Matthew J. Ruff Appellate Practice Law Blog on Lawyers.com

Attorney Explains The Law Of Legal Arrest in California Court

Tuesday, April 19, 2011 by Matthew J. Ruff

California DUI law is quite explicit in regard to the legality of a arrest. As a general rule, a peace officer may make a lawful arrest without a warrant for a misdemeanor criminal offense only if he or she has probable cause to believe that such an offense is being committed in his or her presence. One very well recognized Criminal Lawyer has opined that When one experienced police officer has reasonable suspicion, based on personal observation, that a motorist may be driving while intoxicated, the arrest may be made by another officer who did not see the motorist commit the alleged DUI, but who is summoned by the first officer.

Furthermore, evidence and other crucial contraband obtained as a result of an unlawful arrest is admissible in subsequent court proceedings unless this evidence is subject to exclusion under the federal exclusionary rules. People v Donaldson (1995) 36CA4th 532, 539. Although Pen C §836(a)(1) provides rules with respect to the lawfulness of a misdemeanor arrest, a court may admit the evidence obtained incident to an arrest made in violation of that section, unless the exclusion is mandated by federal constitutional standards. Another Torrance Attorney commented that the Courts have very definitively ruled. This result is compelled by Cal Const, art I, §28(d) (Proposition 8), which abrogated the judicially created exclusionary rule mandating that evidence obtained incident to an unlawful arrest be excluded. This legal maxim is consistent with well settled legal principles concerning the suppression of evidence on civil rights violations.

The California Legislature did not revive this exclusionary rule as a remedy for an illegal arrest when it amended Pen C §836 after the passage of Proposition 8. 36 CA4th at 534, 539. Admission of the evidence does not violate federal constitutional standards as long as the arresting officer had probable cause to make the arrest. People v Trapane (1991) 1 CA4th Supp 10, 13–14, 3 CR2d 423. The DMV may not suspend or revoke a person’s driving privilege, however, for refusing to submit to a chemical test when the person was not lawfully arrested, this is well understood.

Posted at 23:37 PM

Topic: Appellate Practice