Interviewer: It sounds like there are not many points to argue. What defenses can you create?
Steve: That is another good question. Their burden is lower. They need to prove these three issues by preponderance of the evidence, which is the lower standard of proof.
They do not always remember they have the burden. With that said, I try to remind them on a regular basis that they do. Still, sometimes it is not always helpful.
So I try to break the issues down. On the first issue, I try to determine: Did the officer have probable cause to believe the person was driving under the influence of alcohol? The first component to that is the stop. Therefore, I try to analyze the morality or lawfulness of the traffic stop.
I analyze it under a Supreme Court decision called Terry v. Ohio. This is the seminal case by the United States Supreme Court that essentially says you do not need a higher probable cause standard to pull somebody over. You do not need that.
Still, a stop is still a seizure under the Fourth Amendment. You are entitled to Fourth Amendment protections, but it is a lower standard. Still, it is a reasonable, articulable suspicion of violation of a vehicle code, of criminal activities that happened or are going to happen.
So the first thing I do is I look at the reason for the stop. Recently, I had a woman come in with her papers. When I reviewed it, the officer cited a traffic vehicle code section that talked about traffic signals in an intersection. This includes what you do when there is a red arrow; when the arrow turns green, etc.
This is what happened to her. She was trying to get on the 101 freeway and go northbound. There was a lot of construction. She realized if she entered the freeway to her left, the ramp takes you southbound. She did not want to do that.
However, she had not stopped at the intersection yet because there was a red directional signal. The red arrow, the directional signal, was actually solid red. She was still proceeding to the intersection. She had not stopped, and she realized she was in the wrong lane.
She did not want to go south. So she changed lanes to the right when she believed it was safe to do so. She was able to proceed straight and then make her way to the correct entrance ramp to the freeway. Then, she got pulled over.
The officer cited the vehicle code section, which is the wrong vehicle code section. It has nothing to do with that particular set of circumstances. Quite frankly, I do not think she did anything wrong. She had not come to the stop yet, so she was not really in that lane of traffic permanently. Her vehicle was still traveling.
I am not sure if I am going to be doing this case or not. However, as I discussed with the prospective client, I would argue: number one, he cited the wrong vehicle code section. Number two, she did not violate any vehicle code section at all. She did the right thing.
The officer probably felt she made a last minute decision to get out of that lane and proceed in another direction. Again, I do not think that is a violation of a vehicle code. That is what I would say in that particular instance. I would argue the officer did not have a basis to pull her over in the first place.
© 2012 - 2013 Law Offices Of Steve Taxman. All rights reserved.