California DUI - DMV defense attorney caselaw update

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Filed 5/22/08 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
PAUL DYER,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
C054971
(Super. Ct. No. TCV1113)
APPEAL from a judgment of the Superior Court of Placer
County, Trilla E. Bahrke, Court Commissioner. Reversed.
Edmund G. Brown, Jr., Attorney General, Jacob A.
Appelsmith, Senior Assistant Attorney General, Vincent J.
Scally, Jr., Supervising Deputy Attorney General, and Barbara A.
Morris, Deputy Attorney General, for Defendant and Appellant.
Barry W. Jones for Plaintiff and Respondent.
Following his arrest for driving under the influence of
alcohol (DUI), the Department of Motor Vehicles (DMV) suspended
plaintiff Paul Dyer’s driver’s license under the “administrative
per se” statutes. (See Veh. Code, §§ 13353.2, 13353.3,
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23158.5.)1 After an administrative hearing, the DMV upheld the
suspension.
Dyer then filed a petition for writ of administrative
mandate in superior court. (Veh. Code, § 13559, subd. (a); Code
Civ. Proc., § 1094.5.) Citing Vehicle Code section 40800, the
court granted the petition on the sole ground that the arrest
was unlawful because the officer who pulled Dyer over on
suspicion of DUI was driving an unmarked patrol vehicle.
On this appeal by the DMV, we shall reverse the judgment of
the trial court. There was no evidentiary basis to support a
finding that Vehicle Code section 40800 was violated and even if
there was, the fact that the detaining officer was driving an
unmarked vehicle did not render the subsequent arrest unlawful.
We also reject Dyer’s argument that the arrest was invalid
because another officer, who placed him under arrest, did not
personally observe him driving under the influence. (Pen. Code,
§ 836.)
Because the trial court relied on a legally infirm ground
for granting the petition and failed to conduct an independent
review of the sufficiency of the evidence to support the DMV’s
factual findings, we shall vacate and remand for a new hearing.
1 Undesignated statutory references are to the Vehicle Code in
effect at the time of the February 2006 incident.
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FACTUAL BACKGROUND
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Just after midnight on February 9, 2006, Sergeant Jess
Phariss, who was on uniformed duty in an unmarked Placer County
Sheriff’s Department vehicle, was traveling southbound on state
highway 267. The weather was clear and road conditions were
good.
Sergeant Phariss spotted a Jeep Cherokee that was traveling
southbound at 35 miles per hour in a 55-miles-per-hour zone.
The Jeep sped up to 60 miles per hour as Sergeant Phariss caught
up to it, then slowed to 40. Subsequently, Sergeant Phariss saw
the Jeep cross over both the solid double yellow and/or the
broken single yellow center line at least 10 times. On three of
those occasions, the Jeep crossed completely into the northbound
lane of traffic and then abruptly returned to the southbound
lane.
At 12:24 a.m., Sergeant Phariss requested that Deputy
Robert Griggs proceed towards the location of the Jeep. Phariss
activated his emergency lights and initiated a traffic stop of
the Jeep. Griggs arrived to assist as Phariss approached the
driver, later identified as Dyer, and asked him why he appeared
unable to keep his vehicle within his lane of traffic. Dyer
answered, “Uh . . . I didn’t know I was in the other lane.”
Phariss then asked if there was anything mechanically wrong with
the Jeep, to which Dyer answered negatively. During the
2 Our factual summary is taken from the administrative record in
this case.
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encounter, Sergeant Phariss noticed objective symptoms of
intoxication, including a moderate odor of alcohol on Dyer’s
breath, confusion, unsteady balance, slow, slurred speech, and
red eyes.
Sergeant Phariss directed Dyer to step out of the Jeep and
go to the rear of the vehicle where Deputy Griggs was standing.
Dyer stumbled out of the Jeep and Griggs administered a series
of field sobriety tests, which Dyer performed very poorly.
