999 Fifth Avenue, Suite 350, San Rafael, CA 94901

Call Today for Your Free Consultation
Call Us 415-729-7300

San Francisco DUI Lawyer - Prolonged Detention

Posted on in

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of "California Drunk Driving Law".

In this series of blog postings I am going to discuss search and seizure issues related to drunk driving cases. However, the totality of search and seizure law is perhaps as voluminous and complicated as drunk driving (DUI) law.

DETENTION AND ARREST | Seizure of a Person | Prolonged Detention

In 1979, the California Supreme Court held that when a police officer has (a) stopped a motorist for a traffic violation for which the latter cannot be taken into custody and (b) has already detained the motorist for the time necessary to perform his functions arising from the alleged violation, he cannot thereafter lawfully detain him for an additional period of time solely for the purpose of conducting a warrant check. People v. McGaughran (1979) 25 Cal.3d 577.

However, because Atwater v. City of Lago Vista (2001) 532 U.S. 318, allows law enforcement officers to effect a custodial arrest for fine-only traffic offenses, and because the violation of state arrest procedures does not implicate the Fourth Amendment (see Virginia v. Moore (2008) 533 U.S. 164 and People v. McKay (2002) 27 Cal.4th 601, 614), the police may now detain a suspected traffic-infraction violator for as long as they want to for the purpose of separate investigations according to People v. Branner (2009) 173 Cal.App.4th 136. In Branner, the defendant was under surveillance for drug activities and was pretextually detained for defective lighting equipment on his jeep while police ran records checks on him and his passengers and asked them questions about their probation and parole status. Defendant was never cited for the equipment violations but was ultimately arrested for not registering his address with the police in violation of H&S ยง11590. The detention prior to formal arrest was only about 15 minutes.

Although McGaughran is a California Supreme Court case, the Branner Court determined it can no longer be relied upon as good law where there are grounds for a de facto arrest from the outset. A de facto arrest occurs whenever a detention is unreasonably prolonged. People v. Gomez (2004) 117 Cal.App. 531, 538.

The holding casts a dark shadow on the viability of a string of other California cases, including Williams v. Superior Court (1985) 168 Cal.App.3d 349 (holding that a warrant check and search in lieu of a citation, within the same amount of time as citation would have taken, is still illegal), and People v. Lusardi (1991) 228 Cal.App.3d Supp. 1 (Court invalidated a traffic detention that was unnecessarily prolonged by the time it took to ask for consent to search before writing the citation). People v. Galindo (1991) 229 Cal.App.3d 1529, reached the opposite result of Lusardi where the request to search was made after the citation was written and as the defendant was walking back to his car.

In Aureguy v. Tiburon (1993) 825 F.Supp. 902, at fn 1, the U.S. District Court suggested that a traffic detention may be prolonged for the purpose of a routine warrant check without cause to believe there may be a warrant.

In People v. Bouser (1994) 26 Cal.App.4th 1280, a five-minute delay while waiting for a warrant check was OK because the defendant was free to leave. The cop had said, "Hey, how you doing? You mind if we talk?" to a drug dealer in an alley. The defendant had waited around voluntarily without instructions.


In Atwater, the officer promptly arrested and booked an individual for violating a seatbelt law (a fine-only offense). The Atwater Court held this does not violate the Fourth Amendment because there was probable cause to believe the offense had indeed been committed, but it did not hold that a person may be lawfully detained indefinitely for an infraction while the police pursue an unrelated matter as opposed to formally arresting and booking the individual. The Branner Court's holding is factually limited to a relatively short detention period.

Back to Top