Written by attorney Patrick Mahaney

Alabama's "Arrest at the Scene" Requirement for Alcohol Involved Accidents

One of the primary duties for uniformed state troopers and local police officers is the investigation and reporting of traffic accidents occurring on public highways. When a trooper arrives on the scene of a traffic accident, and the driver or one of the drivers is apparently intoxicated or under the influence, the Code of Alabama authorizes an investigating officer to "arrest at the scene" of the traffic accident. Obviously, the investigating officer did not see the actual operation of the defendant's vehicle and, under the statutory and procedural law of the state of Alabama, would not be legally authorized to arrest a person for a misdemeanor. It is fundamental law that a misdemeanor offense must occur "in the presence" of the arresting officer to permit a warrantless arrest. The legislature's enactment of the "arrest at the scene" statute provides the investigating officer with the legal process to make a valid warrantless arrest, provided certain requirements are met. An arresting officer is statutorily authorized under the Code of Alabama, 1975, section 32-5-171 to arrest the driver of a motor vehicle involved in a traffic accident if, provided upon personal investigation, the officer has reasonable grounds to believe that the person by violating Section 32-5A-191 contributed to the accident. Thus, the statutory privilege extended to law enforcement officers under 32-5-171 is conditioned upon two separate factors: 1) personal investigation by the arresting officer, and 2) a requirement of contribution on part of the arrested subject. Both requirements must be met in order to make the arrest valid. Section 32-5-171 was enacted in 1971 (Act 1971-1942, effective September 20, 1971) to authorize a warrantless arrest for DWI [now DUI] of a driver at the scene of a traffic collision, upon personal investigation of the law enforcement officer, even though the officer did not observe the arrested subject operate a vehicle. The purpose of this act was to create a statutory exception to the common law misdemeanor arrest rule enacted at Code of Alabama, 1975, section 15-10-3. At common law a warrantless misdemeanor arrest required the personal observation of the offense by the arresting officer. When the Alabama statutes were compiled in the first Code of Alabama in 1852, the common law rule was enacted as statutory law. Code of Alabama, 1975, section 32-5-171 states in full: "A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32-5A-191 contributed to the accident. He may arrest such person without a warrant although he did not personally see the violation." Although the statute is not a model of clarity, it is apparent the statute only authorizes the investigating officer - and not just any other officer who happens to respond to the scene to assist - the authority to make a warrantless arrest. What is clear from the statute is the "personal investigation" must take place prior to the custodial arrest, and the arrest requires "contribution" to the collision on part of the defendant driver. Section 32-5-171 is the procedural mechanism to make a lawful arrest for the substantive crime of DUI where the DUI offense was committed outside the presence or view of the officer, but limited to the specific context of an arrest at the scene of an accident. In other words, 32-5-171 does not create a separate crime of driving under the influence; that crime already exists and is specified in 32-5A-191. Rather, the Alabama Rules of Criminal Procedure in Rule 4.1(a)(iii) set forth in 32-5-171 the proper method or procedure to arrest for DUI "at the scene of an accident," while the substantive elements of the crime of DUI are found in 32-5A-191. Therefore, if confronted with the decision to make an arrest for the offense of DUI when responding to a traffic accident, law enforcement officers must bear in mind the specific requirements stated in 32-5-171 of "personal investigation" by the arresting officer and the requirement of "contribution" to the accident by the driver. Without these two requirements being satisfied, the underlying DUI arrest may be held unlawful.

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