what are the laws that are broken on penal code 1538.5?

on a dui checkpoint what laws do officers have to follow

Answers:
He's asking about California.

The question is nonsense, however. Section 1538.5 of the Penal Code is the statutory mechanism that allows unlawfully obtained evidence to be suppressed (kept out of court). A 1538.5 hearing is held at the request of the defendant to determine if the government followed "the rules" when it obtained evidence to be used against a defendant in a criminal case.

For example, if a defendant is charged with possession of drugs based on a search of his person, the defense may file a 1538.5 motion to challenge the search. The defendant may take the position that the search was unlawful and ask the Court to exclude the evidence obtained as a result of the unlawful search.

In Danny's case, a 1538.5 motion might be filed to contest the legality of the checkpoint, the observations of his sobriety made by the officer who initially detained him, the observations made by the officer who evaluated him and ultimately arrested him, and/or the function of the breath machine or other chemical testing procedure. There might even be more issues, but those are the significant ones.

So while the question really doesn't make sense, it at least shows the poster has an idea of what's going on. A 1538.5 hearing is used to determine if the government did the things it's allowed to do by law and didn't violate anyone's constitutional rights.

Danny - see my other answer to your first question. I applaud your interest in safeguarding your rights. However, if you acknowledge (even if only to yourself) that you were driving in violation of the laws in California concerning DUI (driving a motor vehicle with a blood alcohol level of .08% or higher) then I'm left feeling like you need to accept that you potentially could have killed someone (or yourself) that night, and take your lumps. If you think you can get off on a technicality, go for it if you want. But really...you know if you were guilty or not, no matter what the legal beagles end up saying, and if you should be punished for making a bad decision, then take it and move on. I know it's expensive and I know it has a *profound* impact on your life...but the impact you might have had on other lives that night makes your concerns look childish.

EDIT 2/12/06: James F...I know, but that does not stop defendants from filing supppression motions against them.
Each state, and even many cities have their own set of penal codes. Where are you asking about?

Edit: I just wanted to add to the other responder that checkpoints have been repeatedly upheld as proper and reasonable searches, and do not constitute entrapment or violate the 6th amendment rights.


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