January 16, 2015

The Basics- Probable Cause For Being Pulled Over

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Drinking and driving- at its basic level, we've all done it. The point it becomes illegal is when a driver's BAC is above .08%, or "his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances" (CALCRIM 2110, Jury instruction).

On a Friday, Saturday, or holiday night/season, police are looking for excuses to stop people to see if they have been drinking. The best way to avoid being pulled over is to not give an officer justification, or probable cause, to stop you. The state does not need to prove "bad driving" to charge a DUI- only driving, which in California is any volitional movement of a vehicle. This section may also help remind drivers of what officers are looking for in general, and how either more cautious driving, or correcting minor vehicle code violations, will help unwanted law enforcement contact.


1) Make sure that your car has no visible vehicle code violations. A DUI investigation begins every time an officer pulls over a vehicle for any vehicle code violation. Make sure all the lights work on your car (or the car you drive), including the license plate light. Don't drive the car if it has a large crack in the windshield, has illegal window tinting, or the rearview window is obstructed. Also, don't drive a car that has expired registration. Stay home, take a cab, or offer to be the sober driver in another car.

2) When you get behind the wheel, put your seatbelt on. Countless DUIs have been initiated for nothing less than that. Besides, someone else might hit you and sometimes defensive driving isn't enough.

3) When driving, don't commit any moving violations. Don't speed- alcohol reduces inhibitions and increases risk taking behavior. Don't do a "rolling stop," shift lanes without signaling, make a right turn on red in an unfamiliar intersection, enter an HOV lane crossing a double yellow, etc. I've seen drivers go the wrong way on one-way streets in confusing downtown San Diego- it doesn't matter. If confused or lost, stop the car.

4) Don't create distractions for yourself. First, leave your phone alone. A cell phone to the ear is probable cause (CA VC 23123), and dangerous. If you get a call you need to take, pull over. Turn the radio down. Alcohol affects "divided attention"- doing two things at once. Playing with your radio, checking messages, etc. divides your attention into three, four, or more tasks which increases the likelihood of either getting into an accident, or doing something a cop will pull you over for. Concentrate on driving- even if you don't feel impaired, you might be.

5) Reduce external distractions. This includes flirting with the next car, or getting into a "road rage" incident. Do not aggressively interact with another vehicle. You never know who another driver is, and it could be an off duty cop with a vigilante complex. San Diego Charger Steve Foley had his career ended by an off duty police officer that shot him. Albeit an extreme example, but anyone can call your car in. I prosecuted a case where an off-duty firefighter called in a road rage incident. The jury found him guilty of a marijuana DUI.

6) Choose your route to get home. Avoid avenues that are heavily traveled by people, or that are from bar and restaurant hotspots. Police know this, and will patrol those areas, or set up checkpoints at popular routes. And concentrate on getting home, not getting a burrito or cheese fries. Seriously consider the benefits and risks of a cross-town liaison.

7) If you have been drinking, stay away from the car. That includes driving it across the street for better parking, or going one block away to show your friend your motorcycle. I've seen DUIs in both circumstances. Again, in California, you can get a DUI for ANY volitional movement of the car. In Vermont, you can get arrested for a DUI for opening the car windows (V.S.A. 1201(a)(2), State v. Kelton, 1998).

8) Lastly, if a designated drinker, don't drive. If your designated driver makes a mistake and drinks, don't step up to the plate. People with a high tolerance are more likely to get a DUI, as they are the ones others rely on in a clutch situation. Alcohol affects are felt mentally, including decision making, before they are felt physically. Ironically, this includes your ability to assess your own impairment. Be a hero and pay for a cab, but don't risk a DUI.

Keep in mind that you are not immune. Socio-economic status has nothing to do with who gets a DUI. This includes you. I've defended both millionaires and single mothers on public assistance.

Overall, many people have a drink or two with dinner and handle it responsibly. The bigger point is not to put yourself in a position to justify your responsible drinking to a police officer, a judge, or a jury.

Next I will discuss what to do if pulled for suspicion of driving under the influence. Please post any questions or comments you may have, or contact me directly. Remember, the above is for general informational purposes and not specific legal advice. Finally, nothing here, or posted elsewhere on this page, establishes an attorney/client relationship.



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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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