QUESTION

Was there probable cause for law enforcement to approach my parked but running car and proceed to arrest for DUI?

Asked on Nov 26th, 2012 on DUI/DWI - California
More details to this question:
I was sitting in a legally parked but running car, in a residential area, talking to a friend who was sitting in the passenger seat. We were parked there maybe 15-20 minutes. The car was only running because the temp outside was hovering near single digits. I saw a police car a block away who started spotlighting, pulled up behind my car and approached the vehicle, and indicated for me to get out. The officer stated he had seen me, and had seen my car parked in the bar area an hour earlier. I had no face-to-face interaction with any officer while in the bar area. Officer smelled alcohol and arrested me for DUI. I was not asked to take a breath test and refused the field sobriety test. I don’t believe Miranda rights were read to me at the scene. The officer drove me to the hospital to get a blood test, which I refused as I believed they had no right to approach my car in the first place. I was not combative, simply verbally refused to allow blood to be drawn. I stated if they wanted to draw blood they could get a judge’s orders. No attempt to draw blood was made. At the hospital I asked about the Miranda rights, and the officer said "they're right here, on this card." They were not read. I was placed back in the police car and taken to jail where a call was made to the judge. Judge ordered $500 bond and a pbt reading of zeros before I could be released. I finally took a pbt roughly three hours later. Reading at this time was .1 Did the officer have probable cause to approach my vehicle because he had seen my car parked by the bars an hour earlier? I had no face-to face interaction with any officers while in the bar area, so they would have had no knowledge if I had been drinking or if I was a DD for the night. If he did in fact have probable cause, how well does a DUI case hold up in court that has basically no evidence other than the interaction with me at the scene? No driving witnessed –erratic or “perfect”, no blood, pbt or field test at the time.
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5 ANSWERS

Criminal Defense Attorney serving Alhambra, CA at Francis John Cowhig
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Your question requires an attorney consultation. It is not a simple question that can be answered on this type of forum. There are many factors that would need to be considered and evaluated. The short answer is possibly. If he saw you parked for an extended period of time, he could have probably cause to investigate why you were their. I strongly suggest that you contact an experienced criminal defense attorney for a face-to-face consultation and give him/her all of the facts surrounding your situation. He/she would then be in a better position to analyze your case and advise you of your options.
Answered on Nov 29th, 2012 at 7:02 AM

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Immigration Attorney serving Salt Lake City, UT
Partner at Natty Shafer Law
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It sounds like you have a case and many judges would find that the officer did not have probable cause to arrest you. You should hire a lawyer to help you fight the charge. However, I should point out that .1 is over the limit of .08 and if that was what the pbt said, and not .01, you could be convicted based on that. That's why it's very important that you get a lawyer to help you get the evidence suppressed.
Answered on Nov 29th, 2012 at 5:14 AM

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Michael J. Breczinski
Well the officer had a right to approach and ask questions. You were stopped so he did not stop you. And once he smelled alcohol he had a right to ask for the pbt etc. The reason is in many States a parked car that is running has been deemed to be operating it and that is enough under the Statute. You need a good attorney.
Answered on Nov 29th, 2012 at 5:09 AM

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Bankruptcy Attorney serving Federal Way, WA at Freeborn Law Offices P.S.
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You really need to hire an attorney to help you with this, as I would have to see all of the facts of the case. You may have screwed yourself by not allowing the blood draw. If the officer had reason to believe that you were under the influence of drugs, he is allowed to request a blood draw. It is part of the implied consent law, which means that in exchange for a license to drive, you give implied consent to submit to a blood or breath test if requested by an officer. Your refusal to comply could result in Department of Licensing suspending your license for a minimum of 1 year.... even if you were to win the DUI case. The fact that you refused to submit to the blood test can also be used as evidence against you in the DUI case. You raise many other issues in your question. You need to get an attorney.
Answered on Nov 29th, 2012 at 4:54 AM

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They can use circumstantial evidence to show that, even if not witnessed, you must have been driving just a few moments ago before the cop's arrival. You need to hire a DUI specialist, and do it soon because you have only 10 days to save your license.
Answered on Nov 29th, 2012 at 4:46 AM

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