By Andrew Criado, Senior Attorney
The first line of attack against a DUI in Virginia is the traffic stop. If the defense can show that the police stopped the car without a reasonable basis, the court will suppress the evidence gained from the stop, and the DUI will be dismissed.
When can the police stop a car?
The police must always comply with the Fourth Amendment, which says in part that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated.” A traffic stop is a “seizure” under the Fourth Amendment. That seizure must be reasonable. What is a reasonable seizure? In general, the police may stop, i.e. seize, a car when there is probable cause (or at least reasonable suspicion) of a traffic violation. Example: The police clock a car going 40mph in a 25mph zone. The police stop the car. That stop is a reasonable seizure because the police had reasonable suspicion of a traffic violation.
Why challenge the traffic stop?
In general, when the police violate the Fourth Amendment, the court excludes the evidence gained from that violation. If a traffic stop is found to be unlawful, the court excludes the evidence gathered by the police during the stop. In a DUI stop, the excluded evidence would be the officer’s observations of the driver and the blood alcohol test. Without that evidence, the prosecutor would not be able to prove the DUI charge.
How do you suppress evidence from a traffic stop?
An attorney argues a motion to suppress at or before the DUI trial. The prosecutor presents the officer’s testimony about the reason for the traffic stop. The officer will describe what he or she observed before stopping the car. The defense attorney will then argue to the judge that the officer’s observations did not amount to probable cause (or at least reasonable suspicion) of a traffic violation. Example: The officer testifies that he stopped the car after seeing the car’s tires touch the lane marker one time. The defense attorney then moves to suppress the evidence gained from that stop. To win that argument, the defense attorney must convince the judge that seeing a car touch the lane marker one time is not probable cause (or at least reasonable suspicion) of a traffic violation. The traffic law that applies in that situation says that “A vehicle shall be driven as nearly as is practicable entirely within a single lane and shall not be moved from that lane until the driver has ascertained that such movement can be made safely.” Va. Code § 46.2-804(2). The question for the court is whether one touch of the lane marker is reasonable suspicion of a failure to drive within a single lane. If the answer is no, then the court will find that that stop was unlawful and suppress the evidence. If the answer is yes, then the court will deny the motion to suppress and allow the prosecutor to present the evidence gained from the stop.