After a traffic stop and any field sobriety tests, the first stage of the criminal process in a OVI case begins when a police officer places the suspect under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.
A police officer may usually arrest a person in the following circumstances:
The Police Officer Personally Observed a Crime
If a police officer personally sees a person commit a crime, the officer may lawfully arrest that person. For example:
A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver's alcohol intoxication level is more than twice the state's legal limit for safe operation of a vehicle. The police officer can legally arrest the driver for OVI.
The Police Officer Has "Probable Cause" To Arrest
When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed (or is about to commit) a crime, the officer may arrest that person. This belief, known as "Probable Cause", may legally justify a OVI arrest in certain situations where strong indications of OVI are present, but administration of a chemical test is refused or is otherwise not possible. For example:
A police officer pulls over a vehicle that is being driven erratically. The officer notices empty beer bottles in the back seat and the strong odor of alcohol on the driver's breath. Though the driver refuses to submit to a Breathalyzer test, the officer may lawfully arrest him or her based on a probable cause belief that a OVIhas been committed.
An Arrest Warrant Has Been Issued
When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically:
Challenging An Unlawful Arrest
At all stages of the criminal process, including arrest, police officers must protect citizens' constitutional rights, such as the right to remain silent and the right to be free from unreasonable searches. If these rights are violated, a court may later deem the arrest unlawful, and certain evidence may be thrown out of the case.
While a criminal suspect may question the lawfulness of an arrest when it is happening, including the basis for the arrest and the actions of the police officers, that battle is better fought in court than on the street.
Myser & Davies
Attorneys at Law
320 Howard Street
Bridgeport, Ohio 43912
Fax: (740) 635-1601