DUI in Sacramento - motion to suppress?

[janthony1]

What is the name of your state (only U.S. law)? california

here's the very short version. I will extend parts of the story as needed for more clarification.

at the intersection, as i was making a left hand turn (to east) and cop was at the red light (east direction), cop saw a blonde hair girl in the rear passenger with her head out my grey denali with factory tint windows and safety child windows (windows only go down halfway).

cop pulls me over and tells me he pulled me over cause he saw the blonde girl with her head out the window and proceeded to ask if i had been drinking.

i stated that i haven't been drinking (works everytime FYI) (except this time) and we were going home.

he makes me follow his pen with my eyes and pulls me out of the vehicle for a FST. i refused the FST and he takes me down to the office where his sargeant tells me if i dont accept to a blood or alcohol test, he will force me down, put my legs in very awkward positions and physically make me take a blood.

so i take the blood. came back .11

question: officer stopped me because the blonde wasn't wearing a seat belt. from his angle or behind, you can't physically see if a seatbelt is being worn. on the report he says her head AND torso was completely out the window as i was making a left hand turn.

what are my good chances for motion to suppress AND additionally, how will the judge view this as if her torso was out the window, she'd have to literally be standing up and falling out of my vehicle?What is the name of your state (only U.S. law)?

 

[cyjeff]

Your defense is that your passenger wasn't hanging as far out as the officer said she was?

What else ya got?

 

[CdwJava]

at the intersection, as i was making a left hand turn (to east) and cop was at the red light (east direction), cop saw a blonde hair girl in the rear passenger with her head out my grey denali with factory tint windows and safety child windows (windows only go down halfway).

cop pulls me over and tells me he pulled me over cause he saw the blonde girl with her head out the window and proceeded to ask if i had been drinking.

i stated that i haven't been drinking (works everytime FYI) (except this time) and we were going home.

Wait ... when you have the odor of alcohol on your breath and emanating from your pores, you simply get away with the lie, "I haven't been drinking?" Wow! Things sure have changed in Sacramento!

Just how often do you perform this dangerous ritual?

he makes me follow his pen with my eyes and pulls me out of the vehicle for a FST. i refused the FST and he takes me down to the office where his sargeant tells me if i dont accept to a blood or alcohol test, he will force me down, put my legs in very awkward positions and physically make me take a blood.

At least some things have not changed.

so i take the blood. came back .11

Oops! Guess he didn't buy your "I have not been drinking" fable and he was right.

question: officer stopped me because the blonde wasn't wearing a seat belt. from his angle or behind, you can't physically see if a seatbelt is being worn.

Head out the window is usually a good sign that the lap and shoulder harness are not properly applied. This is almost certainly going to be a good stop.

what are my good chances for motion to suppress

Yours? Almost nil.

A paid attorney's? A little greater than nil - if an attorney will even make such a motion.

AND additionally, how will the judge view this as if her torso was out the window, she'd have to literally be standing up and falling out of my vehicle?

The upper torso (shoulders, say) would be sufficient. If the officer says she was out up to her abdomen, that might not be entirely accurate, though it may have seemed that way to the officer.

I'd say you need to hire an attorney and you may want to consider a plea ... perhaps you can get a wet reckless, or, at least try to minimize the penalties if you play nice.

Hopefully you will pay attention to the alcohol classes and counseling and won't continue to play Russian Roulette with the lives of the rest of the public.

 

[janthony1]

Your defense is that your passenger wasn't hanging as far out as the officer said she was?

What else ya got?

there's no law against a head out the window. the technicality of the motion is the fact that in no way could the officer see if a seatbelt was on.

 

[janthony1]

Just how often do you perform this dangerous ritual?

At least some things have not changed.

Oops! Guess he didn't buy your "I have not been drinking" fable and he was right.

doesn't matter if he buys it or not. there's no way to tell if someone is drunk without results. looks like you like to make quite a few assumptions instead of sticking on the side of the law. blood tests are NOT immediate.

Head out the window is usually a good sign that the lap and shoulder harness are not properly applied. This is almost certainly going to be a good stop.

head out the window doesn't mean anything unless the ASSUMPTIVE officer wants to take a closer look at the cute blonde out the window.

seat belts these days EXTEND!

The upper torso (shoulders, say) would be sufficient. If the officer says she was out up to her abdomen, that might not be entirely accurate, though it may have seemed that way to the officer.

