arrest. Instead, the officer can rely on other evidence, such as witness statements, physical signs of intoxication, the results of field sobriety tests or breathalyzer testing.

Other Exceptions

Other exceptions include:

-Domestic Violence

 Violations of restraining orders or protective orders.

– Child abuse or neglect.

These exceptions reflect the need to address specific situations where requiring officer’s to witness the crime could result in further harm or danger to victims.

Implications for Law Enforcement and Public Safety

The exceptions to the “presence requirement” have significant implications for law enforcement and public safety. Recently, an article was published in which Deputies suspected a woman of driving under the influence but couldn’t arrest her because of the requirement that they witness the crime and had no witnesses that could place her behind the wheel of the golf cart she was driving at the time of the accident even though she admitted she was driving.  In our next article we will discuss Florida’s Corpus Delecti rule which forbids the use of a confession without more, which also came into play in this case.  To read the article about this DUI accident case, click here.

Legal Protections

Legal protections are in place to prevent abuse of these exceptions. Individuals who believe they have been wrongfully arrested can challenge the arrest in court. Hiring a knowledgeable DUI defense attorney scrutinize all the evidence and circumstances surrounding your arrest to determine its validity is the best thing you can do if you find yourself in this type of situation.

Conclusion

Florida’s law requiring officers to witness all elements of a misdemeanor crime before making an arrest serves as an essential safeguard for individual rights. However, the state also recognizes the need for exceptions in cases where waiting to observe the crime could result in further harm or jeopardize public safety. DUI accident cases, among others, illustrate the importance of these exceptions, allowing officers to act based on evidence and probable cause. Through proper training and legal oversight, Florida strives to balance the enforcement of misdemeanor laws with the protection of individual liberties.

About the Author

Florida DUI Defense attorney David Katz has been practicing law for 17 years.  He is one of only 3 Board Certified DUI Defense experts in the State of Florida and has handled many cases where the police made an arrest without witnessing all the elements of a DUI accident committed in their presence.  In one such case, Katz represented an individual who crashed his brand-new Lamborghini on his way home from a concert in the Orlando area.  A good Samaritan pulled over and gave the driver a ride home.  Once at home, the driver called the police to report that he had crashed his car, told the 911 operator where the car was and gave his address.  The police responded to the scene of the crash, performed an investigation, then went to the home of the driver.  When the police rang his doorbell, the driver answered the door with a brandy snifter full of crown royal in his hand.  The State Trooper who responded asked him how many of those he had consumed this evening.  The answer was “3 since the accident, I am very sore.”  The trooper had the driver perform field sobriety tests and arrested him for DUI.  This case was dismissed at the first hearing because the officer did not see the offense committed in his presence.  Though there were quite a few other defenses available.

Can Police make an arrest on private property? Click here to read our article.