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  1. #1
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    Default California Court Weakens Ban on Unmarked Traffic Police

    California Court Weakens Ban on Unmarked Traffic Police
    California appeals court ruling allows unmarked police cars to make traffic stops for any offense other than speeding.

    M. Kathleen ButzAn appellate court last Thursday weakened a ban on using unmarked cars to issue traffic citations that had stood for nearly eighty-five years. A three-judge panel of the California Court of Appeal for the Third District made the change in the case of Paul Dyer, a man accused of driving under the influence of alcohol (DUI).

    Around midnight on February 9, 2006, Placer County Sheriff's Sergeant Jess Phariss was patrolling Highway 267 in an unmarked police car. Phariss grew suspicious when he saw the Jeep Cherokee belonging to Dyer driving slowly. He followed the Jeep and claimed that it crossed the highway's center line several times. Phariss initiated a traffic stop, noted signs of intoxication and had a second Sheriff's Deputy who had been called to the scene administer sobriety tests. A handheld breath testing device produced a reading of 0.07 -- under the legal limit -- for Dyer. Phariss deemed this "inconclusive" and proceeded to arrest the man anyway. A second breathalyzer test administered at 1:07am indicated a 0.11 reading -- above the legal limit. It is possible for such readings to increase over time as alcohol is absorbed into the bloodstream.

    A trial court judge threw out the DUI conviction as proceeding from an unlawful arrest and ordered the Department of Motor Vehicles (DMV) to overturn the agency-imposed driver's license suspension. The DMV appealed the court ruling.

    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."

    In this case, the three-judge panel ruled that because the law only applies to traffic police, it did not apply to Phariss who played only a "supervisory" role. The second officer who had been called to the scene made the actual arrest. Moreover, the justices refused to apply the speed trap law to other common traffic offenses.

    "The chief goal of speed trap legislation [is] to restrict clandestine enforcement of the speed laws by officers not clearly identified as law enforcement personnel," Justice Butz wrote. "The offense of driving under the influence does not 'involve the speed of a vehicle' as defined in section 40805."

    The appeals court ordered a new trial court hearing to consider the evidence of whether Dyer was actually intoxicated at the time he was driving. A copy of the ruling is available in a 40k PDF file at the source link below.

    Source: PDF File Dyer v. Department of Motor Vehicles (California Court of Appeal, Third Appellate District, 5/26/2008)
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  2. #2
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    Default Re: California Court Weakens Ban on Unmarked Traffic Police

    Quote Originally Posted by StlouisX50
    California Court Weakens Ban on Unmarked Traffic Police
    California appeals court ruling allows unmarked police cars to make traffic stops for any offense other than speeding.

    M. Kathleen ButzAn appellate court last Thursday weakened a ban on using unmarked cars to issue traffic citations that had stood for nearly eighty-five years. A three-judge panel of the California Court of Appeal for the Third District made the change in the case of Paul Dyer, a man accused of driving under the influence of alcohol (DUI).

    Around midnight on February 9, 2006, Placer County Sheriff's Sergeant Jess Phariss was patrolling Highway 267 in an unmarked police car. Phariss grew suspicious when he saw the Jeep Cherokee belonging to Dyer driving slowly. He followed the Jeep and claimed that it crossed the highway's center line several times. Phariss initiated a traffic stop, noted signs of intoxication and had a second Sheriff's Deputy who had been called to the scene administer sobriety tests. A handheld breath testing device produced a reading of 0.07 -- under the legal limit -- for Dyer. Phariss deemed this "inconclusive" and proceeded to arrest the man anyway. A second breathalyzer test administered at 1:07am indicated a 0.11 reading -- above the legal limit. It is possible for such readings to increase over time as alcohol is absorbed into the bloodstream.

    A trial court judge threw out the DUI conviction as proceeding from an unlawful arrest and ordered the Department of Motor Vehicles (DMV) to overturn the agency-imposed driver's license suspension. The DMV appealed the court ruling.

    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."

    In this case, the three-judge panel ruled that because the law only applies to traffic police, it did not apply to Phariss who played only a "supervisory" role. The second officer who had been called to the scene made the actual arrest. Moreover, the justices refused to apply the speed trap law to other common traffic offenses.

    "The chief goal of speed trap legislation [is] to restrict clandestine enforcement of the speed laws by officers not clearly identified as law enforcement personnel," Justice Butz wrote. "The offense of driving under the influence does not 'involve the speed of a vehicle' as defined in section 40805."

    The appeals court ordered a new trial court hearing to consider the evidence of whether Dyer was actually intoxicated at the time he was driving. A copy of the ruling is available in a 40k PDF file at the source link below.

    Source: PDF File Dyer v. Department of Motor Vehicles (California Court of Appeal, Third Appellate District, 5/26/2008)
    This isn't the first time the California courts have done this, I've read caselaw similar where someone was busted in a drug bust and cited with speeding during the bust. The courts ruled that because speeding was only a pretext for the stop, the charge dismissed, and not the actual reason he was pulled over in the first place(they had probable cause to pull him over but used speeding as a pretext to make sure that things wouldn't get out of hand.) That the speed trap rules didn't apply and the motion to supress was denied.

  3. #3
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    Can anyone cite the actual case law or rules that say police operating in the official capacity of traffic enforcement can not use unmarked cars. I keep hearing this is true in CA and I seen the drug bust case where the cited the above and said that since the officer was no doing traffic enforcement they were not subjected to the no unmark car rule, but I never see the rule or case laws that specifically cite this.

  4. #4
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    what Maestro said. what is the actual legal context?

  5. #5
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    Quote Originally Posted by Maestro
    Can anyone cite the actual case law or rules that say police operating in the official capacity of traffic enforcement can not use unmarked cars. I keep hearing this is true in CA and I seen the drug bust case where the cited the above and said that since the officer was no doing traffic enforcement they were not subjected to the no unmark car rule, but I never see the rule or case laws that specifically cite this.
    Quote Originally Posted by California Vehicle Code
    40804. (a) In any prosecution under this code upon a charge
    involving the speed of a vehicle
    , an 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) An 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 (commencing
    with Section 20000) and 11 (commencing with Section 21000) is
    incompetent as a witness if at the time of that arrest he was not
    wearing a distinctive uniform, or was using a motor vehicle not
    painted the distinctive color specified by the commissioner.
    (c) This section does not apply to an officer assigned exclusively
    to the duty of investigating and securing evidence in reference to
    the theft of a vehicle or failure of a person to stop in the event of
    an accident or violation of Section 23109 or 23109.1 or in reference
    to a felony charge or to an officer engaged in serving a warrant
    when the officer is not engaged in patrolling the highways for the
    purpose of enforcing the traffic laws.

 

 

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