Hollywood, DUI Dismissed at Arraignment, 0.08% BAC
Our client was returning home on the northbound 101 Freeway at approximately 1:00 a.m. after a late dinner and drinks in Hollywood. It was early Friday morning.
The officer stopped our client, who was driving alone. The officer allegedly detected the odor of alcohol, so he asked our client to perform a series of field sobriety tests (FST’s). According to the officer, our client failed each of these tests. She was wearing high heels and a miniskirt. She asked to do the FST’s barefoot on the nearby sidewalk, but the officer told her no.
The officer then asked our client to provide a breath sample, which our client did. Her BAC was 0.08%. The officer then arrested our client.
Our client was devastated. Age 27, with no criminal history, and a bright future ahead of her as an accountant, she called our office.Summary: DUI Dismissed at Arraignment after City Prosecutor Agrees That Single Lane Change Insufficient Probable Cause to Make Traffic Stop, Metro Courthouse.
Greg Hill met with the client and listened to the facts. He also explained the law, specifically People v. Carmona (2011) 195 Cal.App.4th 1385, 124 Cal. Rptr. 3d 819, which held that an officer’s observation of a driver making a lane change without use of a turn signal is only a Vehicle Code violation if the lane change affects the safety of another driver. The officer must observe a Vehicle Code violation of some sort to initiate a traffic stop.
In Carmona, a Fullerton police officer stopped a driver for allegedly making a turn without the use of his turn signal, in violation of Vehicle Code § 22108, which requires a driver to activate the turn signal for 100 feet prior to making a lane change or turn. The driver, Mr. Carmona was on parole, so the officer performed a search of the vehicle and found methamphetamine and other drugs. The officer than arrested Carmona.
Carmona was then charged with possession of a controlled substance. He moved to suppress all evidence seized, arguing that the traffic stop was improper because he did not violate any Vehicle Code. The trial court denied the motion, but Carmona appealed. The appellate court reversed, agreeing with Carmona that the traffic stop was improper because the arresting officer did not see Carmona’s lane change create an unsafe situation by affecting the safety of another driver.
Prior to the arraignment of our client, our office had won at the DMV Hearing, based on this exact argument involving Carmona because the CHP report of the client’s driving stated that the freeway was nearly empty and did not describe our client’s lane change as affecting any other driver. At the arraignment, the prosecutor asked Greg what he wanted to do with the case and Greg responded, “dismiss the case.” Greg then discussed the facts of the case and Carmona, which, surprisingly, caused the prosecutor to agree and to decide not to proceed. The case was then dismissed.
The client was extremely happy with this outcome.
It merits mention that it takes a special kind of prosecutor to do this. Many prosecutors would not have the confidence to do this and would refuse to agree with a defense attorney like this prosecutor here did. Many prosecutors would understand the issue, but would respond that such an argument is for the judge to dismiss the case on a motion to suppress evidence. If such a motion is then filed, as we have done so many times, the police officer must testify in court about his traffic stop and often, on the stand, testifies to additional observations that he never wrote down on the police report, which give the judge sufficient reason to deny the motion.
For more information about probable cause for a traffic stop, click on the following articles:
Watch our video about DUI by clicking here.
- Drug Evidence Suppressed When Police Improperly Stop Vehicle
- Traffic Stop Ruled Improper and Evidence Seized by Police Suppressed When Officer Lacked Reasonable Suspicion to Stop Driver
- Good Faith Exception to Officer’s Execution of an Improper Search Warrant Does Not Have Similar Application to an Improper Traffic Stop