The Fellow Officer Rule and It's Implications in DUI Cases  -  continued

"Necessary Assistance"

In some states, probable cause can be transferred not merely from fellow officers to one another, but also from a person enlisted to aid in an officer under a "necessary assistance" statute. Such statutes allow a police officer making a lawful arrest to command the assistance or aid of any person he deems necessary to make an arrest. The person commanded to aid the officer then has the same authority to arrest as the police officer has. For example, the State was able to salvage its arrest in State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990), by relying on Florida's necessary assistance statute, section 901.18. The officer who stopped Eldridge did so in connection with a theft investigation. While he was stopped, the officer noticed indicia of alcohol intoxication and called in a back-up officer. The first officer attended to the theft issue while the second officer made the arrest for DUI. The Florida appellate court held that the arrest was valid even though the second officer did not witness Eldridge driving, because the second officer had been summoned under the necessary assistance statute and thus had the same authority as the first officer.

However, the doctrine is not without limits. In Riehle v. State, Dept of highway Safety, and motor Vehicles, 684 So. 2d 823 (Fla. 2d DCA 1996), the defendant was stopped by an auxiliary state trooper, whom Florida law specifically provided had no arrest powers. The auxiliary trooper called in a supervisor who performed roadside exercises and then took the defendant into custody for DUI.

The same court decided Eldridge concluded that the arrest here was not valid, specifically distinguished Eldridge on the basis that the original officer who stopped Eldridge had arrest authority that could be transferred to the assisting officer, whereas the auxiliary trooper who stopped Riehle had no arrest authority and thus had nothing to transfer to the assisting officer.

 So in our example above, If officer Smith lacked statutory authority to arrest Defendant, but Officer Jones possessed such authority, the arrest is not saved by the necessary assistance statute even though it was effected by Officer Jones who had arrest authority; Smith, as the summoning officer, had no authority that he could transfer. Thus, where the state relies on such a provision to justify the arrest of your client, the first order of business is to determine whether the officer who sought assistance had authority to make a DUI arrest in the just instance.

Conclusion

Because of the increasing reliance across the country on specialized, DUI-trained officers to flesh out probable cause determinations in DUI cases, the practitioner is well advised to become familiar with the interrelated laws regarding who must possess probable cause information to effectuate a valid DUI arrest. It provides fertile grounds for challenges to any DUI prosecution.