Although one may be arrested in public without a warrant with some exceptions, a warrantless home arrest must pass a higher degree of scrutiny. A warrantless arrest is limited to situations where there is consent to enter the home, or where exigent circumstances exist. A simple lack of response from within the home without other information does not qualify as consent or create exigent circumstances.
Some states allow in-home arrests without a warrant when the officers have probable cause for arrest and exigent circumstances are present. Exigent circumstances are found present when there is 1) the likelihood that relevant evidence would be lost if too much time were taken before determining the DUI defendant's blood alcohol level; 2) the possibility that the DUI defendant would drink more alcohol in the interim between driving and blood alcohol testing thereby rendering any subsequent test worthless; 3) the possibility that the DUI defendant would reenter his/her car, creating grave danger to the public; and 4) the gravity of the DUI offense.
When a suspect commits a misdemeanor in police presence, police may follow the suspect from a public place into a private home to affect an arrest without a warrant. The rationale is that one who is being pursued shall not be allowed to escape arrest simply because he beat his pursuers to a private place.
By contrast, it has been held that a nonconsensual home entry from DUI drinking and driving was unlawful when 1) the offense was not a felony, 2) no hot pursuit was in progress and 3) no further danger to the public existed because the driver was no longer on the road driving. In the case of an in-home arrest without a warrant in which the officers gained entry into a suspect's home by climbing through a window to question him in the investigation of a DUI offense, the entry was found to be unlawful and the subsequent arrest held invalid.
The private rights of suspected DUI offenders have not been entirely overlooked and limitations on in-home arrests without a warrant for violation of the DUI statute do exist. To justify an in-home warrantless arrest for a DUI offense, there must be: 1) consent to enter the home or the presence of exigent circumstances, such as hot pursuit, 2) the need to prevent flight of the suspect, 3) protection of public safety, 4) severity of the underlying offense, or 4) the need to prevent destruction of evidence.