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Can a San Diego police officer pull me over for weaving within my own lane of traffic?

by | Jan 27, 2014 | DUI Cases |

An officer must articulate why they are pulling someone over in a San Diego DUI investigation.  The report will claim the driver was “weaving”.  However, upon further investigation you will find the officer actually mean the driver was “weaving within the lane”.  Now, there is a difference between weaving all over the road as opposed to weaving within the lane.  This is one example of how it is vital for a proactive attorney who knows what they are doing to flesh out the true details of the night.  So, can a police officer stop you for weaving within the lane?

Generally, weaving within one’s own lane of travel is not unlawful and without more does not establish lawful justification for a police office to pull you over.

Under some circumstances, this wholly lawful behavior can provide sufficient cause to justify a detention for a suspected violation of Vehicle Code section 23152. The California courts first addressed the issue of “weaving within a lane” in People v. Perez (1985) 175 Cal.App.3d Supp. 8. Today, the standard annunciated in Perez remains the benchmark by which these types of cases are measured.

In Perez, the officers followed the defendant for three quarters of a mile as he weaved within his lane two feet in either direction for the entire distance. (Id. at 9.) In finding reasonable suspicion to stop Mr. Perez, the court held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” (Perez, supra 175 Cal.App.3d Supp. at 11-12., emphasis supplied.) The court intended it’s holding to be read narrowly given its choice of adjectives and the corresponding facts of that case. Likewise, in People v. Bracken (2000) 83 Cal.App.4th Supp. 1, the defendant was stopped because an experienced officer observed extremely pronounced weaving within the lane for approximately one-half mile. In both Perez and Bracken, the defendants were weaving within their lanes, but had done so for a considerable distance. Further, the weaving was severe and pronounced.

The weaving within your lane issue was also addressed by the Ninth Circuit Court of Appeal. In United States v. Colin, 314 F.3d 439 (9th Cir. 2002), the Ninth Circuit held that only in cases where the weaving was pronounced and where the distance traveled was substantial did the Perez holding have valid application.

In Colin, the police observed the defendant for 35-40 seconds, during which time he drifted to the far side of the lane he was in for approximately 10 seconds, before drifting back toward the other side. Colin then made a legal lane change, and proceeded to repeat the drifting conduct. The Court held that these circumstances did not warrant application of Perez. The Court explained that “if failure to follow a perfect vector down the highway…[was] sufficient [reason] to suspect a person of driving while impaired, a substantial portion of the public would be subject every day to an invasion of their privacy.” (Colin, supra at 446.)

Courts have limited their decisions in the weaving, drifting and straddling cases to permit a stop only in those cases where the movements are pronounced, recur over a substantial distance and specifically affect other traffic or while speeding.  These are important facts to hash out because police often pull the trigger and stop a driver for a San Diego DUI investigation.  This is especially so late at night and near one of the main San Diego DUI zones (such as Gaslamp, Pacific Beach, Point Loma, etc).

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected].

Here is the case in full

People v. Perez (1985)
175 Cal. App. 3d Supp. 8 [221 Cal. Rptr. 776]

Appellate Department, Superior Court, San Diego.

[Crim. A. No. 72063. August 26, 1985.]

THE PEOPLE, Plaintiff and Appellant, v. JOSE MANUEL PAEZ PEREZ, Defendant and Respondent.

(Opinion by Duffy, J., with McConnell, P. J., and Hamrick, J., concurring.)


Edwin L. Miller, Jr., District Attorney, and Craig E. Fisher, Deputy District Attorney, for Plaintiff and Appellant.

Ray R. King for Defendant and Respondent.


The People appeal an order dismissing the case against defendant after granting a motion to suppress evidence pursuant to Penal Code section 1538.5. [175 Cal. App. 3d Supp. 10]

Facts of the Case

At approximately 2:15 a.m. on May 31, 1984, Officer Alvernaz observed an orange Opel automobile driven by respondent eastbound on Interstate 8. The officer’s attention was drawn to the vehicle because of a “pronounced weaving” within the lane. The officer described the drift as being two feet in each direction. The officer followed the vehicle while it was weaving for about three quarters of a mile. Due to the weaving observed by the officer the vehicle was stopped. The detention was predicated on the officer’s belief that the driver was under the influence of alcohol.

The municipal court found that the detention was unlawful and that weaving alone within a marked lane was not sufficient cause to stop the vehicle.


