DUI
Does the officer have to see you driving under the influence (DUI)?
Penal Code 836 provides that a peace officer may make an arrest for a misdemeanor only when he has probable cause to believe the offense occurred in his presence.
The question of reasonable cause to believe that a misdemeanor is taking place in the officer's presence is measured by events observable to the officers at the time of the arrest. If the officer cannot testify, based on his or her senses, to acts which constitute every material element of the misdemeanor, it cannot be said that the misdemeanor was committed in his presence.
Driving in Arresting Officers Presence
This always involves a question of whether or not the defendant's activities witnessed by the arresting officer amounted to the act of "driving".
Circumstantial Presence Evidence
People v Bellomo (1984) . . . there was no need to decide whether or not the defendant was driving in the presence of the arresting officer when the defendant was found asleep behind the wheel, with the engine running, in a traffic lane, awaiting a red light . . . guilty (40300.5).
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