Clever lawyering no help in DUI bust |

Clever lawyering no help in DUI bust

Heres a drunken driving case out of our own court district. The driver was observed weaving and crossing over broken single and then double yellow lines at least 10 times, speeding up and slowing down, and otherwise suggesting the driver had been drinking excessively.A deputy sheriff in an unmarked vehicle followed the driver, called for backup and ultimately pulled the driver over.A backup deputy in a patrol car arrived as the alleged drunken driver was exiting the vehicle. The driver failed the roadside sobriety test, failing even to register enough air on the blood-alcohol machine to yield a conclusive reading. The driver was arrested. Alcohol and other things were found under the drivers seat. The driver blew a 0.11 blood alcohol at the station. As we know, the legal limit is 0.08 of alcohol in the blood.

The drunken drivers attorney came up with several clever arguments. First and foremost, the arresting officer, the first deputy sheriff, was in an unmarked vehicle. Also, that the backup deputy who actually made the arrest, did not personally observe the drunk driver on the road (or all over the road). That second defense was readily disposed of by the Court of Appeal, noting that both officers participated in arresting the drunken driver in compliance with California codes and DUI cases.

So if you get pulled over by an officer in an unmarked vehicle, can you get the stop thrown out? We will see. California has many laws prohibiting law enforcement officers from using speed traps to catch speeders. In fact, speed trap laws have been on the books in California since 1923. The Legislature wants traffic officers patrolling the highways to be dressed in distinctive uniforms and in marked vehicles for two reasons: 1) eliminating clandestine methods of traffic enforcement designed to augment local revenues through exorbitant fines and, 2) gaining a deterrence effect by having officers in uniforms and observable marked vehicles. See a cop, you slow down. The speed trap laws apply to officers whose exclusive or main purpose is to enforce traffic laws involving the speed of a vehicle. Such officers must be uniformed and in marked vehicles. The trial judge threw out the arrest because the initial stop was made by a uniformed officer in an unmarked vehicle.

The Court of Appeal in an opinion written by highly regarded Justice Kathleen Butz, formally a Nevada County Superior Court Judge overturned the trial court decision. Justice Butz wrote that the deputy in the unmarked vehicle who made the initial stops exclusive or main purpose was not to enforce traffic laws. On that evening he was exercising supervisory duties, i.e. the deputy was not a traffic officer when he made the stop and in general. Additionally, as Justice Butz wrote, speed-trap laws requiring uniformed officers in marked cars apply to traffic violations involving the speed of a vehicle. Driving under the influence is regulated under different laws.Clever lawyering, but in the end no result.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at or at the firms web site 2008

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