I'd say you need to hire an attorney and you may want to consider a plea ... perhaps you can get a wet reckless, or, at least try to minimize the penalties if you play nice.

Hopefully you will pay attention to the alcohol classes and counseling and won't continue to play Russian Roulette with the lives of the rest of the public.

thanks buddy.

 

[I_Got_Banned]

the technicality of the motion is the fact that in no way could the officer see if a seatbelt was on.

Actually, if her head and upper body was hanging out the window, it would be VERY easy to see whether her shoulder harness was on or not. And even if it was, that is NOT the proper way to sit in a vehicle and be properly/lawfully secured by and shoulder/lap belt!

But you/your attorney can make whatever argument you feel will cut you a break!

 

[CdwJava]

doesn't matter if he buys it or not. there's no way to tell if someone is drunk without results. looks like you like to make quite a few assumptions instead of sticking on the side of the law. blood tests are NOT immediate.

Articulated facts (reasonable suspicion) are all that is necessary for a detention. A driver with the odor of alcohol on his breath, and/or the odor of alcohol emanating from his person is sufficient to justify a detention for further investigation.

An arrest requires only a slightly higher burden of proof often referred to as "probable cause." Whether or not he had sufficient probable cause to make the arrest is something for a court to determine. Apparently he felt he had enough. Your argument here was not about probable cause, it was about the reasonable suspicion to justify the detention. Someone sticking a head and shoulders out an open window is more than sufficient to justify said detention for a possible violation of 27315 et seq.

head out the window doesn't mean anything unless the ASSUMPTIVE officer wants to take a closer look at the cute blonde out the window.

See above.

Clearly you have little experience with traffic matters or seatbelts.

seat belts these days EXTEND!

Uh huh ... and they are not worn properly (as required) if she is sticking her head and shoulders (or more of the torso) out the window.

thanks buddy.

Cool! So, you intend to heed my admonition and change your dangerous ways? I am so pleased.

 

[cyjeff]

there's no law against a head out the window. the technicality of the motion is the fact that in no way could the officer see if a seatbelt was on.

No... but it does post a nice sign on the outside of the car that says...

"Occupants have been drinking.

You see, sober people don't hang out the window.

I hope the blond wasn't your sister...cause she needs to be worth the trouble.

Oh... and I agree with Carl... this doesn't seem to be an unusual situation with you. Seek help.

 

[janthony1]

No... but it does post a nice sign on the outside of the car that says...

"Occupants have been drinking.

You see, sober people don't hang out the window.

I hope the blond wasn't your sister...cause she needs to be worth the trouble.

Oh... and I agree with Carl... this doesn't seem to be an unusual situation with you. Seek help.

oh God, i'd kill her if she was my sister... she has still yet to apologize for being so stupid so i've written her off.

as for "doesn't seem to be an unusual situation", can you clarify that a bit more?

 

[Zigner]

Not only was our OP drunk, but he wasn't even paying attention to the road. How else could he know exactly how far out the window his passenger was hanging?

 

[janthony1]

i love this forum.

you ask for advice and everyone judges and talks down to you.

but for those that actually gave me unbiased advice, thank you!

 

[janthony1]

Not only was our OP drunk, but he wasn't even paying attention to the road. How else could he know exactly how far out the window his passenger was hanging?

i had 4 other passengers telling me otherwise... thanks but no thanks for your smartass remark.

 

[Zigner]

i love this forum.

you ask for advice and everyone judges and talks down to you.

but for those that actually gave me unbiased advice, thank you!

 

[CdwJava]

About the ONLY straw I can see that your attorney might be able to grasp for is the probable cause for the arrest.

DUI cases that are dismissed/dropped, or are victories for the defense usually come about as a result of a bad detention or an arrest with insufficient probable cause.

The detention requires the least amount of articulation and is the easiest to support. Someone sticking a head out of a window (likely yelling or acting like an idiot) is more than sufficient to justify a detention for a couple of different reasons.

The arrest requires probable cause to believe that the person arrested has committed the offense. This could be done based upon the officer's observation of your driving, you actions on contact, etc. Depending on the training and experience of the officer, his observations may be quite accurate. And if he performed the HGN test on you (that is the pen and the eyes test you describe) then he may well be able to articulate solid probable cause. The HGN is a very accurate test and if only one test is done, that is the one I would recommend for any officer.

So, when you get legal counsel he or she can get a copy of the reports and review them for any potential weakness.

Most DUIs result in a plea deal (guilty), and those that go to trial most often result in convictions.