San Diego DUI Law Center

DMV’s View of California DUI Search & Seizure

California attorneys inquire as to the lawfulness of each DUI stop and Drunk Driving arrest.

San Diego lawyers remind there must be probable cause to contact and a lawful DUI arrest.

DMV discusses Search & Seizure, Consensual Encounters, Detentions, Problems, some Case Law, Exigent Circumstances, Citizen Arrests and Distinct Offenses, in its APS (DUI-related) Manual:

“12.084 Search and Seizure

The Fourth Amendment to the U.S. Constitution guarantees against unreasonable searches and seizures. Search and seizure refers to any contact with an individual by authorities where that contact leads to a detention for the purposes of investigation. The term “search” in this context is synonymous with investigation. The term “seizure” refers to a situation where a person is not free to leave and go about their business. There is considerable case law dealing with the analysis of search and seizure, defining what constitutes lawful versus unlawful search and seizure of a person by a peace officer.

Both the U.S. Supreme Court and the California Supreme Court have identified essentially three levels of police contacts or interactions with individuals:

1. Consensual encounters: Interactions that do not result in restraint of an individual’s personal liberty whatsoever and the individual is fully free to avoid the contact and leave, such as when an officer contacts a person merely to ask the correct time. The person does not have to answer and may leave without responding. Such contacts may be initiated by peace officers even if they lack objective justification.

The courts have consistently ruled that the freedom to leave and avoid the encounter is to be judged from the viewpoint of the individual, not the peace officer. Any display of official authority by the officer, such as activating the flashing of emergency lights, which would make a reasonable person believe they are not free to leave, gives rise to an unlawful encounter if there is no basis for detention or arrest.

2. Detentions: Seizures of an individual strictly limited in their duration, scope and purpose. The peace officer may undertake a detention only when there is a suspicion that the person has committed, or is about to commit, a crime. It must be objectively reasonable for the officer to hold their subjective suspicion.

3. Arrests or equivalent seizures: Are constitutionally permissible only if the peace officer has probable cause to arrest an individual for a crime. (§836 & §837 PC) It is permissible for the level of interaction to proceed to the next level, as long as grounds for each level of contact are justified.

The search and seizure issues in a DUl arrest are usually very straightforward because the officer has viewed an unsafe driving maneuver establishing grounds for a detention and further investigation. In accident situations or when a vehicle blocks a roadway, §40300.5 specifically allows for a lawful search and seizure.

Cases exist where the contact made by the peace officer does not necessarily give grounds for a detention or an investigation without the consent of the citizen. In such cases, hearing officers should be aware of the case law rulings governing such contacts.

12.085 Search and Seizure Laws & APS Hearings

Under the Constitution and our system of law, warrantless searches and seizures are presumptively illegal. The burden is upon the prosecuting party to show that the peace officer’s conduct was justified. This burden is met in a simple straightforward manner in most of the APS hearings. The peace officer had immediate reasonable suspicion due to having observed a violation of the Vehicle Code, unsafe driving, or had arrived at the scene of a traffic collision; thus, establishing the initial level of interaction of a detention.

During the initial contact with the driver, the officer may observe objective symptoms of intoxication. The totality of the circumstances may establish grounds for extending the detention to conduct a DUl investigation. Together, the officer’s observations and conclusions based on questions of the driver, field sobriety tests, and other evidence establishes probable cause to arrest.

Problems can arise in interpreting and applying search and seizure laws when the officer:

• does not observe a driving infraction.
• does not receive a report from another officer or private citizen of a driving infraction or unsafe driving,
• is not investigating a traffic collision with a driver present.

Search and seizure issues may also arise when an alleged driver flees apprehension prior to an investigation or is contacted within their home following the alleged driving. Search and seizure also comes into play when an officer enters and searches a vehicle for evidence prior to an arrest, unless the driver consents to the search.

In judging what is “reasonable”, the hearing officer may consider “the totality of the circumstances”. The “totality ofthe circumstances” means all the circumstances surrounding the search/stop. Single elements, such as a high crime area, which might be insufficient alone to justify a detention, combined with other elements to form a totality of circumstances supporting the officer’s reasonable suspicion, may justify a detention. Each case must be judged on its own facts.

Case law allows for a proper detention based on information a peace officer receives which is assumed reliable, such as an eyewitness, victim of a collision, another officer, a dispatcher, etc. The court determined in Lowry v. Gutierrez, 2005 129 Cal.App.t” 926 that the contents of a call to police from an anonymous cell phone user gave the patrol officer reasonable cause to briefly stop a motorist’s vehicle for purposes of investigating the reported erratic driving. In this instance, the Upland Police Department received a report about a reckless driver from an anonymous cell phone caller. According to the caller, the driver of the vehicle drove the wrong way on Benson Avenue and then turned left onto Baseline Road in front of oncoming traffic. The caller described the vehicle, gave the vehicle license number, and stated the driver was a male. Four to five minutes
after Officer Hall received the dispatch he spotted a vehicle matching the cell phone caller’s description. It took Hall approximately 30 to 40 seconds to catch up to the vehicle and stop it. During this time, the vehicle was traveling at a safe speed and Hall observed no traffic violations.

