The police sometimes arrest people for misdemeanor DUI when they don't have a right to do so. For example, in the case of Glenn Steiner v. the State of Florida, the facts were as follows:
A security guard at a condominium complex noticed the driver of an automobile which was stopped in the driveway near the guardhouse of the complex. The driver (who turned out to be Mr. Steiner) was attempting to start the car. Observing smoke coming from under the hood of the car and believing it to be on fire, the guard helped Steiner get out of the car. When he saw that Steiner was "swinging from side to side," he took him by the arm to the guardhouse and made him sit in a chair outside of the guardhouse. The guard then called 911. The first officer on scene was a community service aide, not a deputized police officer. That aide spoke with Steiner who told the aide that he was trying to restart his car when the guard removed him from it. The aide smelled alcohol on Steiner's breath and called for another officer to conduct a DUI investigation. The aide never saw Steiner behind the wheel of the car. The DUI investigator arrived and while speaking with Steiner, noticed an odor of alcohol on his breath. The investigator arrested Steiner for DUI and took him to the police station where he was videotaped and given a breath test.
When his case went to court, Steiner successfully argued that he was arrested unlawfully because the misdemeanor DUI that he was arrested for was committed outside the presence of the DUI investigator. The judge to which Steiner's case was assigned noted that Florida law allows the police to arrest someone for a misdemeanor DUI when one of the following three circumstances exists:
1. When an officer actually sees the crime committed.
2. When an officer is investigating an accident, he may develop probable cause to arrest someone for misdemeanor DUI; or
3. When one officer calls another officer for assistance, the combined observations of the officers may establish probable cause to make an arrest (sometimes called "the fellow officer rule").
In Steiner's case, the first circumstance did not exist because neither the community service aide nor the DUI investigator saw Steiner behind the wheel of his car. The second circumstance also did not exist because what the aide saw was not an accident. Rather, he saw a car that had malfunctioned resulting in a fire and the car becoming undriveable. Finally, the third circumstance did not exist because the security guard was not a police officer.
Because none of these three circumstances existed, the judge ruled that Steiner was unlawfully arrested.
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