I was charged with a DUI, and greater then .15 percent alcohol percentage. Based on the facts below, is there legal violations?

Asked over 1 year ago - Riverside, CA

I was charged with a DUI and a greater than .15 alcohol percentage. I never received a "traffic enforcement stop" but rather, I had already been stopped on the side of the freeway when the officer approached behind us. Officers report stated that he pulled over because he noticed a passenger leaning out and vomiting from the vehicle and wanted to inquire whether we needed assistance. Officer smelled alcohol and administered field test and breathalyzer. However, after watching the M.V.A.R.S (video/audio) from the patrol vehicle, it is apparent that the officer had approached our vehicle before any passenger had opened their door. It seemed the officer had intentions to pull me over, but because I had already pulled over, a traffic enforcement stop was not necessary.

Attorney answers (3)

  1. Michael Korry Bialys

    Contributor Level 13


    Lawyers agree

    Answered . If you were parked on the side of the freeway the officer is still allowed to do what is called a "wellfare check," to ensure your safety. Remember it is hazardous to be parked on the side of the freeway. If your vehicle is disabled the officer has a duty to make sure that everyone is okay, and that a potentially dangerous situation is averted. If you admitted to driving and told the officer how long you had been there, this makes defending your case more difficult. You need to contact an attorney and consult with him regarding some of the details of your case.

  2. Eric Paul Ganci


    Contributor Level 12


    Lawyers agree

    Answered . Police are able to do that, and DA/DMV will argue they can prove driving and time of driving per Vehicle Code 40300.5 (basically the welfare check law). However, the bigger questions are how the officer breathalyzed you, if you are even a good candidate for breath testing, and how you looked on the video as opposed to the officers report.

    Disclaimer: This was not legal advice, and in no way formed an attorney-client relationship.
  3. Stephen Ross Cohen

    Contributor Level 20


    Lawyers agree

    Answered . Run a motion for lack of probable cause. If you win all the evidence will be surpressed.

    My name is Stephen R. Cohen and I have practiced over 38 years and can be reached at 213-819-1171. I practiced... more

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DUI: An overview

The definition, charges, and penalties for driving under the influence (DUI) vary by state and depend on a number of factors.

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