13 Examples Of Lack of Probable Cause For A DUI Stop or Arrest

In this list, I will show you 13 examples of police officers lacking reasonable suspicion for a DUI stop or probable cause to arrest for DUI in California.

In fact:

Lacking reasonable suspicion for a DUI stop or probable cause to arrest are among the most powerful defenses we have used to get DUI cases reduced or dismissed.

Let’s get started…

Lack Of Probable Cause

1) Police Not On The Scene

Police come to your residence investigating a car accident based only on your license plate having been identified by a third party as being involved in the collision.

The witness could not provide any description of the driver. 

police talking to witness

Upon arrival to your home several hours later, the police officer finds you at home and under the influence of alcohol and arrests you for DUI.  

In this case, the officer observed you at your home as:

  • Stumbling,
  • Slurring your speech, or
  • Exhibiting other indicia of being under the influence.

If you make no statements or admissions to the officer, there is no probable cause to arrest you for DUI. 

The officer needs to do a further, more in-depth investigation into who the driver could have been. 

2) Not Clear Who Was Driving

You are found standing outside of your vehicle with other persons, all similar height to you around the car and no one admits to driving. 

Even though the car is registered to you, there is no way for the officer to know who was driving and if that person was under the influence at that time. 

3) Racial Profiling

You were stopped based on your race such as for driving in a predominantly caucasian neighborhood.

  • Race,
  • Religion,
  • National origin,
  • Gender identification, or creed

Cannot be the basis for stopping you.

Although police will rarely, if ever, state that this is the sole reason why you were pulled over, your DUI attorney will have to demonstrate a substantial disparity in the race of persons who are stopped and detained or a disproportionate ratio of police stopping persons of color.

Communications within the police department or from dispatchers, if recoverable, can point to racial bias in targeting certain groups of people.

4) Vehicle Never Moved

You are arrested for DUI because the car engine was on but the officer never saw the vehicle move1.

Under California law, the officer must have seen your vehicle move, even if it was a few inches, or that you were about to engage the vehicle by turning it on.

man starting car

However, if the vehicle rolls forward or backward because the emergency brake is off and despite the engine being shut off, this constitutes driving.

Furthermore, the officer can use circumstantial evidence of your driving to make the arrest.

This includes finding you asleep inside your vehicle, while in the middle of an intersection at a red light. 

man asleep at wheel

While the vehicle hasn’t moved, the officer can reasonably conclude that you must have driven it to that destination, while under the influence. 

5) Stopped Out Of Turn

At a DUI checkpoint, where the plan was to stop every other vehicle, the officer stops your vehicle out of turn and for no articulable reason.

The stop may be challenged as unlawful. 

DUI checkpoints are legal in California so long as the stops are minimally intrusive and police follow certain criteria such as:

  • Supervising officers oversee the process and make all decisions on its operation
  • Basis for stops are neutral (random)–cannot stop you because of race or condition of your car
  • Checkpoint is reasonably and safely located
  • Roadblock was publicly advertised in advance
  • Roadblock was clearly marked as such
  • There was a way for motorists to turn and avoid the roadblock
  • Detentions are lasting too long

If the officer did not follow the plan of the checkpoint, and can not point to any articulable reasons for the stop, the stop itself may be challenged and all information obtained excluded from the evidence of the case if the motion brought by the defense attorney is granted. 

6) Merely Leaving A Bar

You were stopped because police saw you exit a bar after having observed the bar for several hours and see you get into your vehicle and begin to drive. 

Merely keaving a bar after having been there for several hours does not justify a stop absent the officer having observed you violate a specific traffic law such as:

  • Speeding,
  • Making an unsafe lane change
  • Failing to stop at a red traffic signal, or
  • That you were weaving within or outside your lane of traffic or other unsafe driving conduct2. 

7) Lack Of Specific Details

At a Penal Code §1538.5 motion to suppress or Penal Code § 995 hearing if a felony, the officer provided no specifics on your driving conduct, performance on sobriety tests, or your demeanor and only testified generally that he stopped and arrested you based on these factors. 