Griggs then tried to obtain a breath sample. Dyer put his lips
to the mouthpiece several times but did not breathe into it.
Finally, he gave a “quick ‘puff’” of air into the mouthpiece,
which registered an “inconclusive” 0.072 blood-alcohol content
(BAC). Based on Dyer’s poor performance on the sobriety tests
and the observations of Phariss and Griggs, Griggs placed Dyer
under arrest for DUI.
During an inventory search of the Jeep, Sergeant Phariss
found an opened, partially consumed bottle of vodka under the
driver’s front seat, a glass pipe associated with smoking
marijuana and a film canister containing marijuana.
Dyer was transported to the county jail for booking, where
Deputy Griggs administered two Intoxilyzer breath tests at 1:07
a.m., some 30 minutes after the arrest. The two breath samples
each registered 0.11 BAC.
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PROCEDURAL HISTORY
Based on the investigation reports of Deputy Griggs and
Sergeant Phariss and the results of the Intoxilyzer test, the
DMV suspended Dyer’s driver’s license under section 13353.2.
Dyer requested an administrative hearing. After an evidentiary
hearing, the appointed DMV hearing officer found that the
requirements of section 13353.2 had been met, and she upheld the
suspension.
Dyer then filed a petition for writ of mandate in superior
court. (See § 13559, subd. (a).) Although the court’s initial
ruling was to deny the writ, it ultimately reversed itself upon
receipt of supplemental briefing. The trial judge determined
that because Sergeant Phariss was driving an unmarked patrol car
and not wearing a uniform in violation of section 40800, Dyer
was not “lawfully arrested” and therefore the license suspension
was improper. The DMV appeals from the judgment granting the
writ of mandate.
DISCUSSION
I. General Principles
“It is a criminal offense to drive while under the
influence of alcohol or a drug, or to drive with 0.08 percent or
more, by weight, of alcohol in the blood. [Citations.] In
addition to criminal sanctions, the Legislature has established
administrative procedures whereby the DMV may suspend a person’s
driver’s license for driving under the influence or with a
specified blood-alcohol level. [¶] The DMV has long been
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authorized to suspend drivers’ licenses of persons convicted of
specified alcohol related driving offenses, or of persons who
refused to submit to a chemical test to determine their bloodalcohol
level. [Citations.] At issue here is legislation
enacted in 1989, operative July 1, 1990, designed to allow
suspension of drivers’ licenses before conviction for driving
with a blood-alcohol level of [0.08 percent].” (Gikas v. Zolin
(1993) 6 Cal.4th 841, 846 (Gikas), fn. omitted.)
Under the administrative per se statutes, “when a person is
arrested for driving under the influence and is determined to
have a prohibited blood-alcohol level, the arresting officer or
the DMV serves the person with a ‘notice of the order of
suspension.’ (§ 13353.2, subds. (b) & (c), 23158.5, subds. (a)
& (b).) The notice informs the person that his or her driver’s
license will be suspended 45 days from the date of service,
states the reason and statutory grounds for the suspension, and
explains the person’s right to seek an administrative hearing.
(§§ 13353.2, subd. (c), 13353.3, subd. (a).)” (Gikas, supra,
6 Cal.4th at p. 846.) “The DMV automatically reviews the
suspension order to determine, by a preponderance of the
evidence, whether: (1) the arresting officer had reasonable
cause to believe the person was driving in violation of section
23152 or section 23153; (2) the person was placed under arrest;
and (3) the person was driving with 0.08 percent or more, by
weight, of alcohol in the blood. (§ 13557.) The determination
is based upon the officer’s report and any evidence accompanying
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the report. (§ 13557, subd. (a).) The person may request a
hearing with the DMV limited to these issues, at which
additional evidence may be presented.” (Gikas, at pp. 846-847.)
A person whose license suspension is upheld may seek
judicial review of an adverse decision by way of petition for
writ of administrative mandate. (Veh. Code, § 13559, subd. (a);
Code Civ. Proc., § 1094.5.) Review is strictly limited to the
record of the administrative hearing; the trial court may not
consider any other evidence. (§ 13559, subd. (a).) “The
superior court uses its independent judgment to review DMV
hearing decisions which suspend driver’s licenses. [Citation.]
