Rodney's Blog

Dyer v. DMV

March 19th, 2009

Yes, in Dyer v. DMV, a uniformed cop in an unmarked police car conducts a traffic stop and notices objective signs of Driving Under the Influence and finds an open alcohol bottle in a vehicle after conducting an inventory search.  The DMV suspends the Defendant’s California Driver’s License after an Administrative Per Se Hearing.  The Defendant appeals contending that the arrest was not legal.  Court reasoned that California Vehicle Code 40800 governs the issue here:

“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 painted a distinctive color specified by the commissioner”.

Here there was no evidence that the arresting officer was a traffic officer, or that his main duties consisted of traffic enforcement.  On the contrary, the officer appeared to be exercising supervisory duties on the night in question.  And rather than make the arrest himself, he requested that another uniformed deputy assist him at the scene.  Even if the officer was working speed trap duty or traffic, this would not violate 40800 because Driving Under the Influence is not a speed violation.  Caveat: cop in unmarked car can arrest for DUI.

If either you or a loved one has been charged with a DUI or is subject to an Administrative Per Se Hearing, you need a knowledgeable attorney on your side to help you to preserve your driving rights. Please call us at (714) 955-8365 for a free telephonic consultation.