Hearing officers should realize that certain circumstances may justify a search and seizure of an individual that is not otherwise justified. Generally, these circumstances fall into two areas, officer safety and exigent (emergency) circumstances.


During the course of a consensual encounter, if an individual reaches for what the officer may believe to be a weapon due to a bulging in the person’s clothing, the officer is allowed to restrain and search the driver.


Search and seizure is allowed for circumstances surrounding an emergency when necessary (1) to preserve life or property, such as pulling someone out of a burning car, or (2) to prevent the destruction of evidence, including the dissipation of blood alcohol content.

Those cases involving entry into a house or other building to search for, apprehend, or question a suspect, such as a person fleeing after a hit and run accident; several additional search and seizure issues are raised. One of these is “standing”. Standing refers to whether an individual resides in the domicile or vehicle to be searched, or owns the container or piece of property to be searched, or whether the person is in a position to speak on the behalf of the owner as to giving consent for a search. A person fleeing into a stranger’s house has no standing by which to deny the officers consent to search the house, whereas standing applies if it is their own house.

The picture becomes cloudier when individuals borrow vehicles, stay at a friend’s home, rent a motel room, etc. A US Supreme Court ruling Georgia v. Randolph, concluded; “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable.”

The following are additional case law references that pertain to search and seizure:

Arburn v. DMV Cal.App. 6th

Florida v. Rover v (1983) 460 U.S. 491
Hildebrand v. DMV (2007)152 Cal.App.4th 1562

Horton v. California (1990) 496 U.S. 128
In re Tonv C. (1978)21 Ca1.3d 888

People v. Gorak (1987) 196 Cal.App.3d 1032
People v. Harris (1975) 15 Ca1.3d 384
People v. Keltie (1983) 148

People v. Lopez (1989) 212 Cal.App. 3d 289
People v. Miranda (1993) 17 Cal.App.4th 917

People v. Rodriguez (I 993) 21 Cal.App.4 232
People v. Uribe (1993) 12 Cal.App.4th 1432

People v. Valencia (1993) 20 Cal.App.4th 906
People v. Wells (2006) S 128640

People v. Williams (1988) 45 Ca1.3d 1268
People v. Johnson (1991) 231 Cal.App.3d 11

People v. Thompson (2006)38 Cal.4th 811
Terry v. Ohio (1968) 392 U.S. I

US v. Johnson No 90-50329 (9Circuit, 1993) 990 F.2d 1129
Wilson v. Superior Ct (1983) 34 Ca1.3d 777

12.086 The Word “Arrest” Is Not Required

No special phrase, such as “you are under arrest,” is needed for a lawful arrest. An officer told the driver in Ormonde v. DMV, 1981 117 Cal.App.3d 809 that he was being “detained” for possible drunk driving and never used the word “arrested.” The officer placed the driver in the back seat of the patrol car, explained the chemical tests, and took him to the police station. After the officer read the admonition, the driver refused. The court held that the essential elements of an arrest were present even if the actual words were not used. “We see no purpose in adding magic words to the apprehension of drunk drivers.” The court held that the driver was arrested at the scene and his repeated requests to speak to his attorney showed he understood it was an arrest.

12.087 Police Assisted Citizen’s Arrest

In case law Padilla v. Meese, 1986 184 Cal.App.3d 1022 the private citizen may make a citizen’s arrest, or take some action, verbally or physically to detain the person until an officer arrives (§834 PC). The Court of Appeal noted that the delegation of the physical act of arrest need not be expressed, but may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect. The actions commenced by the citizen and completed by a law enforcement officer in this case conform in all significant respect to a standard citizen’s arrest with delegation of the physical arrest to the highway patrol officer. Moments before the incident a citizen had complained to Miller, a scale employee, about plaintiffs erratic driving. Miller observed plaintiff drive his truck into the inspection station, and from his speech and the odor of alcohol about him, Miller reasonably concluded he was in violation of Vehicle Code §23152. Miller told plaintiff that he had been drinking too much to drive and told him to pull over and park. He summoned Nagel, a highway patrol officer, and upon his arrival told him of his conclusions. Nagel performed the physical act of arrest. In viewing the entire transaction rather than focusing upon Nagel’s participation in isolation, the court concluded the arrest was valid.

12.088 Offenses Separate & Distinct From The DUI Arrest

The driver’s arrest must be for an offense committed in violation of §23152 or §23153 VC. In addition to an arrest under these sections, the person may be arrested and/or booked for other offenses, such as assault on a peace officer, possession of a concealed weapon, etc. However, testimony or the officer’s report should make it clear that the violation of §23l52 or §23153 VC was a separate and distinct offense.”

[Full Text from California DMV Administrative Per Se (APS) Hearings (Chapter 12) Driver Safety Manual, pages 12-38 through 12-41.]