Under this standard of review, the court must independently
weigh the evidence and may make its own findings. [Citation.]
It must set aside the administrative decision where the agency’s
findings are not supported ‘by the weight of the evidence.’
(Code Civ. Proc., § 1094.5, subd. (c).)” (Ocheltree v. Gourley
(2002) 102 Cal.App.4th 1013, 1017 (Ocheltree).)
On appeal, our task ordinarily is limited to ascertaining
whether substantial evidence supports the trial court’s
findings. (Coombs v. Pierce (1991) 1 Cal.App.4th 568, 576
(Coombs).) However, the application of an interpreted statute
to undisputed facts is subject to our independent review.
(Hoschler v. Sacramento City Unified School Dist. (2007)
149 Cal.App.4th 258, 262; see Villalobos v. Zolin (1995)
35 Cal.App.4th 556, 558.)
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II. Lawfulness of the Arrest
The trial court’s decision to annul the DMV suspension
turns exclusively on the lawfulness of Dyer’s arrest. The
following facts are undisputed: (1) Sergeant Phariss was on
uniformed3 patrol in an unmarked sheriff’s department vehicle
when he observed Dyer driving erratically, radically changing
speeds and crossing over the double yellow line multiple times;
(2) Phariss summoned Deputy Griggs to assist him with the
contact; (3) Phariss pulled over Dyer’s vehicle and observed
obvious signs of intoxication; (4) Griggs arrived and
administered field sobriety tests, on which Dyer performed very
poorly; (5) Griggs placed Dyer under arrest for drunk driving
and Phariss recovered an open, partially consumed bottle of
vodka under the driver’s seat; (6) about 30 minutes after the
arrest, Dyer gave two breath samples at the county jail, each of
which registered a BAC reading of 0.11 percent.
Under the administrative per se statutes, in order for the
DMV to validly suspend a person’s driver’s license, “the
underlying arrest must have been lawful.” (Gikas, supra,
6 Cal.4th at p. 847; see also Mercer v. Department of Motor
Vehicles (1991) 53 Cal.3d 753, 760 (Mercer).)
3 The trial court’s finding that Sergeant Phariss was not
wearing a uniform finds no support in the record. Phariss’s
report states unequivocally, “I was on uniformed patrol in an
unmarked Placer County Sheriff’s Department vehicle.” (Italics
added.)
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“A law enforcement officer may legally stop a motorist if
the facts and circumstances known to the officer support a
reasonable suspicion that the driver has violated the Vehicle
Code or some other law.” (People v. Hardacre (2004)
116 Cal.App.4th 1292, 1300 (Hardacre).) No claim is made that
Sergeant Phariss lacked reasonable cause to pull Dyer over on
suspicion of DUI. The pivotal question is whether Dyer’s arrest
was unlawful because Sergeant Phariss was driving in an unmarked
vehicle when he effectuated the traffic stop.
The parties spend a significant portion of their briefs
discussing the question of who has the burden of proof with
respect to whether Sergeant Phariss complied with section 40800.
The parties apparently focused on the final sentence of the
trial court’s decision, which states: “The record was devoid of
any proof that would allow the Court to make a finding that the
Officer was exempt from the requirements of Vehicle Code
[section] 40800.” (Italics added.) However, it is unnecessary
to resolve the burden of proof dispute because, as we shall
show, section 40800 has no relevance to this case.
A. No Evidence That Section 40800 Was Violated
Former section 40800 provided, in relevant part: “Every
traffic officer on duty for the exclusive or main purpose of
enforcing the provisions of Division 10 or 11 of this code
[traffic safety laws] shall wear a full distinctive uniform, and
if the officer while so on duty uses a motor vehicle, it must be
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painted a distinctive color specified by the commissioner.”4
(Stats. 1961, ch. 202, § 2, p. 1212, italics added.)