[1a] The sole issue raised on appeal is whether pronounced weaving within lane provides an officer with reasonable cause to stop the vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance, in this case for about three-quarters of a mile.

2 It has been firmly established that when a police officer detains a citizen the Fourth Amendment is triggered.Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 859, 88 S.Ct. 1868]. A detention occurs “whenever a police officer accosts an individual and restrains his freedom to walk away,” (People v. Aldridge (1984) 35 Cal. 3d 473, 477 [198 Cal.Rptr. 538, 674 P.2d 240], relying onTerry v. Ohio, supra, 392 U.S. at p. 16 [20 L.Ed.2d at p. 903]) or when an officer stops an individual because that person may be personally involved in some criminal activity.” (In re Tony C. (1978) 21 Cal. 3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957].)

3 In order to justify a detention “the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that 1) some activity relating to a crime has taken place or is occurring or is about to occur, and 2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in like position, drawing when appropriate on his training and experience [citation] to suspect the same criminal activity ….” (People v. Aldridge, supra, 35 Cal. 3d at p. 478; People v. Lowen (1983) 35 Cal. 3d 117, 123 [196 Cal.Rptr. 846, 67 P.2d 436];In re Tony C., supra, 21 Cal. 3d at p. 893.)

[4, 1b] Although it has been clearly established in this state that weaving from one lane to another justifies an investigatory stop (seeKiskey v. [175 Cal. App. 3d Supp. 11]State of California (1984) 36 Cal. 3d 415 [204 Cal.Rptr. 428, 682 P.2d 1093]; People v. Weaver (1983) 143 Cal. App. 3d 926 [192 Cal.Rptr. 436]; People v. Goldbreath (1980) 104 Cal. App. 3d 988 [164 Cal.Rptr. 116]; People v. Tennessee (1970) 4 Cal. App. 3d 788 [84 Cal.Rptr. 697]), no court in California has yet addressed the issue of whether an officer may lawfully detain a driver who has been observed to be weaving within his lane. However, a motorist driving in an “eccentric manner” on a freeway has been deemed to be indicative of one driving under the influence justifying an investigatory stop. (People v. Manis (1969) 268 Cal. App. 2d 653 [74 Cal.Rptr. 423].) In addition, decisions from outside this jurisdiction have routinely held that weaving within one’s lane for substantial distances are facts which give rise to a reasonable suspicion that one is driving under the influence. For instance, in State v. Bailey (1981) 51 Or.App. 173 [624 P.2d 663], an Oregon court held that weaving within a lane for a period of four or five blocks justified an investigatory stop. Similarly, in Ebona v. State (Alaska 1978) 577 P.2d 698, the defendant’s vehicle was “continually weaving” but at all times remained in its lane. The court ruled that the reoccurring weaving justified the officer’s detention. In State v. Dorendorf (N.D. 1984) 359 N.W.2d 115, an officer observed a vehicle weaving within its own lane of traffic for approximately one-eighth to one-quarter of a mile. Here too the court determined that such facts gave rise to a reasonable belief that the driver was under the influence, rejecting the defendant’s argument that a smooth continuous weaving within traffic lane does not give cause to detain. (See also State v. Kvam (Minn. 1983) 336 N.W.2d 525.)

Respondent urges this court to affirm the dismissal in this case contending that in the absence of a traffic violation there could not be any justification for stopping the vehicle. This same argument was rejected in State v. Kvam, supra, at p. 527. The court in Kvam noted that the court should consider that a trained law enforcement officer be permitted to make inferences and deductions that might well elude an untrained person. In the present case, the detaining officer has been a police officer for seven and one-half years and has had extensive training and experience in dealing with driving under the influence cases. Included in his training was driving under the influence enforcement and a drug-alcohol recognition training seminars. The officer presently conducts in-service training of driving under the influence seminars to other officers. The officer inferred from his observation of respondent’s vehicle based on his training and experience that the driver exhibited signs of intoxication. Such onion was based on the observation of pronounced weaving which continued for about three-quarters of a mile. We conclude that the officer’s actions were proper and hold that pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance. [175 Cal. App. 3d Supp. 12]

In addition, we note that an officer is also justified in stopping a vehicle in such instance to investigate the cause of such weaving as the weaving is also indicative of possible equipment violations (i.e., faulty wheel alignment, problem in the steering mechanism or defect in the tires). The officer had the right to determine exactly what was causing the vehicle to weave.

Accordingly, the ruling of the lower court is reversed.

McConnell, P. J., and Hamrick, J., concurred.

You can find the case here.

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