Police May Make Traffic Stops in Unmarked Cars

Friday, May 23, 2008

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Police May Make Traffic Stops in Unmarked Cars—C.A.

By Steven M. Ellis, Staff Writer

The California Legislature did not intend a law against speed traps to be an absolute bar to traffic stops by officers in unmarked cars, the Third District Court of Appeal ruled yesterday.

Rejecting Paul Dyer’s challenge to the Department of Motor Vehicles’ pre-conviction suspension of his driver’s license after he was arrested for driving under the influence of alcohol, the court held that California law requiring every “traffic officer” to use a marked vehicle did not invalidate an arrest absent evidence that the officer’s primary duty was traffic enforcement because the law only applies to speed traps.

Even if it was, the court further held, the only remedy was excluding testimony as to speed-related offenses, and the court remanded the matter for further proceedings.

An officer with the Placer County Sheriff’s Department in an unmarked patrol car stopped Dyer and called for backup just after midnight on Feb. 9, 2006 after observing Dye’s vehicle swerving between lanes, the officer later testified. While the officer waited, a uniformed officer in a marked patrol car responded, and formally arrested Dyer after he failed a field sobriety test.

Citing Dyer’s arrest, the Department of Motor Vehicles suspended his driver’s license for 45 days under the administrative suspension statute, and then upheld the suspension after conducting an administrative hearing at Dyer’s request.

Dyer then sought review in the Placer County Superior Court, arguing that Vehicle Code Sec. 40800 prohibited the use of unmarked vehicles for traffic stops.

The statute provides that “a traffic officer on duty for the exclusive or main purpose of enforcing [traffic safety laws] shall wear a full distinctive uniform, and if the officer while on duty uses a motor vehicle, it must be painted a distinctive color specified by the commissioner.”

Concluding that the traffic stop was unlawful because of the use of the unmarked car, Placer Superior Court Commissioner Trilla A. Bahrke agreed with Dyer, and determined that the license suspension was improper.

However, on the DMV’s appeal, Justice M. Kathleen Butz rejected Dyer’s argument.

Noting that “[s]peed trap laws have been on the books in California since 1923,” and that the Legislature enacted them for the purpose of “eliminat[ing] clandestine methods of traffic enforcement designed to augment local revenues through exorbitant fines,” Butz opined that the law did not apply because there was no evidence on the record to support a conclusion that the officer’s primary duty was traffic enforcement.

Further, she wrote, even if the officer had violated the statute, Placer Superior Court Commissioner Trilla A. Bahrke “erred in fashioning [her] own remedy by declaring the arrest unlawful,” because the sole remedy is to exclude a non-complying officer’s testimony in a prosecution for speed-related offenses.

Butz also rejected Dyer’s claims that his formal arrest by the second officer, who had not observed Dyer’s driving, was not supported by probable cause, writing that it was valid because both officers actively participated.

Dyer also argued that Bahrke’s decision could be upheld on any grounds, regardless of her reasoning, and contended that the DMV’s finding that he had a blood alcohol content of over .08 percent was not supported by the weight of evidence.

However, Butz, noting that the trial court had relied on a “legally infirm ground…and failed to conduct an independent review of the sufficiency of the evidence to support the DMV’s factual findings,” remanded the matter for such review instead.

Justices Vance W. Raye and Fred K. Morrison joined Butz in her opinion.

The case is Dyer v. Department of Motor Vehicles, C054971