Section 40800 is included in a chapter of the Vehicle Code
dealing with speed traps. Speed trap laws have been on the
books in California since 1923. (Hardacre, supra,
116 Cal.App.4th at p. 1296; People v. Sullivan (1991)
234 Cal.App.3d 56, 58.) In the words of an early California
Supreme Court case, speed trap laws reflect a legislative
determination that “‘“the presence of traffic officers actually
patrolling the highways dressed in distinctive uniforms and in
plain sight of all travelers on the highways would have a most
salutary effect in securing the observance of each and all of
the regulations imposed upon drivers of vehicles upon the public
highways.”’” (Fleming v. Superior Court (1925) 196 Cal. 344,
349.) Commentators have also suggested that the Legislature was
“motivated by a desire to eliminate clandestine methods of
traffic enforcement designed to augment local revenues through
exorbitant fines.” (Sullivan, supra, 234 Cal.App.3d at p. 58.)
Regardless of its purpose section 40800, by its plain
language, applies only to “traffic officer[s]” whose “exclusive
or main purpose” is to enforce traffic laws on the public
highways. In his report, Sergeant Phariss states only that he
4 Section 40800 was subdivided and rewritten in 2007, after the
proceedings in this case. The amendments did not affect the
substance of the statute at issue here. (See Stats. 2007, ch.
682, § 18.)
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was on “uniformed patrol in an unmarked Placer County Sheriff’s
Department vehicle.” There is no evidence in the administrative
record that Sergeant Phariss was a “traffic officer” or that his
main duties consisted of traffic enforcement. On the contrary,
Phariss appeared to be exercising supervisory duties on the
night in question: Rather than make the arrest himself, he
requested that Deputy Griggs, “the deputy assigned to the King’s
Beach area,” assist him at the scene; and it was Griggs who
conducted the sobriety tests and placed Dyer under formal
arrest.
The trial court was not permitted to grant the writ based
on speculation or assumptions about the nature and scope of
Sergeant Phariss’s duties. Without any evidence in the record
that Phariss was a traffic officer whose exclusive or primary
duty consisted of traffic enforcement, a necessary predicate for
the applicability of section 40800 was lacking.
B. A Section 40800 Violation Does Not Render a Subsequent Arrest Unlawful
Even assuming that Sergeant Phariss qualified as a “traffic
officer” and that his traveling in an unmarked vehicle failed to
comply with the directive of section 40800, the violation would
not have invalidated Dyer’s arrest.
Normally, the issue of what consequence to attach to a
violation of a statute would depend on whether we interpreted
the enactment as “directory” or “mandatory.” (See, e.g., Cox v.
California Highway Patrol (1997) 51 Cal.App.4th 1580, 1586-
1587.) That inquiry is unnecessary here, however, because the
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Legislature has clearly spelled out what sanctions should follow
from a violation of section 40800.
Former section 40804 provided, in relevant part, “(a) In
any prosecution under this code upon a charge involving the
speed of a vehicle, any officer or other person shall be
incompetent as a witness if the testimony is based upon or
obtained from or by the maintenance or use of a speed trap. [¶]
(b) Every officer arresting, or participating or assisting in
the arrest of, a person so charged while on duty for the
exclusive or main purpose of enforcing the provisions of
Divisions 10 and 11 is incompetent as a witness if at the time
of such arrest he was not wearing a distinctive uniform, or was
using a motor vehicle not painted the distinctive color
specified by the commissioner.”5 (Stats. 1978, ch. 84, § 1,
p. 219, italics added.)
Likewise, section 40805 of the speed trap law provides:
“Every court shall be without jurisdiction to render a judgment
of conviction against any person for a violation of this code
involving the speed of a vehicle if the court admits any
evidence or testimony secured in violation of, or which is
inadmissible under this article.” (Italics added.)
