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What is required for a citizen to make a valid arrest for DUI? DUI Citizen's Arrest

 DUI Citizen's Arrest
What is required for a citizen to make a valid arrest for DUI?

What is required for a citizen to make a valid arrest for DUI?


Sometimes citizens try to detain and arrest driver's to hold them for the Police to arrive. This citizen's arrest  is not always legal and can result in all evidence seized from the Defendant, including the results of any field sobriety exercises and any matters related to the intoxilizer test bring suppressed. The evidence can be thrown out an the DUI conviction can be avoided. The standard for a valid citizen arrest is set forth in McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980). The crime of DUI constitutes a breach of peace, for which a citizen who has observed said breach can effect a citizen's arrest.

The standard for a valid citizen's arrest is as follows:






(1) A purpose or intention to effect an arrest under a real or pretended authority;



(2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;

(3) a communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and 

(4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Citing Melton v. State, 75 So.2d 291, 294 (Fla. 1954) (citation omitted). State v. Parnell, 221 So.2d 129 (Fla.1969); Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).

Complete Text of Recent DUI Citizen's Arrest Opinion



STATE OF FLORIDA vs. XXXXXXX, Defendant. County Court, 7th Judicial Circuit in and for Flagler County. Case No. 2015 CT 1083. June 22, 2016. D. Melissa Moore Stens, Judge. Counsel: G. Kipling Miller, for Defendant.


ORDER ON DEFENDANT'S MOTION TO SUPPRESS

THIS MATTER came to be heard on the Motion to Suppress. The Court, having heard testimony from the arresting officer, Deputy William Nunziato, and witness John Moscowitz, and having heard argument from both Counsel for the State and the Defendant, the Court makes the following findings of fact:

1. John Moscowitz testified that he was traveling on US1 northbound, when he observed a small red vehicle coming southbound in his lane of travel. Mr. Moscowitz testified that he maneuvered out of the lane to avoid a collision, and then made a U-turn at the next available location to get emergency personnel assistance. Another vehicle was able to slow the small red vehicle and get it to a stop on US1 in the northbound lanes facing southbound when Mr. Moscowitz came upon the vehicle again.

2. When Mr. Moscowitz approached the vehicle, he observed a female in the driver's seat conscious and appearing remorseful in his words. He was able to request that she get her vehicle off the roadway and shut the vehicle off. Mr. Moscowitz testified that the female initially stayed in her vehicle and did not turn it off. He then asked for the keys to avoid her putting the vehicle back in gear, and he placed the keys on top of the roof of the vehicle.

3. Mr. Moscowitz, being a first responder by trade, inquired as to medical needs of the driver, as he witnessed her unsteady on her feet, almost to the point of falling. He directed her to sit in the passenger seat of the vehicle to await on duty first responders. Mr. Moscowitz waited until police arrived and conveyed what he witnessed to them.

4. Deputy William Nunziato testified that he was on duty working DUI patrol on the evening of December 23, 2015 when he was dispatched to US1 near Eagle Hawk Estates regarding a possible DUI.

5. Deputy Nunziato testified that when he responded to the area, he observed a red two door Mercedes facing southbound in the northbound lanes of US1 on the left shoulder. There were other police cars and other vehicles present. The female was outside of the passenger side of the vehicle.

6. Deputy Nunziato confirmed that he never witnessed her driving or in actual physical control of the vehicle.

7. It is this sequence of events on which the Defendant bases her Motion to Suppress.

8. Both the State and Defense agree that the only justification for the arrest of the Defendant would be a citizen arrest. Likewise, both the State and Defense agree that the crime of DUI constitutes a breach of peace, for which a citizen who has observed said breach can effect a citizen's arrest. See Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985); State v. Furr, 723 So.2d 842 (Fla. 1st DCA 1998)[23 Fla. L. Weekly D2514a]; Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997)[22 Fla. L. Weekly D850a].

9. The standard for a valid citizen arrest is set forth in McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980). These are as follows:

(1) A purpose or intention to effect an arrest under a real or pretended authority;
(2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; 
(3) a communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and 
(4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Citing Melton v. State, 75 So.2d 291, 294 (Fla. 1954) (citation omitted). State v. Parnell, 221 So.2d 129 (Fla.1969); Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).

10. In the instant case, it is clear that Mr. Moscowitz intended to “detain” the female so that she could be further evaluated by medical and law enforcement personnel. However, whether he intended to “arrest” her for DUI is unclear. Thus, the first, third, and fourth prongs of the McAnnis test are not met by the testimony presented. See also State v. Nancy Jones, 22 Fla. L. Weekly Supp. 986a (Fla. Eighteenth Judicial Circuit February 2015); State v. Guy Lathrop, unpublished Seventh Judicial Circuit opinion, (CTC03-51297MMAES May 21, 2004).

Based upon the above findings of fact, it is therefore ORDERED AND ADJUDGED as follows:

The Defendant's Motion to Suppress is GRANTED. All evidence seized from the Defendant DIANE XXXXXXX, including the results of any field sobriety exercises and any matters related to the intoxilizer test are suppressed.

Florida Law Weekly summarized the case as follows:

"Officers did not have probable cause to arrest defendant for DUI where officers observed defendant standing beside vehicle parked in wrong direction on side of highway but did not observe her driving or in actual physical control of vehicle"

"Off-duty first responder who observed defendant driving wrong way on highway, took away her vehicle keys when she came to stop, and directed her to sit in passenger seat to await on-duty first responders did not effect citizen's arrest where it is clear that he intended to detain defendant so that she could be evaluated by medical and law enforcement personnel, but it is not clear whether he intended to arrest defendant for DUI"

"Results of field sobriety exercises and any matters related to breath test are suppressed"

Source: Online Reference: FLWSUPP 2404LEDF