Decision to arrest on suspicion of DUI / DWI

You will be under arrest if the police officer informs you that you are under arrest or takes you into police custody and you cannot leave freely or move about. You need not be handcuffed or physically restrained to be considered as under arrest. This article provides general information on when an officer can arrest someone without a warrant and the requirements for a lawful arrest.

Warrantless arrest

Whether a police officer can make a warrantless arrest  depends upon the crime and the circumstances. Most states allow a policeman to make an arrest without a warrant if he or she has probable cause to believe that the defendant committed a felony, even though the crime is not committed in the officer’s presence. In general, crimes that carry maximum prison sentences of more than a certain length of time (usually one year) are considered felonies. If the alleged crime is a misdemeanor and is not actually committed in the officer’s presence, many states prohibit a police officer from making a warrantless arrest.

Discretion of the Arresting Officer

Officers have a wide degree of discretion in determining when to make an arrest. In those situations where the officer does not witness the crime’s commission, the officer must make his own assessment whether a crime was committed, whether the person or persons identified by the victim or witnesses actually committed the crime, and whether there is sufficient evidence, based upon the officer’s experience and training, to demonstrate to a prosecutor and to a judge that the accused committed the crime.

Probable Cause to Arrest on Suspicion of DUI / DWI

The police cannot make a legitimate arrest without probable cause. This means that there is articulated evidence that would make a reasonable person believe that a crime had been committed and that the suspect likely did it. Probable cause consists of facts and circumstances sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

DUI/DWI and Probable Cause

When a police officer pulls over a driver on suspicion of DUI/DWI and the driver fails the breath analyzer test, the police officer will have probable cause to arrest the driver for DUI/DWI

Arrest Warrant

If the police officer has not witnessed the offense or does not have probable cause to arrest a suspect, the police officer must obtain an arrest warrant. An arrest warrant is similar to a search warrant. In an arrest warrant, a judge authorizes a law enforcement officer to place a suspect in custody for a specific offense. The judge bases the arrest warrant on a sworn statement provided by a law enforcement officer. The statement names the suspect or gives a reasonable specific description of the suspect. It also explains the probable cause for why the officer making the statement believes the suspects have committed the crime.

Unlawful arrest

At all times the police officer is required to follow certain procedures required by law. If the officer does not follow any of these procedures while making the arrest, the arrest is an unlawful arrest. You can challenge the unlawful arrest in a court of law. If you succeed in proving that the arrest was unlawful, any evidence collected during the arrest and afterwards cannot be used against you.

Would you like to discuss your legal matter?


Contact Us RECEPTION (209) 492-9335

Click Here to Request a Consultation Via Chat

Our receptionist will assist in scheduling new and existing clients for all offices. For initial consultations we will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter.

Call us or use the email form and we will follow up with you right away.


The Law Offices of Tom Hogan will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 30 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.