The import of these sections is unmistakable. In any
prosecution of a person charged with an offense “involving the
5 Section 40804 was rewritten in 2007, after the proceedings in
this case. The amendments did not affect the substance of the
statute discussed here. (See Stats. 2007, ch. 682, § 19.)
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speed of a vehicle,” the testimony of the arresting officer is
inadmissible unless that officer was in uniform and driving a
marked patrol car. The Legislature has thus created a specific
and limited remedy for a violation of section 40800--the
exclusion of the noncomplying officer’s testimony in a
prosecution for speed-related offenses. These sanctions
further the chief goal of speed trap legislation, i.e., to
restrict clandestine enforcement of the speed laws by officers
not clearly identified as law enforcement personnel.
The offense of driving under the influence does not
“involve the speed of a vehicle” as defined in section 40805.
(See Hardacre, supra, 116 Cal.App.4th at p. 1299.) Thus, where
the driver is detained or arrested on a charge of DUI, the
exclusionary provisions of sections 40804 and 40805 are
inapplicable. (Hardacre, at p. 1299.)
The case of People v. Tuck (1977) 75 Cal.App.3d 639 (Tuck)
illustrates this point. There, Tuck was a passenger in a car
pulled over for speeding by two plainclothes officers traveling
in an unmarked vehicle. The officers found contraband in the
vehicle and Tuck was later convicted of its possession. On
appeal, Tuck claimed the trial court should have granted his
motion to suppress the evidence on the ground that the officers’
violation of section 40800 rendered the vehicle stop illegal.
(Tuck, at pp. 642-643.)
The appellate court disagreed. It first pointed out, as we
just did, that the statute only applies to traffic officers
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whose main duties were traffic enforcement. Secondly, section
40800 does not prohibit an officer in an unmarked patrol car
from detaining a vehicle where he has reasonable cause to
believe the driver has committed a traffic offense; rather, it
simply renders inadmissible the officer’s testimony in a
prosecution for a speed-related violation. (Tuck, supra,
75 Cal.App.3d at pp. 643-644.) Since Tuck was not prosecuted
for a speed offense, the conviction was affirmed. (Ibid.)
Tuck’s analysis applies here. Since the Legislature has
authorized no sanction for section 40800 violations other than
as set forth in sections 40804 and 40805, the trial court erred
in fashioning its own remedy by declaring the arrest unlawful.6
(See People ex rel. Van De Kamp v. American Art Enterprises,
Inc. (1983) 33 Cal.3d 328, 333.) “[I]t is the role of the
judiciary to simply ascertain and declare what is in terms or in
substance contained in the statute, not to insert what has been
omitted or omit what has been included. In other words, the
courts ‘may not, under the guise of construction, rewrite the
6 We are unable to discern the basis for Dyer’s and the trial
court’s fixation on Mercer, supra, 53 Cal.3d 753. Mercer held
merely that the Vehicle Code and Penal Code statutes as then
written rendered unlawful the arrest of a person for drunk
driving unless the arresting officer actually saw the volitional
movement of the vehicle--regardless of whether the driver could
be convicted in a criminal court of drunk driving. (Mercer, at
pp. 757-758, 768-769.) Our analysis, like that in Mercer, rests
solely on statutory construction. Because the sanctions for a
section 40800 violation are expressly set forth in the Vehicle
Code, there is no need to resort to criminal case law regarding
suppression of evidence.
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law or give the words an effect different from the plain and
direct import of the terms used.’” (People v. Massicot (2002)
97 Cal.App.4th 920, 925.)
C. Penal Code Section 836
Relying on Penal Code section 836, Dyer claims that his
arrest by Deputy Griggs was unlawful because only Sergeant
Phariss, not Griggs, observed the conduct that formed the basis
for the arrest, i.e., drunk driving.
Penal Code section 836 provides that a peace officer may
make an arrest without a warrant whenever he has “probable cause
to believe that the person to be arrested has committed a public
offense in the officer’s presence.” (Pen. Code, § 836, subd.
