If officer takes my keys have I been arrested?

In order to arrest you for drunk driving, the police officer must have probable cause that you were drunk driving. Sometimes, however, police conduct can amount to an arrest before the police officer could reach that level of probable cause.

In State v. Finch, the court considered the issue of whether an arrest occurred when a police officer instructed a driver to pull to the side of the road, and removed the keys to the vehicle. The Court of Appeals for Brown County concluded that the officer effectively placed the defendant under arrest when she took the keys to his vehicle. The officer’s testimony indicated that at the time she took the keys, she was satisfied that the driver was intoxicated, and had no intention of permitting him to drive away. 24 Ohio App. 3d at 39. Although the record was silent as to the defendant’s feelings with regard to his ability to leave, the court had little doubt that under the circumstances, a reasonable person would feel that he or she was taken into custody. Id.

It was a good thing for the defendant too that the court found that the arrest took place so soon. Because after the officer took the keys, the suspect got out of the car and promptly fell on the ground, unable to stand because he was so intoxicated.

Had the officer not taken the keys at the start of the encounter with the defendant, the officer would have been able to bring in the Defendant’s falling down as evidence to support probable cause for drunk driving and the Finch case would have gone another way entirely.