Rencher Law Group, P.C.
Areas of Practice

Rencher Law Group, P.C.
1438 Market Street
Dolan Building - 1st Floor
San Francisco, CA 94102
Phone: (415) 877-4486




Rencher Law Group, P.C., Attorneys, San Francisco, CA

DUI False Arrest and Police Misconduct


California Penal Code Section 836.5 gives police officers the right to arrest someone when the officer has “reasonable cause to believe” that the person committed a violation of a statute or ordinance that the officer has the duty to enforce. The statute goes on to confirm the principle of qualified governmental immunity: that there is no civil liability for traditional “common law” causes of action against the police such as false arrest, false imprisonment, malicious prosecution, and use of excessive force, when the officer had reasonable cause to arrest and used reasonable force to effect the arrest or overcome resistance.

In DUI arrests, it is clear that the officer has a duty to enforce the California DUI statute. The question then becomes, did the officer have reasonable cause to arrest?

Reasonable Cause Standard

The reasonable cause standard is the lowest legal standard. To have reasonable cause to arrest, the police officer must observe evidence sufficient to cause a reasonable person to believe that a crime had been committed. The evidence could be anything. For example, in a recent false arrest lawsuit, the officer claimed that the driver had bloodshot, glassy eyes and a green film on his tongue. However, the person had a cold and was chewing minty gum. The driver drove a short distance between bars, but only to pick up family members. The preliminary breathalyzer test yielded a BAC of 0.0. Still the officer arrested the driver and took him to the station for further chemical testing – arrest constitutes damage because it stays on a person’s criminal record. Here, the evidence was not sufficient to constitute reasonable cause to arrest; the police officer should have re-tested the subject with the breathalyzer to yield results at least above 0.0.

Causes of Action: False Arrest / Imprisonment

False arrest – the physical detainment within fixed boundaries and without the possibility of escape – is the chief cause of action that DUI arrestees can use against the arresting officer. This occurs when the arresting officer confines the person in a police car and takes her down to the station for chemical testing, without probable cause to believe she acted unlawfully.

Malicious Prosecution

Malicious prosecution is when: 1.) the police officer initiated a criminal proceeding; 2.) the proceeding ended in the victim's favor; 3.) there was no probable cause to arrest; and 4.) there was malice toward the victim. This charge is more difficult to prove, namely because the victim must not have been convicted.

Use of Excessive Force

Governmental qualified immunity grants a police officer the right to use reasonable force to arrest or overcome resistance. Qualified immunity is broadly defined, the rationale being to prevent the fear of legal liability for resulting injury from inhibiting the police from enforcing the law. Thus, the police are given broad powers – the accused must show clear and convincing evidence of willful, malicious, and injurious acts beyond reasonable force to recover compensation.

In Summary

If a person has not been drinking, yet is pulled over and asked to perform field sobriety tests, the person should comply because it is highly unlikely that a sober person will fail these tests. The person should use the utmost politeness, cooperation, and respect with the police officer, yet not be suspiciously friendly, talkative, or personal. The person must provide any requested identification information. If the officer then states that the person has not passed the tests, the person should comply with the arrest, and post bail immediately after being booked. The suspect should not resist arrest or act aggressively or belligerently, as these are separate offenses. Next, the wrongfully arrested person should hire an attorney to seek money damages for the false arrest, use of excessive force, or other causes of action described above.

RLG attorneys are experienced in all aspects of DUI law. If you have been arrested for DUI, a criminal defense attorney at RLG will fight to protect your rights. We serve the entire Bay Area.

For outstanding legal representation, please contact RLG for a free consultation: (415) 877-4486







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