(a)(1), italics added.) Dyer claims the judgment should be
affirmed on the alternative ground that the arresting officer,
Deputy Griggs, did not personally observe him committing a
misdemeanor DUI.
The argument lacks merit.7 The California Supreme Court
case of Freeman v. Dept. Motor Vehicles (1969) 70 Cal.2d 235
(Freeman) is on point and dispositive. In Freeman, Deputy
Sheriff Fowler observed Freeman driving in an apparent state of
intoxication and stopped his vehicle. He then summoned the
assistance of Highway Patrol Officer Byrd, who made the arrest.
7 Although the trial court never reached this contention
because it granted the writ on a different ground, we will
resolve it, since it raises a pure question of law under an
undisputed set of facts.
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When the defendant refused to submit to a chemical sobriety
test, his license was suspended by the DMV. (Id. at pp. 235-
236.)
Freeman challenged the license suspension on the ground
that his arrest was unlawful because Officer Byrd did not see
him commit the misdemeanor of drunk driving. The state Supreme
Court framed the question as follows: “If a peace officer
‘stops’ a motor vehicle driver for an alleged misdemeanor
traffic offense committed in his presence, may a valid arrest be
made by another peace officer who was summoned by the first
peace officer but did not see the driver commit the alleged
offense?” (Freeman, supra, 70 Cal.2d at pp. 236-237.)
The court answered this question affirmatively, stating in
part: “Officer Byrd was not the sole arresting officer. Deputy
Sheriff Fowler, by ‘stopping’ plaintiff for the alleged offense
and detaining him pending arrival of an officer of the highway
patrol, initiated, and thereby participated in, the arrest.
(See Pen. Code, §§ 834, 835.) Deputy Sheriff Fowler did not
himself complete the arrest, but it was completed by a person he
had summoned to aid him in making the arrest, as he was entitled
to do under section 839 of the Penal Code. That section reads:
‘Any person making an arrest may orally summon as many persons
as he deems necessary to aid him therein.’” (Freeman, supra,
70 Cal.2d at p. 237, fn. omitted, italics added.) Inasmuch as
Deputy Sheriff Fowler personally observed the conduct and
related his observations to Highway Patrol Officer Byrd, who
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assisted Fowler by making the arrest, the court held that the
requirements of Penal Code section 836 were satisfied.
(Freeman, at pp. 237-238.)
The actions of Sergeant Phariss and Deputy Griggs were
precisely analogous to those of Deputy Sheriff Fowler and
Highway Patrol Officer Byrd in Freeman. After observing Dyer’s
erratic driving, Phariss summoned Griggs to assist him with the
traffic stop. Although it was Griggs who formally placed Dyer
under arrest, both officers participated actively therein.
Where one officer has reasonable suspicion, based on
personal observation, that a suspect may be driving while
intoxicated, he may summon another officer to assist him in
making the arrest. (Pen. Code, § 839.) Because both officers
participated in arresting Dyer for DUI, his arrest complied with
Penal Code section 836. (See also Johanson v. Department of
Motor Vehicles (1995) 36 Cal.App.4th 1209, 1216-1217 [where
parking attendant could have made a citizen’s arrest for DUI,
licensee’s subsequent arrest by an officer he summoned did not
violate Pen. Code, § 836].)
We reject Dyer’s argument that the later enactment of
Vehicle Code section 40300.5 rendered Freeman obsolete as
authority. That section merely provides exceptions to the
requirement that misdemeanor drunk driving must occur in the
arresting officer’s presence.8 It does not vitiate Freeman’s
8 Vehicle Code section 40300.5 provides that a peace officer
may, notwithstanding the “presence” requirement of Penal Code
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conclusion that Penal Code section 836 is not violated when the
officer who observes drunk driving behavior summons another to
assist him in making the arrest.
