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Weaving, Lane straddling, VC 21658
One of the more common reasons people get pulled over for a DUI is because the officer claims he/she witnessed the vehicle weaving or lane straddling. Everyone, sober or not, weaves as they are driving down the road, and the court recognizes that. United States v. Lyons (10th Cir. 1993) 7 F.3d 973, 976: “If failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”
So what constitutes weaving sufficient for someone to be pulled over on a suspicion of DUI? Many decisions have covered that.
The most cited case is People v. Perez (1985) 175 Cal.App.3d Supp. 8. In that case the driver was exhibiting pronounced weaving over a distance of three quarters of a mile. The court concluded that “ . . . the officer’s actions were proper and . . . that pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” The driving in Perez was “pronounced” weaving— from side to side within the lane—continuously for three-quarters of a mile. And the observation was made by an officer with “extensive” training and experience and who also instructed other officers on DUI enforcement. Another often cited case, People v. Bracken (2000) 83 Cal.App.4th Supp.1, is a case that deals with similar issues where the stop was justified based upon weaving within the lane that occurred for one-half mile and where the officer had previously qualified as an expert in cases involving driving under the influence.
So how does this play out and how much does the “extensive” training impact the legality of the stop?
California courts have addressed this through the Arburn v. DMV decision, (2007) 151 Cal.App.4th 1480. This is a more recent case than Perez and it covers most of the main points mentioned above. In the Arburn case the driver almost hit a curb, however the court reviewed the Perez case along with a few others: (People v. Bracken (2000) 83 Cal.App.4th Supp. 1; People v. Russell (2000) 81 Cal.App.4th 96; and People v. Perkins (1981) 126 Cal.App.3d Supp. 12). The Arburn court essentially said that the weaving can occur for as little as a block and it could alert the officer that something is wrong. The court also said the officer’s experience is only minimally relevant to the legitimacy of a stop.
While California courts do not have to follow federal courts, they do have to follow the United States Supreme court. The lower courts can be used to persuade the court if it is a close call. The most prominent Supreme Court case is: Whren v. United States, 517 U.S. 806. An officer must see an objective violation of the law, or have reasonable suspicion that a crime is about to occur or has occurred, before an officer may detain an individual. In Whren, the United States Supreme Court held that a police officer’s subjective intentions do not defeat the lawfulness of a detention based upon probable cause to believe that a motorist has violated a traffic code. An officer’s subjective opinion that an individual’s driving is unusual, does not justify a detention in the absence of objective probable cause that there was a violation of the vehicle code.
An example of this was decided in Taylor v. Department of Motor Vehicles, (1995) 36 Cal. App. 4th 812. In Taylor, the Court held that the actions of a seventeen-year-old who was driving a pickup truck at midnight on a Friday, who cut sharply behind a police officer while yelling from the vehicle, did not provide objective justification for a detention. The Court noted that: A sharp but entirely legal turn and a yell from within a vehicle do not indicate that the driver is under the influence.
One of the best lower federal court cases is: U.S. v. Colin (9th Cir.2002) 314 F.3d 439 In this case the stop was deemed unlawful. The was neither “pronounced weaving,” nor a “weave for a ‘substantial distance.’” The driver touched the right fog line and the center yellow line each for about 10 seconds after changing lanes. The officer said the reason for pulling the vehicle over was California Vehicle Code §21658(a), but the Colin Court said: “touching a dividing line, even if a small portion of the body of the car veers into a neighboring lane, satisfies the statute’s requirement that a driver drive as “nearly as practical entirely within a single lane.”
As you can see, the case law can be confusing and fine lines are drawn on this seemingly simple issue. Add the fact that CHP uses dash cams but often testifies that the weaving happened prior to the camera recording, it is imperative that you hire an experienced DUI attorney to defend your rights.