The officer must articulate specific facts that lead to the conclusion that a crime was committed.

If the officer can only remember generalities or refuses to divulge the specific reasons for the stop or arrest, the evidence may be suppressed. 

8) Late Night Driving

You were stopped because you were driving late at night or in the early morning hours.

If the officer is merely fishing because he/she believes that a person driving just after bars close is likely under the influence, but has no traffic violation or specifics as to the driving that would lend to the conclusion that the driver may be impaired, the stop may be unlawful and successfully challenged in an appropriate motion. 

9) Odor Of Alcohol

The officer arrests you for DUI based solely on his detecting an odor of alcohol and observing your bloodshot eyes. 

These factors alone are insufficient to arrest you for DUI because these facts alone are not reasonably trustworthy information sufficient to warrant a prudent person to believe you had committed a crime3.

However, the odor of alcohol is enough to further investigate the possibility that the defendant is under the influence of alcohol.

10) Connected By Name Only

Officers are notified that a person named Steve was seen driving erratically and police know you as Steve and that you have a prior record of DUI and drug activity and stop you when you are seen simply driving.

11) Tinted Windows

An officer stops you based on the erroneous and unreasonable legal assumption that your tinted window is a violation of law4.

However, the officer’s mistake of law must have been unreasonable because the law was clear and unambiguous in stating that tinted windows are legal.

If the officer’s mistake was a reasonable one, though, then the stop was likely valid5.

It is unclear as to what is a reasonable mistake of law by a police officer.

12) Refuse To Answer Police Questions

An officer arrests you on suspicion of DUI because you refused to answer questions about drinking and/or refused to perform any field sobriety tests. 

Unless the officer can point to other reasons for the arrest, there is insufficient probable cause.

13) Swerving Once

An officer concludes you are driving under the influence because you swerved once but otherwise remained wholly within your lane for an appreciable amount of time.

The common features of these last 4 examples are that the officer failed to either

1.  Point to a reasonable basis to suspect you had broken the law or were breaking the law in order to justify stopping your car, or

2.  Provide a reasonable belief based on specific and articulable facts existing at the time of the event to believe that you were driving under the influence of alcohol or DUI of drugs. 

Are Police Allowed To Make Brief Investigatitve Stops?

The law does allow a brief investigative traffic stop so long as the officer has a

particularized and objective basis for suspecting the person stopped of criminal activity6.

However, the officer must be able to point to known facts existing at the time of the determination that “would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”7.

Important Information

Next Steps

If you have been arrested and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Get Legal Help Now

Request A Free Consultation 818-351-9555 


  1. Mercer v. DMV (1991) 53 Cal.3d 753, endnote 4 []
  2. People v. Bower (1979) 24 Cal.3d 638, 644 []
  3. Beck v. Ohio (1964) 379 U.S. 80, 91 []
  4. People v. Butler (1988) 202 Cal.App.3d 602, 606-607 []
  5. Heien v. North Carolina (2014) 135 S.Ct. 530 []
  6. U.S. v. Cortez (1981) 449 U.S. 411, 417, 418; Terry v. Ohio (1968) 392 U.S. 1, 21 []
  7. People v. Price (1991) 1 Cal.4th 324, 410; Schmerber v. California (1966) 384 U.S. 757 []

