Arburn
Arburn v. Department of Motor Vehicles
Opinion
lead Opinion
Mihara, J.
Following an administrative hearing, appellant Department of Motor Vehicles (the DMV) suspended respondent Jeffrey J. Arburn’s driving privileges for one year for driving motor vehicle while under the influence of alcohol. (See Veh. Code, §§ 13353.2, 13353.3, subd. (b)(2).) 1 The superior court granted Arburn’s subsequent petition and issued a writ of mandate directing the DMV to set aside the suspension. On appeal, the DMV contends the superior court erred in reversing Arburn’s suspension on the grounds that the arresting officer did not have reasonable suspicion to stop Arburn’s vehicle. We agree and reverse.
I. Background
On March 31, 2005, at approximately 5:00 p.m., San Jose Police Officer Lira was stopped at a stop sign eastbound on Forest at the Bascom Avenue intersection. 2 Turning to his left, Officer Lira saw Arburn’s “vehicle weaving, *1483 S/B Bascom Ave. and almost hit the curb.” Arbum’s vehicle was “weaving in Lane #2,” and was “traveling at about the speed limit” when it “almost hit the west curb of Bascom Ave.” Officer Lira pulled behind the vehicle as it passed in front of him and the car “immediately turned into a parking lot of a business.” Officer…
dissent Opinion
Duffy, J.
The majority finds a sufficient record that San Jose Police Officer Lira had a reasonable suspicion to make the traffic stop that ultimately resulted in respondent Jeffrey J. Arburn’s arrest for driving under the influence. I respectfully disagree.
*1487 “[I]n order to justify an investigative stop or 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 crime has taken, place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ], superseded on other grounds by Cal. Const., art. I, § 28.) In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273 [ 151 L.Ed.2d 740 , 122 S.Ct. 744 ]; see also People v. Souza (1994) 9 Cal.4th 224, 239 [ 36 Cal.Rptr.2d 569 , 885 P.2d 982 ].)