Unlawful DUI Arrests: Facts Learned After Stop & “Good Faith” Mistake of Law Police Errors
These two California DMV DUI Manual sections give lawyers an idea of how misinformed Hearing Officers may be, if they rely on their Administrative Per Se Manual for purported law. Truth is, San Diego DUI lawyers urge, some of the material may be partly correct but fails to contain all of related law and/or gives limited or poor illustrations. A reasonable approach would be to separate the stated issues and wording from the real facts and California drunk driving law.
In suppressing DUI evidence, California criminal defense attorneys correctly argue to Judges that it is what is going through the police officer’s mind at the time of the stop that is important in determining the lawfulness of a stop/arrest; it’s not what the drunk driving cop learns “after”!
Just as there’s no after-acquired facts exception to the Evidence Code, there’s no “just to explain the officer’s subsequent conduct” exception: “Subjective intentions [of California DUI police] play no role in … Fourth Amendment analysis.” Whren v. United States (1996) 517 U.S. 806, 813. Only “detention” standards apply in vehicular traffic stops and subsequent searches. “The decision to stop an automobile [without a warrant] is reasonable where the police have probable cause to believe a traffic violation has occurred.” Whren, supra, fn.1, @ 810, accord Maryland v. Wilson (1997) 519 U.S. 408, 413 [traffic stop means there is “probable cause to believe that the driver has committed a minor vehicle offense….”]
DMV wraps up its Section 12.085 “Search and Seizure Laws & APS Hearings” section with the following “reasonable cause for an arrest for DUI” language in its APS issues. The confusion must be its questionable use at the end of 12.089 with the words “probable cause.”
Section 12.151 [Stipulation to Issues] certainly suggests some DMV confusion:
“There is a close relation between the reasonable cause issue and the lawful arrest issue.
It would be unusual to accept a stipulation to only one of these issues since it would
make the remaining issue difficult to determine factually.”
Note that erratic driving must be of the kind of probable cause amounting to a traffic violation or minor vehicle offense as there are cases (Perez, Colin, e.g.) which hold that certain weaving does not amount to probable cause to stop. Here’s what DMV states in its Manual:
“12.089 Acquiring Facts After Stop
An officer may stop a driver for questioning without reasonable cause for an arrest for driving under the influence. The officer may accumulate facts needed to arrest for DUI after the driver is stopped. For example, erratic driving provides reasonable cause to make a stop and investigate. It is not enough to support an arrest for driving under the influence; however, when the officer stops the driver, they may observe evidence of objective symptoms of intoxication. These facts combined with the observed unsafe driving provide reasonable cause to arrest the person for drunk driving. If the detained driver does not appear intoxicated and passes the field sobriety tests, there is no probable cause to arrest for driving under the influence. Nonetheless, the facts may still support an arrest for another violation, such as reckless driving.”
In the next Manual section, similarly, San Diego DUI attorneys know that a good faith but “erroneous” mistake of law the drunk driving arresting officer makes the California DUI stop invalid. For example, California DUI officer’s subjective belief that the tinted windows law has been violated does not support a detention if he/she is wrong. People v. Butler (1988) 202 Cal.App.3d 602, 606-607
Other police error about the requirements for traffic detentions, good faith or not, do not support the stop and ensuing warrantless evidence collections. People v. White (2003) 107 Cal.App.4th 639, 644; People v. Hernandez (2003) 110 Cal.App.4th Supp. 1, 5; United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1130 [“If an officer simply does not know the law, and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable. The chimera created by his imaginings cannot be used against the driver.”]
A suspicion based on such a mistaken view of the law cannot be the reasonable suspicion required for the Fourth Amendment, because “the legal justification [for a traffic stop] must be objectively grounded.” In other words, if an officer makes a traffic stop
based on a mistake of law, the stop violates the Fourth Amendment. [United States v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1096]
In United States v. King, 244 F.3d 736, 741-42 (9th Cir. 2001), a mistaken belief that a driver’s conduct violated the law could not support a reasonable suspicion that a crime had been committed, even if the officer otherwise behaved reasonably.
Yet DMV’s Manual cites just one (old 1988) case and states this:
“12.090 Error Made in Good Faith by the Peace Officer
If an officer stops a driver for a suspected violation of law, the stop may be valid if it is subsequently determined the officer, in good faith, made a mistake of fact, when in actuality, no such violation occurred.
In People v. Glick, 1988 203 Cal.App.3d 796 the court determined the “stop was brief and limited to the purpose of verifying the vehicle’s registration.” The officer’s mistaken suspicion of a violation was not fatal. The court found that officers will be able to keep unsafe and stolen vehicles off the highways and determined that a “strong governmental interest outweighs the minimal intrusion into a driver’s Fourth Amendment rights occasioned by a stop.”
[Text from California DMV Administrative Per Se (APS) Hearings (Chapter 12) Driver Safety Manual, page 12-42]
The Editor notes that a minority of California DMV Hearing Officers do their own research and/or respectfully honor the correct legal points and authorities presented by San Diego DUI / DMV attorneys in following the law v. following the DMV Manual.