1 comment

I’ve been watching some of your videos, and the more I watch I realize my lawyer I had didn’t know what he was doing. Let me start off with this. I’m from Wisconsin and I know some laws differ from California . HOWEVER. Our constitutional rights remain the same I believe my 4th and 5th amendment rights where violated. But my LAWYER never once brought that up before and during my trial. I knew my DUI was gonna be televised on the news. And yes it was on the local news. But everything that they said was all incorrect. Making me look like I’m a bad citizen when in REALITY. The police officer didn’t know his own laws. What I want to do is actually put the videos on YouTube to have everyone watch how corrupt the system really is. Let me tell you a little about the case. First off I would like to say at the point of me getting pulled over I had a active breathalyzer installed. This device is to prevent you from driving under the influence. Wisconsin limit is a .08. However if the device is installed it’s a. 02 restriction. So I pick up my buddy who is really drunk from the bar. Long story short I slam his drink. Because I needed to work the next day and he didn’t want to leave until his drink was finished. I know the drink was strong but I blow into my breathalyzer and I passed. Right when I pulled out not even 2 minutes went passed I get pulled over. The cop lied on why he pulled me over . He said my license was revoked. I said I have all the proper information that says I’m not. Then he said have u been drinking I smell alchohol I said that’s my buddy I just picked him up to bring him home. And I have a breathalyzer installed in my truck. He said u do. I said yes. Now when he returns he said Jesse step out of the vehicle. I did. Then he said im gonna be completely honest with you . I pulled you over because you have a warrant. When looking back at all this. He didn’t pull me over for a warrant he just found out I had a warrant when he went back to his squad car. So basically he pulled me over for nothing. But here is where it gets really messed up. As I’m being arrested. Keep in mine I already have handcuffs on and he is searching my pockets he ask me again if I drank tonight. I told him the truth and said I finished my buddy’s drink. But I’m fine because I passed my breathalyzer. He said okay that’s fine. As I’m sitting in the back of the squad car. I’m getting really upset because they couldn’t show me the warrant. Till this day I haven’t seen anything about a active warrant I had. Actually when I did my own investigation. I seen it on CCAP. However the warrant was not active. They dismissed the warrant. Now the warrant was from a unpaid ticket. Normally they garnish my taxes. So I called the tax people who intercepte my tax returns to pay unpaid fines. And the lady at the time said yes we are gonna garnish your taxes for this so and so ticket. With that being said. Who is lieing here? Now back to me complaining in the back of the squad car. The one officer kept asking me questions I said I’m not talking to nobody. I want my LAWYER. As he kept asking questions I said plain as day. I want to REMAIN silent. This is my right. I’m under arrest for a warrant therefore I’m done answering questions and talking . As the other officer approached the squad car he tells me can u blow in this device. I said what. I have a breathalyzer in my truck and now u are doing this. I said I’m under ARREST for a warrant I’m not gonna do anything. I want to talk to my LAWYER now. I also told this officer I’m remaining SILENT. Well long story short they got me for refusal. They get a search warrant and draw blood. Keep in mind now. This gas been going on for about a hour and a half too two hours. I even say in the video. I guarantee you I’m gonna fail now. I should have just blown in your machine. Well the blood came back at a .62. So I got charged. Now at court never once did my LAWYER bring up my rights. We actually caught the police officer lieing on the stand. But once again he never said anything about that. I guess the biggest thing was when the blood antilist was on the stand. He just came out and said he did something different with my blood. And it was his first time doing the procedure. But when it was finally ready for us to argue our case. My LAWYER said he has nothing further. I’m thinking to myself (What.) As all the jury’s left he tells me. That I think we have a good chance. Well I got found guilty. Also keep in mind I told my LAWYER at jury trial that 2 of the jury’s where sleeping throughout everything. But once again he never said anything. After some time passed I’m always thinking how can someone be found guilty when i know for a fact i wasn’t. After everything was over I still had my breathalyzer. It was time to replace the devices head. Well we come to find out the circuit board for the head replacement was all corroded. So I thought maybe that is sending off mixed signals to the device. I don’t know for sure or not. But to be honest this case should have been dismissed the first time we went to court. It would have if I had a LAWYER like yourself. I guess after hearing all this. What are my options? Or don’t I have any. I know the next step was supreme court. But a LAWYER wouldn’t look at the case for under 20K. If there is nothing I can do. Then I want this to be known. I want the public to see everything that happened. How police can lie when pulling you over to lieing under oath on the stand and still get away with it. To violating a person’s rights and once again getting away with it thank you for your time.

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