San Diego DUI Law Center

Lawful DUI Arrest or Detention at DMV

California DMV recognizes that a San Diego DUI officer must have probable cause to stop or contact a driver and reasonable cause to believe the driver was DUI (driving under the influence of alcohol) in order to make a lawful DUI arrest, attorneys explain. Lawful Arrest & Probable Cause in San Diego California DUI cases – Defense lawyers can reference the DMV’s own following language from its Driver Safety Manual for DMV APS hearings:


A lawful arrest is the second issue at the APS hearing for drivers over 21 years of age with a BAC of 0.08% or more or 0.04% or more while operating a commercial motor vehicle. A lawful detention is the second issue at an APS/DUI Probation hearing or at a PAS hearing for drivers under 21 years of age with a BAC of 0.0 1% or more.

12.081 Detention

A person who is being held without warrant or charge is considered to be detained. A detention is used as a temporary holding for questioning or as a precautionary measure when that person is suspected of driving under 21 years of age or driving while on DUI probation with a BAC of 0.01% or more.

12.082 Lawful Arrest

There are five components or sub-issues of a lawful arrest for the purposes of an APS hearing:

1. The officer must have probable cause to stop or contact the driver. This amounts to a valid reason for stopping a vehicle and/or contacting a person.

2. The person making the arrest must have established reasonable cause to believe the person was driving under the influence; also known as probable cause to arrest.

3. There must be authority to arrest. This is established in one of the following ways:

• A misdemeanor was committed in the presence of the person making the arrest/detainment, §836, and §837 Pc. Section §23152 VC, driving under the influence of alcohol/drugs, is an example of a misdemeanor, an offense punishable by imprisonment in the county jail.

• A felony committed in or outside of the officer’s presence, §836, and §837 PC. Section §23153 VC, driving under the influence of alcohol/drugs causing injury, is an example of a felony, an offense punishable by imprisonment in the state prison.

In most cases, the officer who sees the driving establishes “presence”. Authority to arrest may also be delegated by an officer who was present, to an officer who was not. (See Section 12.066, Transfer of Reasonable Cause from One Officer to Another, and 12.067, Reasonable Cause to Believe the Person was Driving a Motor Vehicle.)

• Under .§.40300.5 VC, an officer may also make a misdemeanor arrest without a warrant when they have reasonable cause to believe the person was driving under the influence of alcohol/drugs under the circumstances articulated in the section. (See Section 12.067, Reasonable Cause to Believe the Person was Driving a Motor Vehicle).

• The arrest is made pursuant to a warrant.

4. Physical action must be taken to effect the arrest. Under §834 through §837 PC, an arrest is taking a driver into custody. The person is not free to leave. An arrest may be made by a peace officer or by a private person. It is made by actual physical and/or verbal restraint of the driver or by submission to the custody of an officer.

5. The detainment and subsequent arrest must be for an offense committed in violation of §23152, or §23153 Vc. The person may be placed under arrest for other offenses i.e., hit and run, evading a peace officer, resisting arrest, outstanding warrants, etc.

12.083 Reasonable Cause to Arrest

Reasonable cause to arrest is a greater interference with the privacy and freedom of the driver, compared to probable cause to stop, and requires the officer to have facts that can be easily articulated to show the person was driving while under the influence. An officer must have reasonable cause to believe at the time of the arrest, that the person was driving under the influence. What the officer learns later cannot create reasonable cause if it did not exist at the time of arrest. For example, in a doubtful case, an officer may try to get a blood alcohol test without an arrest or without a driving under the influence arrest.”

[From pages 12-36 & 12-37 of DMV Driver Safety Manual, Chapter 12 – Administrative Per Se (APS) Hearings]