Must an officer of the law have a warrant to come to your home and arrest you for dui if he never saw you driving

Asked almost 5 years ago - Chesapeake, VA

if one has an altercation with an employee of a restaurant, and that employee calls the police tells them the the other person left driving under the influence, must the office have a warrant to go to the person's home and give them a sobriety test and have the ability to arrest them for DUI?

Additional information

that is why the officer called my husband out to the street and would not step foot on our property acting as if he were there just to question the restaurant incident and immediately beginning the process of a sobriety test. this happening about an hour after he had left the restaurant, the judge stated there was no way a man could drink 3 or 4 beers during the hour he was home and therefore was convicted for dui and for refusal. what a shame....especially since he REALLY was not drinking until he came home upset about the altercation occured and the restaurant worked testified he had not even had a drink.

Attorney answers (3)

  1. Timothy Kevin Wilson


    Contributor Level 15

    Answered . Yes. Virginia law prohibits an officer from arresting a person for DUI without a warrant if the officer did not observe the person driving. This is referred to as the Warrantless Misdemeanor Arrest Rule, which essentially says that officers can arrest suspects, without a warrant, for misdemeanor offenses committed in the presence of the officer. There are exceptions to this general rule, but none of them seem to apply to your situation. Therefore, assuming none of the exceptions apply, if an officer comes to your house to arrest your for a DUI which was not committed in the presence of the officer, the arrest is illegal.

    This does not mean that the case is automatically thrown out, but it should be helpful in mounting a defense to the DUI charge. I recently got a "not guilty" verdict in a case where the client was essentially pulled over by an off-duty officer and then arrested by a different officer. Like in the facts of the question presented, the arresting officer never saw the client drive and that was an important fact during the trial.

    T. Kevin Wilson, Esq.
    The Wilson Law Firm
    DUI & Criminal Defense…When Results Matter
    9300 Grant Avenue
    Suite 301
    Manassas, Virginia 20110

    Telephone 703-361-6100
    Telephone 888-DUI-LWYR
    Facsimile 703-365-7988


    For a FREE copy of the Virginia DUI / DWI Arrest Survival Guide: The Guilt Myth, a consumer guide written by a nationally recognized Virginia DUI Defense Lawyer, visit

  2. John Lawrence Buckley

    Contributor Level 16

    Answered . A person's home is their castle. This is an oversimplified but true characterization of the 4th amendment law. Law enforcement can only enter your home under certain circumstances including your consent. Absent your consent, they need a warrant or a narrow set of exceptions.

    These scenarios are very fact specific and you need the advise of local counsel who can properly advise you of your rights and strategies for your defense. There are a number of qualified DUI defense attorneys listed on this website. Call one for a consultation.

    Best of luck.

  3. Edward Jerome Blum

    Contributor Level 16

    Answered . Yes. This is definitely something you want to fight. Both whether the witnesses bias due to the fight taints their testimony that you were driving DUI and the officer's entering your home without a warrant or consent.

    Edward J. Blum

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