Avoiding a Checkpoint | Bad Stop | Suppression Motion (PC§1538.5)
Dec 11, 2013OUTCOME: Motion Granted - Charges Dismissed
Although I’m not recommending it, it is legal to avoid a DUI Checkpoint, although you may get pulled over anyway, especially if the officer believes you committed a traffic code violation in doing so. ... In this case, my client was driving toward a DUI Checkpoint one evening and because he had been drinking, although feeling below the legal limit, made the decision to do a u-turn over a double-yellow line, then proceeded to drive along the shoulder for about 200 feet before moving back into the lane. In order to meet Constitutional muster, Checkpoints are supposed to be only for “educational” purposes. Therefore, “avoiding a DUI Checkpoint” is not illegal until you enter the cone area set up by law enforcement. Still, if law enforcement observes other driving issues that they allege are evidence of possible impaired driving, it could be enough to justify a warrantless stop under the lower standard of “reasonable suspicion.” The investigator who worked on this case is a former CHP officer and a very smart guy. He visited the scene and did some measurements. As our investigator found, this area is not in a commercial district (or residential), and our argument was it’s legal to make a u-turn over a double-yellow line in this instance. But, we also had to deal with the driving issues after the u-turn – driving on the shoulder area for about 200 feet, and any other “bad” driving issues the officer may introduce in his testimony in court. But, my research led me to the conclusion it was arguably legal to drive on the shoulder in this situation, and I found a vehicle code section that recommended about a 200-foot buffer when merging into traffic in a situation similar to this one. The argument was essentially that my client was being cautious before entering the roadway after making the u-turn. It was also nighttime, with lights coming from the Checkpoint area and not much lighting in the direction my client was driving. I spent a lot of time writing a motion to be filed in court, but first up was the DMV APS hearing. Fortunately, we had a smart and fair DMV Safety hearing officer who took the time to listen to and dig into this technical, somewhat tedious and confusing argument about whether this turn was legal, and we won the hearing. My client’s license suspension was “Set Aside” – no suspension. Next up, I filed a Suppression Motion in Superior Court (PC§1538.5). When the arresting officer got on the stand, I referred him to the numerous photos being projected on the screen that were began at the intersection the report indicated the Checkpoint was situated. The officer told the court the Checkpoint wasn’t anywhere near that intersection. No, it was about 1000 feet east of that intersection. This is unfortunately typical. Through a series of questions, I was able to lock in the fact that established there were no homes or businesses in the area where the officer was now testifying the Checkpoint was located that evening. So, after oral arguments the judge granted our motion, the evidence was suppressed, and my client’s DUI case was dismissed, as well. In his ruling, the judge said, “The actual reason the officer pulled him over is because he avoided a checkpoint (legal here)”, but also agreed the turn was legal, and further agreed with my argument that his driving along the shoulder for almost 200 feet was simply cautious driving, as there was no weaving or other driving issues that could have justified a stop for “reasonable suspicion.”
