DUI and Lack of Probable Cause

By Andrew Mishlove on February 05, 2019


Driving a car late at nightHere at Mishlove & Stuckert, LLC, we understand the seriousness of driving under the influence (DUI)/operating while intoxicated (OWI) charges. They come with stiff penalties, possible jail or prison time, and can have a negative effect on your current life and livelihood. That’s why we fight diligently for the people of Wisconsin, helping them know their legal rights.

Sometimes a driver’s legal protections are violated because they are arrested without probable cause. Let’s take a moment to explore these matters and how they apply to DUI/OWI arrests.

“Probable Cause” Defined

Probable cause refers to instances in which a police officer has sufficient reason based on facts to believe that a crime has occurred or that a crime is in progress. Probable cause is necessary for a police officer to make an arrest without first obtaining a warrant. In the context of drunk driving charges, an officer would need probable cause to pull a motorist over, perform a sobriety test, and then make an OWI arrest based on the outcome of the sobriety test.

Situations in Which There Is Probable Cause

Some common situations in which there would be probable cause for a drunk driving stop and subsequent sobriety testing may include:

  • Motor Vehicle Accidents - If there is a vehicle accident, the police officer who arrives on the scene may perform sobriety tests to determine if drunk driving contributed to the collision occurring. Given that drunk driving is a factor in many crashes, this would be within reason.
  • Traffic Violations - If a motorist was speeding, ran a red light, or violates the rules of the road and a police officer sees it, that’s at least probable cause for a traffic stop, which could lead to a sobriety check.
  • Poor/Dangerous Driving - Speeding, weaving, and other reckless or risky behaviors behind the wheel may prompt a police officer to pull someone over. A sobriety test may also follow.
  • Observing Signs of Intoxication - During a traffic stop, a police officer may observe possible signs of intoxication, from slurred speech to the smell of alcohol. This is consider probable cause to proceed with a field sobriety test or breathalyzer.

Lack of Probable Cause Examples

Even though the above seems relatively cut and dry, there are many instances of drunk driving arrests being made without probable cause. Some examples of this may include the following:

  • Racial Profiling - If a driver was pulled over simply because of the color of their skin or their race, this is not probable cause for the traffic stop or subsequent arrest.
  • Officer Never Saw the Vehicle in Motion - A person in a stationary vehicle would not have committed a moving violation that would prompt an officer to be suspicious.
  • Arrest When Person Isn’t in Vehicle - If you’re walking out of a bar on your way to your vehicle, that alone is not probable cause for police to make an arrest.
  • Pulled Over without Reason - If you are lost or driving late at night and are simply pulled over for that, it is not probable cause for a sobriety check.

How a Drunk Driving Defense Lawyer Can Help

A drunk driving defense lawyer will be familiar with the granular matters of probable cause. They can help determine if your civil rights and protections were violated. If so, a drunk driving attorney can fight to reduce charges or have them dropped entirely based on the nature of your arrest.

Contact Our Team of OWI Lawyers

For more information about your legal rights and options following a potentially unjust OWI charge, be sure to contact our team of drunk driving defense lawyers. The legal team at Mishlove & Stuckert, LLC is here to fight for you. You can reach our Milwaukee office by phone at (414) 206-6912, our Oshkosh office at (920) 212-7248, our West Bend office at (262) 239-4499, and our Waukesha office at (262) 330-1733.

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