Arrest for Operating Under the Influence
Generally, the police are not authorized to arrest an individual on a misdemeanor charge. However, the police are authorized to make a warrantless misdemeanor arrest if the offense involves a breach of the peace that took place in the presence of the officers, or if the arrest falls within one of the statutory exceptions. Specifically, motor vehicle offenses often fall within the ambit of arrestable offenses when they occur within the presence of police. However, the rule mandating the presence of the officers is relaxed for the charge of Operating Under the Influence (“OUI”) as long as the police have probable cause to believe that the defendant has committed that offense.
You may encounter this scenario if the police receive a call of a suspected OUI / DWI / DUI and report to the home of the owner of the vehicle. Often the police will need additional evidence of intoxication prior to establishing probable cause for an OUI and thus request that the owner consent to their entry into the home. While a search of a person or place may be conducted without a warrant, the police must gain free and voluntary consent to enter from someone with the ability to grant that entry. The Commonwealth bears the burden of showing that in each particular factual scenerio, the consent was free and voluntary. Consent must neither be coerced nor a mere submission to the request of the police. The court, in determining whether the consent was voluntary, will consider police behavior, employment of trickery or deceit, age and level of education of Defendant, the Defendant’s lack of knowledge of right to refuse, intoxication or influence of drugs, physical injury, prior record (of lack thereof), mental or emotion state, and maturity level.
It is your right to exclude the police from your home if they do not possess a warrant. There are very few exceptions that allow police entry into your home without first obtaining a warrant pursuant to probable cause.
If you have been charged with Operating Under the Influence and need experienced trial counsel to represent you, please contact Criminal Lawyer Kristen Bonavita at (978) 376-6746.