III. Whether Dyer Was Driving with a BAC of 0.08 Percent or Above
As a final ground for affirmance, Dyer contends there was
no substantial evidence that he drove with a BAC level of at
least 0.08 percent. Acknowledging that the trial court made no
finding on this issue, on appeal Dyer relies on the doctrine
that a judgment will be affirmed if correct on any ground,
regardless of the reasons the trial court advanced to support
its ruling.
The record shows that Dyer performed extremely poorly on
the field sobriety tests. Only after several attempts did he
muster enough breath to record a reading on the mouthpiece of
the PAS (preliminary alcohol screening) device, which was an
“inconclusive” 0.072 percent BAC. Two Intoxilyzer tests
administered 30 minutes after his arrest registered a BAC
reading of 0.11 percent, well over the legal limit.
The administrative hearing officer found, based on the
evidence, that Dyer drove with a BAC of at least 0.08 percent.
On a petition for administrative mandate, the trial court was
required to exercise its independent judgment to determine
section 836, make a warrantless drunk driving arrest under
certain exigent circumstances. Because we uphold the arrest on
other grounds, we find it unnecessary to determine whether the
instant arrest fell within any of these exceptions.
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whether this finding was supported “‘by the weight of the
evidence.’” (Ocheltree, supra, 102 Cal.App.4th at p. 1017.)
The appellate court reviews the trial court’s determination
under the substantial evidence test. (Coombs, supra,
1 Cal.App.4th at p. 576.)
Owing to its erroneous legal conclusion that the arrest of
Dyer was unlawful, the trial court failed to decide whether the
weight of the evidence supported the administrative hearing
officer’s finding that Dyer drove with a BAC in excess of the
legal limit. Because the trial court failed to perform this
essential function, it is impossible to review its determination
for substantial evidence and the matter must be remanded for a
new hearing. (Barber v. Long Beach Civil Service Com. (1996)
45 Cal.App.4th 652, 659-660.) “A trial court abuses its
discretion when it applies the wrong legal standards applicable
to the issue at hand.” (Paterno v. State of California (1999)
74 Cal.App.4th 68, 85.) Where the trial court decides the case
by employing an incorrect legal analysis, reversal is required
regardless of whether substantial evidence supports the
judgment. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
436.)
DISPOSITION
The judgment is reversed and the cause is remanded to the
trial court for further proceedings consistent with the views
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stated herein. The DMV shall recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1).) (CERTIFIED FOR
PUBLICATION.)
BUTZ , J.
We concur:
RAYE , Acting P.J.
MORRISON , J.

Since 1923, California has outlawed the police tactics upon which many other states rely to conduct speed traps. One key provision of this statute prohibits traffic police from using any vehicle not distinctively marked. In most cases, this means the traditional black and white design. In her ruling last week, Justice M. Kathleen Butz cited a 1991 decision explaining the legislature was "motivated by a desire to eliminate clandestine methods of traffic enforcement designed to augment local revenues through exorbitant fines."


California DUI lawyers note a problem is that the court wrongly declares that 40800 is in a chapter called "Speed Traps".

This is not so, 40800 is found in a chapter labeled "Illegal Evidence" and thereafter each sub-chapter is labeled appropriately. The sub-chapter of 40800 was in fact specifically titled by the legislators as "Vehicle and Uniform Used by Officers".

This is goes directly against the Dyer's Court's holding, they say one thing and do the opposite:


“[I]t is the role of the judiciary to simply ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been
omitted or omit what has been included. In other words, the
courts ‘may not, under the guise of construction, rewrite the
law or give the words an effect different from the plain and
direct import of the terms used.’” (People v. Massicot (2002)
97 Cal.App.4th 920, 925.)

The legislature specifically labeled each of these Titles and Subtitles in accordance with their meaning. And so while you must show that the officer must be on for the exclusive purpose of enforcing the traffic laws, one can viably argue the claim of the court that the law is limited to speed violations - when not in proper uniform.

California Criminal Defense Lawyer may continue to pursue any argument that fits under those facts when cop not in uniform or marked unit - even for non-speeding offenses.