Commerce DMV Win on Improper Traffic Stop, 0.098% BAC
He had limited his alcohol intake at the bar because he knew it would affect him quite a bit due to his fatigue. In fact, after he left the bar, he simply went to his Prius and napped for 90 minutes before heading east on the 10 Freeway toward Downtown Los Angeles and then out the 60 Freeway toward Corona.
It was about 3:30 a.m., in other words, when he began his trek from Santa Monica.
As he was heading east from Downtown L.A. on the 60, our client still felt very tired. A CHP officer behind him allegedly noticed our client’s car cross partly into the lane to the right and then back into its lane, only to then cross partly into the center median area. This was just before the Whittier Boulevard offramp and so when the CHP officer activated his overhead lights, our client pulled off the 60 at Lorena Street / Whittier Boulevard exit
There was no other alleged impairment observed. Our client was cooperative and respectful to the CHP officer, but did concede that he had drank one glass of wine with friends in Santa Monica earlier in the evening. However, it was now close to 4:00 a.m.
The officer had our client submit to a preliminary alcohol screening (PAS) test. His breath alcohol content, considered a proxy for his blood alcohol content (BAC) and thus his impairment level, was measured at 0.098% and 0.093%. Our client was then arrested and taken to the East Los Angeles CHP station.
After being released in the morning, the client called our office and spoke with Greg Hill. It was the tenth day after his arrest, so Greg Hill’s assistant, Sandra Perez, immediately called the DMV to reserve a DMV hearing for the client and thereby stay the otherwise automatic 120-day suspension of his driving privileges.
- Did the arresting officer have reasonable cause to believe Respondent had been driving a motor vehicle in violation of Vehicle Code § 23152 or 23153?
- Was Respondent placed under lawful arrest? and
- Was Respondent operating a motor vehicle with a blood alcohol level of 0.08% or higher, by weight, in violation of Vehicle Code § 23152(b)?
In this case, the report did not quantify or describe how much our client’s car allegedly crossed into the lane to its right or left. Was it three feet or three inches? Over what distance had this taken place? Greg then argued that in U.S. v. Colin, the U.S. Ninth Circuit Court of Appeals had ruled that a traffic stop was improper when a police officer observed a motorist driving his car so as to have his right tires on the fog line for 400 meters. U.S. v. Colin (2002) 9th Cir. 314 F.3d 439 444-445.
We then argued that a driver does not violate the law, the officer simply cannot make a traffic stop. Whren v. United States (1996) 517 U.S. 806. Even if such driving were deemed unusual, an officer may not make a legal traffic stop simply based upon unusual driving. Taylor v. DMV (1995) 36 Cal.App.4th 812 (the officer’s subjective belief that a suspect’s driving is unusual is insufficient to support a traffic stop).
Therefore, under U.S. Supreme Court precedent, Wong Sun v. United States (1963) 371 U.S. 471, the DMV could not consider any evidence obtained as a result of the traffic stop if it is an illegal stop. Such evidence is the “fruit of a poisonous tree” and subject to the exclusionary rule. Mapp v. Ohio (1961) 367 U.S. 643.
This meant that the DMV could not consider our client’s PAS or breath test results, which were 0.085% BAC.
Apparently, the DMV agreed with our arguments and set aside the suspension of our client’s driver license, which our client was extremely happy with.