Fullerton DUI, No DNA Sample Required, No HAM, No MADD

Our client, age 21, had gone out to downtown Fullerton with his four friends. It was an early spring evening and the nights were getting warmer. The client worked long hours, often seven days per week, at a pest control company, so having the chance to relax out in town was more than welcome.

In 30 Words or Less:  Client, age 21, pulled over for DUI in Fullerton.  0.12% BAC, case resolved without DNA sample, but with 3 years informal probation, 3-month DUI program and $390 fine only.

Our client was the driver and promised not to drink. However, once they went to the Matador Cantina, he decided to have “just one drink.” Then two, then three, then four. The group then walked over to JP23, another bar in downtown Fullerton. However, at JP23, our client renewed his vow not to drink and did not drink.

When the bars closed at 2:00 a.m., our client and his four friends made their way out to his car to drive home. Since our client had not drank any alcohol in over an hour, he felt safe to drive.

Our client pulled out of the parking lot behind the Matador Cantina and within three short blocks, was stopped by a City of Fullerton police officer. The first words out of the officer’s mouth were not, “Do you know why I pulled you over?” Instead, the officer’s first question was “You were drinking this evening, right?”

The officer then ordered our client and his four passengers out of the car. He then focused on our client and within two to three minutes, demanded that our client provide a breath sample in a preliminary alcohol screening (PAS) device. Our client declined to do so, as is his right.

This angered the officer, so he told our client that he had observed our client swerving all over the road. He also said our client had made an unsafe lane change.

The educated reader of this summary will note that swerving and changing lanes can be legal. It is not a violation of any law unless it affects the safety of others. People v. Carmona, (2011) 195 Cal.App.4th 1385. Furthermore, the officer did not state in his police report if the swerving was “pronounced” (“pronounced” swerving for a substantial distance is required for a proper traffic stop). People v. Perez (1985) 221 Cal.Rptr. 776, 778. Indeed, we believe that the swerving was not pronounced, as the road was straight. We suspect that our client was pulled over merely because he was observed leaving a parking lot at closing time and the officer rightly guessed our client’s blood alcohol content (BAC) was above the legal limit of 0.08%.

Fullerton Courthouse