The starting point for most DUI investigations is the stop of the defendant’s vehicle by a police officer. An officer must have a legally acceptable reason to stop a vehicle. If a judge decides there was not a legally acceptable reason then all evidence obtained from the stop must be suppressed, meaning cannot be used at trial.
Legal Points
- The 4th Amendment to the U. S. Constitution protects individuals from unreasonable searches and seizures.
- Law enforcement officers ‘seize’ individuals by temporarily detaining them during traffic stops.
- Officers “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’
- An officer’s reasonable suspicion arises from both the combination of the officer’s perception of the facts and his understanding of the applicable law.
- Courts determine whether an officer had reasonable suspicion based on the totality of the circumstances, viewed in consideration of the officer’s training and experience and cannot be a mere hunch.
- “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.
- The reasonable suspicion standard for traffic violations in A.R.S. § 28-1594: “A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected traffic violation”.
Driving 70 in posted 75 while in the middle lane of a freeway can be traffic violation
On 11/28/25 in State v. Alvarez-Soto, The Arizona Supreme Court held that driving in the middle of 3 lanes in at speed of 70 in a posted 75 on the I-10, was an actual or suspected traffic violation and so an officer’s stop of the vehicle was justified.
28 A.R.S. § 721.B, says in part:
- On all roadways, a person driving a vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall drive the vehicle in the right-hand lane then available for traffic or as close as practicable to the right-hand curb or edge of the roadway.
In the case the defendant was driving 70 m.p.h. in the middle of 3 lanes on the I-10 where the a posted speed was 75. An SUV passed the defendant in the right lane. There was no evidence the defendant was impeding any traffic. The officer said he stopped the Defendant for violating 28 A.R.S. § 721(B) because by being passed by the SUV the defendant was driving less than the “speed of traffic,” in violation of the statute.
The court’s opinion did not say how the “speed of traffic” could be determined by the speed of exactly 1 other vehicle. There were 2 vehicles involved, the SUV and the defendant’s. Why was the SUV’s speed determinative of the “speed of traffic” and not the defendant’s speed.
The court also said, “The phrase “normal speed of traffic at the time and place and under the conditions then existing” in § 28-721(B) provides no quantitative metric. Thus, reasonable minds may differ about its interpretation and application.” This means drivers have no objective way of determining if they are in violation of the law. If the test is the speed of other vehicles, if other vehicles going 80 pass a vehicle going the legal maximum of 75 is the driver going 75 in violation of the statute? . Although there were other indicators of driving which could have been used to show reasonable suspicion the court focused on the 28 A.R.S. § 721.B violation.
Conclusion
A driver loses her constitutionally protected right to be free if she is driving in a manner which could be an actual or suspended traffic violation. Driving 70 in a posted 75 could be such a violation although a driver has no objective way of knowing what a legal speed is.
Gordon Thompson
For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.
Website: https://www.GordonThompsonAttorney.net
Blog: https://www.GordonThompsonAttorney.net/blog/
