Sunday, September 15, 2013

Can a federal law enforcement agent detain for a DUI?

Imagine you're driving close to the Canadian border.  You maybe had a glass of wine or two at dinner.  A border agent traveling to work happens to come across your vehicle.  Decides you're a suspected drunk and driver and decides to try and pull you over.  The border agent is in full uniform, and is driving a department of homeland security vehicle.  Because Washington State borders Canada any citizen of our State could be in this position.  What would happen?

Well this issue arose in Vermont involving a similar set of facts.  The case began on June 7, when a uniformed Customs and Border Protection officer on his way to work at the border noticed a car parked by the side of the road in Newport with the driver apparently asleep inside. The driver told the agent she was not in distress and didn’t need help.  Yet the agent took her keys and demanded identification. The officer then called a Border Patrol agent, who arrived a short time later. The two agents kept Leary there until a state trooper arrived and arrested her on a DUI charge.  Ultimately the DUI charge was dismissed the charge because the agents did not have the grounds to detain the driver and there was no suspicion the driver had committed a federal crime.

As a DUI lawyer in Seattle this issue can arise at any time.  So it is interesting to think about.  If I was a Prosecutor and I was arguing a detention was lawful involving a border agent.  I would probably try and argue the agent wasn't acting as a state actor or anything and it was a citizens arrest.  To arrest someone as a citizen the State only needs to establish there was some kind of breach of the peace.  You see this often in citizens who exercise this authority for suspected DUI cases.  Usually the problem overcoming this is establishing what a breach of the peace is.  Typically the driving amounts to little more than a traffic infraction, so it is often difficult to do.  

The other issue is some border agent or federal agents are given broad state powers to exercise state law.  Customs and border agents regularly enforce state laws along the border.  And in remote areas since they are often the first to arrive or assist then they have the authority to act under State laws.  

About the author: Matthew Leyba is a DUI Lawyer in Seattle.  His practice focuses on representing those charged with DUI and other traffic related offenses.  If you have been arrested for a DUI in Seattle or anywhere in Western Washington contact him immediately to ensure your constitutional rights are protected 


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