Legal Question in DUI Law in California

Re: Illegal Stop by CHP

To break the issues down:

1. There is no legally-mandated minimum distance within which the obervations must be made; it is simply a question of credibility (the less opportunity for observation, of course, the less credible the conclusions).

2. Evasion of roadblocks as probable cause to stop: I am unaware of a higher CALIFORNIA appellate court ruling, but there have been mixed results in other states. In Oregon, for example, the Supreme Court there said evasion is NOT sufficient. Pooler v. MVD, 755 P.2d 701 (1988). In Arkansas, on the other hand, an appellate court concluded it is. Coffman v. State, 759 S.W.2d 573 (1988).

See Chapter 11.1.1 ("Evasion of Sobriety Checkpoints") in my book "Drunk Driving Defense, 5th edition" (Aspen Law and Business; 800-638-8437).

3. "Driving erratically" is a common claim of the police and is, without a more specific description, meaningless. Peg him down to the specifics, and compare that with the lack of such specific observations in his report -- and query how he can now remember months later these details when they are not in the report to refresh his memory.

4. Having a .10% BAC (blood-alcohol concentration) does not mean you were under the influence, though it can be evidence of it. Almost all states have two separate laws and they may charge you with both: driving under the influence and driving with .08% (or .10% in some states) BAC.

Note that a person with over .08/.10% BAC may have tolerance to alcohol, thus not under the influence of alcohol. Note also that having, for example, .11% BAC when tested does not mean that you have .11% at the time of driving -- the BAC may well have risen.

I hope this has been of assistance and wish you the best of luck.

Lawrence Taylor

http://www.DUIcenter.com