Sometimes clients who have been charged with a misdemeanor in Florida ask questions about Florida misdemeanor exceptions, or the list of exceptions that allows a police Officer to make an arrest for a misdemeanor without a warrant. In general, an officer needs a warrant to arrest someone for a misdemeanor; however, there are three situations where exceptions are made:

1. When all of the elements of the misdemeanor were committed in the officer’s presence. In other words, the officer believes they just witnessed someone commit a misdemeanor. For example, if an officer witnesses a driver swerving recklessly all over the road, they may pull the car over. If they find evidence the driver is intoxicated, they may make a warrantless arrest for a misdemeanor DUI charge.
2. When the officer has probable cause for the arrest and the misdemeanor is on the list of statutory exceptions found in Section 901.15 of the Florida statutes. This list is quite long, and new exceptions are added frequently. We’ll discuss some of the exceptions on it later in this article.
3. When the officer has reasonable grounds to believe that the subject has violated probation (either misdemeanor probation or felony probation) or community control in any material respect. This is sometimes called the “COP VOP” exception, found in Section 948.06 of the Florida Statutes.

Although there are too many exceptions to discuss each one in detail, here are some common exceptions on the “probable cause” misdemeanors list of exceptions:

• Battery. 
• Assault on a specified person (usually a police officer, firefighter, EMT, public transit employees, and certain other specified officers, assuming the person is lawfully performing their duties)
• Child abuse or neglect
• Concealed weapon offenses
• Criminal mischief or vandalism
• Disorderly conduct on the premises of a licensed establishment (this typically involves a licensed public lodging business where the officer has probable cause to believe some disorderly contact has endangered the life or safety of a specific person or the public in general)
• Domestic violence (consent of the victim or consideration of the parties’ relationship is not required)
• Drugs (usually possession of 20 grams or less of marijuana)
• Graffiti
• Loitering and prowling
• Order of protection (foreign protection orders)
• Possession of a weapon by a specified person (a person who is subject to a domestic violence injunction)
• Sexual cyberharassment (“revenge porn”)
• Stalking
• Airport trespassing (involving trespassing in restricted areas of the airport with clearly posted signs marking them as such)
• School trespassing
• Traffic crimes (usually involving an accident or DUI)
• Theft
• Vessel safety crimes (typically a violation of a safety zone, security zone, or naval protection zone)
• Violation of domestic violence pretrial release (having violated the conditions of pretrial release, which often involve staying away from the victim)
• Violation of a domestic violence protection order injunction
• Other protective injunction violations
• Racing on highways

Things to Remember

Remember that the officer still needs probable cause to make an arrest, so even if your charge fits into this list, there are many options your Florida Criminal Defense Attorney may be able to use to help you. For instance, often, when we talk to clients, we realize that there may have been errors made during the arrest. In some cases, if proper procedure wasn’t followed and your rights were violated, your attorney may be able to get the charges dismissed.

There are also detailed specifications for each exception. For example, most DUI arrests are warrantless, but there are specific grounds for exception, such as: the officer needs to personally witness every element of the crime (in this case, they need to observe the person driving while intoxicated); or, the officer needs to be investigating a crash and have probable cause to believe the person was driving while intoxicated and this contributed to the accident; or, the combined observations of two or more officers are used to establish probable cause (for example, two officers agree that the defendant smelled of alcohol and was slurring their words). 

In the exception where the officer attests that they personally witnessed all elements of the crime, your Florida criminal defense attorney will ask you questions and examine the evidence to make sure that the officer wasn’t mistaken. If an officer observed you operating a motor vehicle under the influence, were you definitely driving the vehicle, or “in physical control” of it?

Or were you maybe behind the wheel of a parked car? Were you actually able to operate the car? In this case, the officer only needs to believe you could drive the car. In most cases, this means that you were in possession of the keys to the vehicle, that you were in the driver’s seat, and that the car could be driven (in other words, that it was basically in drivable condition). A person standing next to their car is not in physical control of the vehicle. Neither is a person who is behind the wheel, but doesn’t have the car keys.

Important Tips

In the “fellow officer” exception, the other party needs to be an actual law enforcement officer, not an average citizen. If, for example, a security guard or store clerk tells the officer they saw the suspect driving drunkenly down the street, that alone isn’t probable cause for a DUI arrest. However, if the officer tracks down the suspect and also observes them driving recklessly in a way that warrants a traffic stop, then finds them to be intoxicated (through observation, sobriety tests, etc.), then they have probable cause for the arrest.

The “fellow officer” rule also allows an officer to make an arrest outside of their jurisdiction if they observed a crime being committed in their own jurisdiction. So, if an officer witnesses someone driving while intoxicated and pursues that person into an area outside of their jurisdiction, they can legally make an arrest. Sometimes, they may make an arrest in conjunction with an officer who does have jurisdiction in this area.

Keep in mind that just because an officer has probable cause for an arrest does not necessarily mean you have to be convicted at your trial. Even if the arrest was legal, there could be many other problems with evidence or other circumstances in your case that your attorney can use in your defense. For example, if you have a BAL over the legal limit, an officer might have probable cause to arrest you but it could turn out the testing equipment was poorly maintained or malfunctioning at the time, or that the officer conducting the test was not appropriately qualified to do so.

In the situation where an accident has occurred, an officer may make a warrantless arrest if they have probable cause to believe one of the drivers involved was intoxicated and this intoxication contributed to the accident. Usually this relies on the arresting officer’s report, which will include observations of the defendant’s actions and demeanor, and any reasons they had to believe this person was under the influence. This may include things like slurring speech, red eyes, poor coordination, smelling of alcohol or marijuana, etc. Often there is also a blood alcohol test, or BAL, of .08 or higher. Sometimes people tell us they don’t think there’s anything they can do about a misdemeanor DUI charge because their BAL showed they were “over the legal limit.” But again, proving probable cause for an arrest isn’t the same as proving guilt in a courtroom. There are many ways the results of a BAL may be refuted at trial or even before a trial.

Traffic crashes in general allow an officer to make a warrantless arrest if they have reason to believe the person committed a traffic crime under chapters 316 or 322 in Florida Statutes. This is true even if there was no damage caused by the crash, or if the person arrested only damaged their own car (such as by striking a tree and breaking a headlight). There are numerous offenses listed under chapters 316 and 322 that the officer may have probable cause to believe the arrestee committed.

What If I Don’t Think My Warrantless Arrest Meets These Standards?

If you believe you were the victim of a warrantless arrest that doesn’t fit into an exception category, or meet all the requirements for that exception, speak with a Florida criminal defense attorney immediately. If you’re right and the warrantless arrest doesn’t meet the standards of exception, then it was illegal. In this case, your attorney can file a motion to suppress any evidence the police collected as the result of this arrest. In many cases, this may force the prosecution to drop the charges entirely.

Even in situations where an arrest was made with a warrant, there may have been problems with how the warrant was obtained. If you believe there was insufficient grounds for issuing a warrant for your arrest, an experienced Florida criminal defense attorney can help you figure out the best way to proceed with your case.

Each criminal matter is different, and it is based strongly on the circumstances of each case.  Thus, it is important that you discuss your case with a Florida criminal attorney that would listen to your case and analyze your circumstances.

If you need assistance with your misdemeanor case, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.