Before a police officer pulls over someone who is driving under the influence, the officer is required to have reasonable suspicion to believe that a crime has been or is being committed, such as driving under the influence or a traffic violation.  The reasonable suspicion standard is a lower threshold than probable cause.  However, the officer will attempt to build additional evidence during the stop to create probable cause for an arrest.  This process may include observations of the officer during the stop, field sobriety testing and/or a portable breath test. What constitutes probable cause to conduct a DUI investigation and an arrest is important in DUI prosecutions and all criminal cases in Pennsylvania.

One common situation that an officer will point to in determining whether probable cause exist to conduct a DUI investigation, obtain a warrant for a search or execute an arrest is flight by the person stopped.  The fact that a person flees when an officer attempts to stop him may not be sufficient alone to constitute probable cause.  The court will consider the totality of the circumstances to determine whether probable cost exists.

In the case of Commonwealth v. Fye, 2006 Pa. Dist. & Cnty. Dec. LEXIS 77 (Pa. C.P. 2006), a driver was convicted of a slew of charges including driving under the influence of alcohol or a controlled substance, general impairment, driving after imbibing alcohol or utilizing drugs, highest rate of alcohol, and driving after imbibing alcohol or utilizing drugs.

The officer first observed the defendant drive an oncoming vehicle directly into his lane of travel, and had to swerve to avoid a head-on collision. The officer then followed the driver when he pulled into a parking lot.  Before the officer could speak to the driver, he fled on foot ignoring the officer’s commands.  After the defendant fled on foot, the officer conducted a search of the driver’s car and found a pipe with marijuana residue in the vehicle.

The prosecutor argued that the mere flight of the driver constituted probably cause to search the driver’s vehicle and conduct a DUI investigation.  The court disagreed.  The court agreed that the officer had probable cause but it was based on flight plus all the other circumstances then known to the officer.  It was not the defendant’s flight, which created probable cause to arrest, but the entirety of his conduct, which was observed by the officer that created probable cause to conduct a DUI investigation.

The point to take from this case is that it is rarely a good idea to flee when stopped by the police whether on foot or in a vehicle.  Flight from an officer will be used as evidence of probable cause to support a DUI investigation, to conduct a search or under certain circumstances to support an arrest.  However, sometimes the officer may not have sufficient evidence to even conduct a DUI investigation but fleeing the scene can tip the weight of the evidence so that the officer has sufficient basis based on the “totality of the circumstances” to conduct a DUI investigation.

For example, if you merely rolled through a stop sign without making a complete stop, this alone might not be sufficient to conduct a DUI investigation.  Flight puts you in danger and only creates more evidence to support further investigation or an arrest by the officer. In Fye, the officer probably had probable cause from the beginning because the intoxicated driver was nearly involved in a head on collision with the police officer.  The issue of probable cause is not nearly so clear cut in most situations so flight only makes matters worse.  It is better to stop politely comply with requests for identification and respectfully decline to answer other questions.  If the officer asks you to conduct field sobriety testing and portable breath testing, you should respectfully decline and ask if you are free to leave.

The officer may still arrest you, but you have not made the officer’s basis for the arrest stronger by fleeing.  Michael V. Worgul, an experienced DUI attorney in Pittsburgh, has handled more than a thousand criminal cases in Pittsburgh and throughout Allegheny County and the State of Pennsylvania.  Mr. Worgul has successfully challenged the officer’s basis for probable cause on many occasions.  An officer’s lack of probable cause may be the basis for exclusion of evidence and even dismissal of Pennsylvania DUI charges.

A Note To You From Attorney Michael Worgul: