Of all the questions I get about what to do and what not to do during a California DUI stop, the question about whether a person has to give a breath sample after a DUI stop is among the most common of the questions.
Strangely enough, the answer is both “yes” and “no” depending on which breath sample we’re talking about.
When law enforcement pulls someone over, chances are they already think the person is driving under the influence. However, in order to arrest them for a California DUI, law enforcement needs probable cause. This means that the officers must have facts that would lead a reasonable person to believe that the person is driving drunk. In other words, the officers cannot just arrest someone on the hunch that the person is driving while under the influence. They need facts to suggest that the person is actually driving drunk.
The officers get the probable cause, or facts, through their own observations and when the driver performs and fails the field sobriety tests. In addition to the field sobriety tests that people typically think of, there is the preliminary screening alcohol (PAS) test. This is a roadside breathalyzer that is also considered a field sobriety test. And like the other field sobriety tests, the PAS test is optional. If the PAS test shows that a person has alcohol in their system, then the officers have the facts that would suggest that the person is driving under the influence.
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
The officer who makes the stop, by law, must advise the person that the PAS test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
If the PAS test detects alcohol in the person’s system, they’ll likely be arrested for a DUI. Once the person is arrested, they must take a chemical test which can either be a breath or a blood test according to California’s Implied Consent Law.
California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
In other words, if you’re licensed to drive in California, you have impliedly consented to give either a breath or a blood sample when you are lawfully arrested on suspicion of a California DUI.
The key word here is “lawfully” arrested. If the officer did not observe any poor driving and the person does not perform any field sobriety tests including the PAS test, the officer may not have the probable cause to arrest the person. And if the officer does not have probable cause that the person is driving under the influence, yet they arrest the person anyways, the arrest is no longer lawful.
When an arrest is unlawful, all evidence obtained after that arrest, including the results of the chemical test are inadmissible.
As you can see, it can be rather complicated. So simply put, you do not have to take the pre-arrest breathalyzer called the PAS test, but you do have to take a post-arrest chemical test which could include a breathalyzer.
Considering purchasing a personal breathalyzer? I’ve suggested it before as one of several ways to help prevent a DUI. What if knowing your blood alcohol content was a simple as slapping on a temporary tattoo? Well, researchers at the Center for Wearable Sensors at the University of California San Diego have created a removable electronic tattoo that detects the wearer’s BAC.
A team of researchers at the center were interested in a device that offered continued BAC monitoring which typical breathalyzer do not offer. The researchers also wanted to develop a BAC detector that could not be skewed by factors other than blood alcohol such as mouthwash, acid reflux, or alcohol residue in the mouth all of which affect typical breathalyzers.
The tattoo is similar to other devices sometimes mandated by the court as a condition of a California DUI sentence or a condition of being release without having to post bail pending the outcome of a California DUI case. At least in Southern California, the device is called a SCRAM device which passively tests “insensible” sweat, or trace amounts of sweat, excreted from a person’s skin. The SCRAM device is rather bulky and can be relatively expensive.
The tattoo, however, emits a drug called pilocarpine, which generates sweat. The tattoo then tests the sweat excreted from the skin as a result of administration of the pilocarpine for ethanol alcohol through sensors which are attached to the skin. However, unlike the SCRAM device, the temporary tattoo and sensors are attached to a flat, flexible circuit board that is about an inch in length. The circuit board then transmits the information to the wearer’s phone via Bluetooth.
One of the project scientists and professor of nanoengineering, Joseph Wang, has said that the tattoo device could be made even smaller than its current form with continued engineering. He added that, unlike the SCRAM device, the tattoo could cost a mere pennies to produce.
“We developed a new tattoo-based wearable alcohol sensor that enables real-time monitoring of blood alcohol level, overcoming limitations of conventional non-invasive alcohol sensors,” said Jayoung Kim, a co-author and PhD student at UCSD.
The tattoo comes at a time when law makers and law enforcement agencies are actively seeking more reliable and efficient ways to detect blood alcohol content.
Earlier this year, the National Institute on Alcohol Abuse and Alcoholism, which is part of the National Institute of Health, awarded $200,000 to San Francisco-based BACtrack for developing a bracelet-type device as the winner of its Wearable Alcohol Biosensor Challenge. BACtrack has produced a number of personal breathalyzers for consumer use.
Keith Nothacker, BACtrack’s founder and chief executive officer, said that the firm is working on bringing the winning sensor, called “Skyn,” to the consumer market for around $99 and offer a version that is integrated into a band for the Apple watch.
In a press release, Joseph Wang said that the primary purpose for developing the BAC-detecting temporary tattoo was to prevent drunk driving.
“Lots of accidents on the road are caused by drunk driving. This technology provides an accurate, convenient and quick way to monitor alcohol consumption to help prevent people from driving while intoxicated,” Wang said.
Hopefully soon the temporary tattoo will be available for consumer use. And maybe the BAC detecting tattoo will prevent, not just drunk driving, but also someone from getting so drunk that they get a real tattoo that they might regret the next morning.
A conviction in a drunk driving case depends, of course, on the accuracy and reliability of the blood or breath test administered to the suspect. And this depends upon the accuracy and reliability of the government’s crime laboratory — more specifically, on the honesty and skills of the crime lab technicians. It is the crime lab techs who analyze the blood tests, maintain and check the accuracy of the breath machines — and testify in trial.
It is, of course, assumed that these lab techs — who are usually working for the same government that is prosecuting the accused defendant — are objective and honest scientists, with no stake in the outcome. This is certainly what prosecutors reassure their juries.
But what if the crime labs have a financial interest in the outcome of the trial?
New Study Finds That State Crime Labs Are Paid Per Conviction
Huffington Post, Aug. 29, 2013 – I’ve previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they’re considered part of the state’s “team” — if performance reviews and job assessments are done by police or prosecutors — even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we’ve seen over the last couple decades. And this of course doesn’t even touch on the more blatant examples of outright corruption.
In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded…
The author of this article, Radley Balko, then excerpts the following findings from that study (entitled "The Criminal Justice System Creates Incentives for False Convictions"):
Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’
In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’
Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’
Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.
Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’
In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.
The Huffington Post author then concludes:
Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.
Do you still think that a citizen accused of drunk driving can receive a fair trial? Or is this yet another example of "Bad Drunk Driving Laws, False Evidence and a Fading Constitution"?
Logic tells us that with the increased use of ride-sharing apps like Lyft and Uber that there would a lower number of drunk driving arrests. I’ve been saying it since they’ve become available: If you’re too drunk, don’t drive. Take alternative means of transportation like Lyft and Uber. And it seems like people have been.
In 2015 Uber collaborated with Mothers Against Drunk Driving (MADD) to commission a study on the impact of Uber on drunk driving. The study found that DUI arrests and accidents fell significantly in areas where Uber was available.
“In California, Uber’s home state and largest market, drunk-driving crashes fell by 60 per month among drivers under 30 in the markets where Uber operates following the launch of uberX,” the study authors stated. “That’s an estimated total of 1,800 crashes prevented since July 2012.”
Last month, however, the American Journal of Epidemiology published a study that contradicted Uber and MADD’s initial claims.
The study compared DUI related deaths on weekends and holidays in U.S. counties before the introduction of ride-sharing apps and after. Researchers from the University of Southern California and Oxford University focused on statistics from the 100 most populated metropolitan cities in the U.S.
The study concluded that there was no significant reduction in drunk driving deaths before and after the introduction of Uber and other ride-sharing apps.
“We found that the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays,” wrote the researchers. Study co-author David Kirk told the Washington Post the report indicates “there’s still tons of room for improvement when it comes to reducing drunk driving fatalities.”
The authors speculated on the reasons behind their findings:
“The average inebriated individual contemplating drunk driving may not be sufficiently rational to substitute drinking and driving for a presumably safer Uber ride,” said the study’s authors. “[I]t is also possible that many drunk drivers rationally conclude that it is too costly to pay for an Uber ride (or taxi) given that the likelihood of getting arrested for drinking and driving is actually quite low.”
Uber spokesperson, Brooke Anderson, responded to the recent study in an email to the Washington Post:
“We’re glad Uber can provide an alternative to drunk driving and help people make more responsible choices. Our ridership numbers show that trips peak at times when people are more likely to be out drinking and 80% of riders says that Uber has helped them personally avoid drinking and driving.”
Whether the research points to a reduction in DUI-related fatalities or not, one thing remains sure. Taking an Uber or other ride-sharing app is always a better option than driving drunk.
Stephen Miller, 40, of Pennsylvania was arrested and charged early last month with two counts of driving under the influence, two counts of endangering the welfare of children and various traffic citations. Miller championed Pennsylvania’s “Kevin’s Law,” the name of which honored his son who was killed by a hit-and-run driver suspected of drunk driving. The law increased the penalties for hit-and-run drivers in fatal accidents.
Miller’s son, Kevin, was killed in 2012 after being hit by a driver who fled the scene. It was suspected that the driver, Thomas W. Letteer Jr., 26, was driving under the influence at the time, however never faced charges of DUI because he was not caught until much later.
On June 12th, Miller was stopped because law enforcement spotted his vehicle traveling at night without headlights and unlit tail lights. At the time of the stop, Miller had this two other children in the vehicle, one of which was Kevin’s twin. It was later determined that Miller’s blood alcohol content was more than three times the legal limit at 0.27 percent.
Miller is set to appear on August 17th.
In addition to the penalties for the DUI, Miller is facing 100 hours of mandatory community service and a fine of at least $1,000 under Pennsylvania law.
California, on the other hand, is not as forgiving.
In California, if you are charged with a DUI under California Vehicle Code section 23152 and at the time of driving, you have a minor under the age of 14, you also face an enhancement to the DUI charge under California Vehicle Code section 23572.
In addition to any penalties given for a DUI conviction, if the enhancement is found to be true, the person faces an additional and consecutive 48 hours in a county jail for a first DUI conviction, 10 days for a second DUI conviction, 30 days for a third DUI conviction, or 90 days for a fourth or subsequent misdemeanor DUI conviction.
For other reasons, I’ve said that it is extremely important to hire an experienced California DUI when facing criminal charges. The same absolutely holds true for a California DUI charge with a child endangerment enhancement.
If an experienced California DUI attorney can successfully defend against the underlying DUI charge, the child endangerment enhancement cannot stick nor can a person be punished under it. This is true if the underlying California DUI charge is found to be untrue by a jury after a trial, the charges dismissed, or if the charge is reduced to what is known as a “California wet reckless.”
It should also be noted that drunk drivers who have children in the vehicle at the time of driving can also be charged under California Penal Code section 273(a), otherwise known as California’s child endangerment law. Child endangerment can be charged as either a felony or a misdemeanor when a person places a child under the age of 18 in a situation where his or her heath or welfare can be endangered. If charged with child endangerment, a person faces up to a year in county jail for a misdemeanor and up to six years in a California state prison for a felony.
If a person is convicted of a DUI and child endangerment under California Penal Code section 273(a), they, however, cannot face the DUI enhancement under California Vehicle Code section 23572.
I’ve posted in the past about the difficulties of testing for marijuana in drunk driving investigations. See Does Presence of Marijuana in Blood Constitute Drunk Driving?, Identifying and Proving DUI Marijuana ("Stoned Driving") and Driving + Traces of Marijuana = DUI. But John Ibanez and I have also posted about the increasing likelihood of roadside marijuana tests in the future. See Roadside Oral Swab Tests Coming? and California Proposes New Law to Allows Roadside Marijuana Testing.
The future is now….
Not Just Your Breath — Police Now Conducting Saliva Swabs to Check Drivers for Cannabis
Michigan, July 23 – Michigan State Police plan to implement one of the most invasive methods of drug testing in the country in a pilot program: saliva tests….Five counties will force their residents into becoming guinea pigs for what must be the worst thwarting of constitutional and privacy rights in recent years. Saliva-based tests will check drivers for cannabis, heroin, cocaine, and more…
However, (the saliva test) is highly problematic — impairment caused by THC can’t precisely be tested by blood, several studies have found. In fact, the Arizona Supreme Court unanimously ruled in November last year the presence of THC (tetrahydrocannabinol) — the psychoactive ingredient in cannabis — in the blood does not necessarily indicate impairment.
Granted, state laws about the presence of certain drugs and in what quantities vary widely, but using what amounts to unfounded ‘science’ to then create a law with even greater invasiveness marks quite the leap of logic…
Attorney Neil Rockind opposed Michigan’s saliva-based drug testing legislation, warning it would set “a dangerous precedent” in the state.
“The criminal justice system wants to take science and turn it into a fast, easy utility,” Rockind advised. “Science is neither fast nor easy.”…
Of course, scientific truth has never proven a deterrent to ever-more invasive criminal laws — most notably in the so-called "War on Drunk Driving". See my post How to Overcome Scientific Facts: Pass a Law.
(Thanks to "Joe".)
In April of 2015, Leonardo Morales was driving his Chevy Tahoe and exiting the 55 freeway in Costa Mesa when he collided into a tree on the off-ramp. According to California Highway Patrol, two officers patrolling the area spotted the flames that erupted immediately following the collision.
The officers who spotted the flames called in to dispatch for other officers to respond. Responding officers Daryl Hansend and Timothy Montoya found Morales on the floor, 22-year-old Kathy De Rosa in the front passenger seat, and a 2-year-old “running around and crying and pointing at the car,” said CHP Officer Florentino Olivera.
As the officers were attempting to extract De Rosa, they heard the cries of a baby on the floorboard of the rear driver’s side seat. The children, whose parents were Morales and De Rosa, were taken to Children’s Hospital Orange County. Morales and De Rosa were taken to Western Medical Center in Santa Ana.
Morales was later determined to have alcohol in his system and was subsequently arrested.
Both Morales and De Rosa had prior DUI convictions. In 2014, Morales pleaded guilty to misdemeanor driving under the influence and driving on a suspended license. In 2015, De Rosa pleaded guilty to misdemeanor driving under the influence, misdemeanor driving with a blood alcohol content of 0.08 percent or higher, and misdemeanor child endangerment since children were present in the vehicle when she was under the influence.
Last month, Morales pleaded guilty to driving under the influence of alcohol causing injury, driving with a blood alcohol of 0.08 percent or more causing injury, and two counts of child abuse and endangerment, all felonies. Additionally, Morales admitted sentencing enhancement allegations that he inflicted great bodily injury and great bodily injury on a child younger than five-years-old.
Morales was sentenced to seven years in prison just last week.
Unfortunately for Morales, a DUI may be elevated, and was in his case, to a felony when the DUI leads to the injury of another under California Vehicle Code 23153.
Although Morales was sentenced to seven years, he was originally facing two, three, or four years in a California State Prison, an additional and consecutive three to six years in prison for each other person who suffered great bodily injury, a “strike” on his record under California’s Three Strikes Law, up to $5,000 in fines, and 18 or 30 month DUI program, restitution to the victim or victims, a Habitual Traffic Offender (HTO) status with the California DMV for three years, and a five year revocation of driving privileges.
DUI with injury can also be charged as a misdemeanor. Although it was highly unlikely in Morales’s case given the facts, it is possible. If originally charged as a felony, alternatively a plea deal could involve reducing the charge to a misdemeanor. As a misdemeanor, the penalties include informal summary probation for three to five years, up to a year in county jail, up to $5,000 in fines, a three, nine, 18, or 30-month DUI program, restitution to the victim or victims, and a one or three year suspension of driving privileges.
For this reason, it is extremely important to hire a competent and experienced California DUI attorney to negotiate the best plea deal possible or, if the prosecutors unwilling to budge, fight the case through trial and achieve a not guilty verdict.
When a person is convicted of a California DUI, they face a number of penalties one of which is to attend a court-approved DUI program. The most common of inquiries regarding the programs have to do with their duration. The length of the required program depends on the individual facts and circumstances of the case.
I would be remiss if I first did not explain that the names of each program relate to the legislative bill that created the program.
When a person under the age of 18 is convicted of a California DUI, they may be required to attend AB-803. AB-803 is a 12-hour program that is attended over the course of six weeks.
A “wet reckless” conviction is a reduction from an original DUI charge. As such, it may allow for only a 12-hour program called SB-1176 which taken over six weeks. It should be noted that a reduction to a wet reckless will not automatically call for the SB-1176 program. It may be that a longer program will be required by the court. Furthermore, the California DMV will also require at least a three month program before it will reinstate driving privileges following a DUI suspension.
A three-month, 30-hour program called AB-541 is typically required for a first-time DUI or wet reckless reduction assuming that the facts are not particularly aggravating. However, if the DUI case involves a crash or a blood alcohol content of 0.08 percent to 0.14 percent.
If, however, a first time California DUI involves a blood alcohol content between 0.15 percent and 0.19 percent, a person could be required to attend AB-762. AB-762 is a six month program usually to be attended once a week for two hours.
When a first-time California DUI involves particularly aggravating circumstances such as a vehicle collision or a blood alcohol of 0.20 percent or more, the court may require a nine-month DUI program called AB-1353. AB-1353 usually consists of 60 hours of class time.
If a person is convicted of a second or more DUI or wet reckless within a ten-year period, they face a multiple-offender program called SB-38. SB-38 is an 18-month program. Since SB-38 is a rather lengthy course, the court will likely require several progress reports throughout the 18-month period.
Although highly unusual, the court can impose the longest of the California DUI programs. SB1365 is a 30-month program and is usually required when a person suffers two or more California DUI related convictions within ten years or when the case involves extremely aggravating facts such as an extremely high BAC level. SB1365 is only offered in Los Angeles County and Stanislaus County.
It is important to note that there is no hard and fast rule to know exactly which California DUI program will be required. It really will depend on the circumstances and facts surrounding the case, the discretion of the court, and the ability of your DUI attorney. This is why it is extremely important to hire a competent DUI attorney to fight for the shortest program, possibly even no program.
So you’re driving home after a dinner…and you’re pulled over by the police. The officer asks you if you’ve been drinking, and when you reply that you have not, he asks you to step out of the car and gives you a field sobriety test.. He then administers a portable breath test. When the results indicate no alcohol in your system, he tells you that he suspects you are under the influence of some type of drug and arrests you.
The officer then drives you to a nearby medical facility and tells you that you have to give him a urine sample. Angry for having been wrongfully arrested, and believing you have a right to refuse, you decline.
What happens next? Well, it could get painful….
Police Use Catheters, Force to Collect Urine Samples
Pierre, SD. July 5 — Police in South Dakota are collecting urine samples from uncooperative suspects through the use of force and catheters, a procedure the state’s top prosecutor says is legal but is criticized by others as unnecessarily invasive and a potential constitutional violation…
It’s unclear how widespread the practice of forced catheterization is in South Dakota. Attorney General Marty Jackley said in an interview that the practice is permitted with a signed court order under state law, and he cited several cases that supported the legality of the practice.
The attorney general said law enforcement would prefer not to collect urine samples by force, but that ultimately it’s up to suspects if they don’t want to cooperate.
“I don’t think anyone wants to go through that methodology,” Jackley said…
Police always take the person to a hospital if they are going to take a forced urine sample, said Tim Whalen, a Lake Andes attorney who has represented a couple of clients who have had urine samples taken without permission. Health care workers at the Wagner and Platte hospitals conduct the procedure on a regular basis, he said.
“They don’t anesthetize them,” Whalen said. “There’s a lot of screaming and hollering.”…
Do you think this practice is limited to South Dakota? Take a look at some of my earlier posts, such as Catheter Forced Up Penis After Arrest (Washington), Another Weapon on the War on Drunk Driving: Forced Catheterization (Indiana) and DUI Suspect Forced to Have Penis Catheterized (Utah).
Field sobriety tests and DUI stops go hand in hand. In fact, field sobriety tests are the things that my clients most closely associate with a DUI stop. Yet, very few people know that they are optional. Because most people mistakenly believe that they are mandatory, they take them and “fail” even though they may not even be under the influence.
So how does a person fail the field sobriety tests while without even being under the influence?
Law enforcement agencies in California and throughout the country use a number of field sobriety tests to gauge a person’s coordination, balance, and simple motor skills. The National Highway Traffic Safety Administration has approved three field sobriety tests as “standardized.” These test include the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test. However, police officers also use non-approved field sobriety tests to gather the probable cause necessary to make a DUI arrest. Those tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.
Although field sobriety tests are intended to gauge a person’s coordination, balance, and simple motor skills after having consumed alcohol, standardized or not, field sobriety test can be unreliable for a number of reasons.
We all know that driving tired is dangerous. However, while it may be dangerous, it is not illegal. When a person is tired, they exhibit many of the same symptoms of intoxication. Poor coordination, lack of balance, and trouble with motor skills are symptoms of both tiredness and intoxication. Whether the symptoms come from tiredness or intoxication, they can cause a person to fail field sobriety tests. What’s worse is that when a person is tired, they also display other symptoms of intoxication that officers often look for during a DUI stop; bloodshot water eyes and slurred speech.
Many people experience physical problems or disabilities which may affect how a person performs on field sobriety tests. Problems such as knee or back pain would make it difficult to perform the physical requirements of field sobriety tests.
People who are older or over weight, may have trouble performing the field sobriety tests for the same reasons.
Many times people are suspected of driving drunk following a vehicle collision and are often given field sobriety tests shortly after the collision. Poor performance on the field sobriety tests is attributed to intoxication rather than the after-effects of a vehicle collision.
Without even knowing it, many people suffer from inner ear problems. The inner ear contains a small organ called the labyrinth that helps people maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.
Have you ever been pulled over? We you nervous? My guess is that you answered yes to both questions. It goes without saying that people are nervous and stressed when they get pulled over. When people are nervous and stressed, they have difficulty concentrating. Unfortunately, concentration is a key component in completing the field sobriety tests. Officers will “fail” a person if they cannot follow instructions in performing the field sobriety tests even though it was due to a lack of concentration, not intoxication.
Much of the time, officers have already made up their minds that a person is driving under the influence when they make the DUI stop. This pre-conceived notion in conjunction with a psychological phenomenon called the “confirmation bias” causes the officer to interpret field sobriety test performance as “failing” regardless of how the person actually performs.
I’ve posted in the past about people being arrested for driving a bicycle under the influence. In these cases, the courts have often decided that a bicycle qualifies as a "vehicle" and so riding one triggers all of the usual drunk driving laws and penalties. See, for example, Drunk Biking, DUI Roadblock: 240 Sober Drivers, 1 DUI Bicyclist and DUIs on Bicycles.
These posts have often been met with disbelief. Many of this blog’s readers cannot imagine that law enforcement would waste their limited resources on something so trivial — or even that it is possible to be arrested and convicted of drunk driving on a bike.
For those reacting with this understandable incredulity, I would refer them to the following YouTube video, published a couple of weeks ago: LAPD Arrests Man Walking Bike for DUI.
The video, taken by a bicyclist watching another bicyclist pulled over by a Los Angeles Police Department motorcycle cop, shows the man given field sobriety tests by the officer — 3 times (which he appears to perform well). He is then also given a field breath test – two separate batteries of testing. (Note: As riding a bicycle does not require a driver’s license, there is no "implied consent" authorizing a breath test.) During the questioning and testing, another LAPD motorcycle cop arrives, presumably as backup — followed a few minutes later by yet another officer in a police car. The bicycle rider is then arrested for drunk driving, handcuffed and driven away.
Another victory in MADD’s "War on Drunk Driving".
(Thanks to "Joe".)
Police are supposed to be neutral and gather the evidence whether incriminating or exculpatory. They are not supposed to side with either the prosecution or the defense. This simply isn’t the case. More often than not, police try to find incriminating evidence, and only incriminating evidence, even when it might not exist…
…except when the suspect is a district attorney.
Earlier this month, a driver called 911 to report a suspected drunk driver in Silver City, New Mexico. Cell phone video confirmed the suspected drunk driver’s poor driving.
When Silver City police arrived, they noticed that the suspect was recently re-elected district attorney of Grant, Luna, and Hidalgo counties, Francesca Estevez.
An officer’s body camera captured the bizarre interaction between police and Estevez.
"I have a flat! And I kept going over, and over!" Estevez said from inside the car. "I was coming in from Deming and the car kept swinging this way!"
Moments later, Estevez said that she was coming from Lordsburg.
In addition to the inconsistent statement, Estevez was slurring her speech, having trouble on her feet, fumbling with her phone, and went on a strange rant.
“We don’t want the U.S. Department of Justice to start looking down here,” she said. “It’s gotten to that point. Most of you are good.”
“What do you think?” asked Officer Leticia Lopez who was wearing the body camera. “She’s loaded, she almost fell down,” responded Officer Kyle Spurgeon.
New Mexico State Police were called in to assist with the stop. However, Officer Alyssa Carasco of the New Mexico State Police Department appeared to be disinterested in initiating a DUI investigation.
“If you have a problem with me not doing anything, then you can go ahead and do something. I’m not,” Carasco told Lopez.
Then the video appears to show Estevez appear to practice a heel-to-toe field sobriety test along a crack in the sidewalk.
What’s more, as Estevez was allowed to drive away, she ran into a curb right in front of the officers.
Had this been anyone else (well except maybe another officer), they would have been investigated and arrested on suspicion of DUI.
And so I ask: Who are the police working for?
New Mexico State Police has launched an internal investigation. It has yet to be determined whether Silver City Police will do the same.
In December of last year, both Lawrence Taylor and I wrote about the United States Supreme Court’s announcement that it would review the criminalization of chemical test refusals following a DUI stop. On June 23rd, that decision was announced.
In a split decision, the Court held that states can punish a person for refusing a chemical breath tests following a DUI stop absent a warrant. States, on the other hand, cannot punish a person for refusing a chemical blood test absent a warrant.
In late 2015, the Hawaii Supreme Court issued a decision that decriminalized chemical test refusals in DUI cases. Prior to the decision, it was a petty misdemeanor to refuse a chemical test after a DUI arrest punishable by up to 30 days in jail and/or a $1,000 fine.
The Hawaii Supreme Court reasoned that criminalizing a chemical test refusal violated the 4th Amendment because we have the right against warrantless searches by law enforcement and the government cannot punish us for essentially invoking our 4th Amendment right. Furthermore, any consent to search (which is what a chemical test is; a search for alcohol in your breath or blood) cannot be voluntary if our only options are giving up a constitutional right or be punished.
Similar cases to that of Hawaii’s coming from North Dakota and Minnesota prompted the United States Supreme Court to take up the issue.
The decision affects thirteen states which make it a crime or increases penalties for to refusing to take a chemical test. Amongst those states is California where a prosecutor can allege that a person refused the chemical test in addition to the DUI charge in the criminal complaint. If the refusal is found to be true, a person can face additional penalties through the court case and a longer suspension of driving privileges through the DMV.
Writing for the majority, Justice Samuel Alito said that breath tests do not implicate “significant privacy concerns.” Alito went on to say that breath tests are different than blood tests which require the piercing of skin and leaves a biological sample in the government’s possession. Breath tests, on the other hand, only require a person to blow into machine.
Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.
So what does this mean for California?
Well, we’ll just have to wait and see exactly how this plays out. However, based on the Court’s decision, California courts and the California DMV can still punish people for refusing a chemical test after a DUI arrest, but only if the chemical test is a breath test. If the only chemical test that is available is a blood test after a DUI arrest, officers must obtain a warrant before forcing a person to submit to the blood test and a person cannot be punished for refusing that blood test absent that warrant.
This decision, unfortunately, is yet one more example of the erosion of our constitutional rights. The 4th Amendment and the warrant requirement was written to ensure that searches are not arbitrary capricious. Warrants ensure that searches are reasonable so as to protect the privacy of citizens. There mere arrest of a person does not make a search, be it a breath test or otherwise, per se reasonable.
Chisel, chip, and off falls our 4th Amendment right against unreasonable searches and seizures.
I’ve written repeatedly over past years on the continuing destruction of our constitutional rights — particularly in DUI cases. See "The DUI Exception to the Constitution".
Yesterday, in the case of Utah vs. Strieff, the United States Supreme Court dealt yet another blow to what few rights still remain, even in non-DUI cases. From the New York Times:
Supreme Court Says Police May Use Evidence Found After Illegal Stops
Washington, DC. June 20 – The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.
Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop…
The case, Utah v. Strieff, No. 14-1373, arose from police surveillance of a house in South Salt Lake based on an anonymous tip of “narcotics activity” there. A police officer, Douglas Fackrell, stopped Edward Strieff after he had left the house based on what the state later conceded were insufficient grounds, making the stop unlawful.
Officer Fackrell then ran a check and discovered a warrant for a minor traffic violation. He arrested Mr. Strieff, searched him and found a baggie containing methamphetamines and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful stop or whether they could be used as evidence given the arrest warrant.
“Officer Fackrell was at most negligent,” Justice Thomas wrote, adding that “there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”…
In a dissent…Justice Sotomayor said the court had vastly expanded police power.
“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.
“If the officer discovers a warrant for a fine you forgot to pay,” she continued, “courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”…
So an admittedly illegal stop by police — a clear violation of the Fourth Amendment — is ok if it was not "flagrantly unlawful"? When did the Constitution only apply to "flagrant" violations? What constitutes "flagrant"?
What little remains of our Constitution lays in tatters on the steps of the Supreme Court — the third branch of the government intended by the Founders to protect those rights.
A Houston man was sentence to life in prison this past week following his ninth, yes, ninth DUI conviction.
In May of 2015, Donald Middleton, 56, hit a 16-year-old driver head on and subsequently fled to a nearby gas station to hide. The 16-year-old happened to be the son of a Montgomery County Precinct Constable. Middleton was subsequently caught and found to be under the influence of alcohol. Fortunately the teen was not severely harmed as a result of the accident.
During the sentencing hearing, Middleton took the stand and told the court that his drinking problem developed when he was just a freshman in high school after years of being teased and bullied by classmates.
“To me there was no question that we needed to do everything that we could to ensure he wouldn’t be on the roads driving with our friends, our families, our kids on the road putting everyone at risk,” said Montgomery County Assistant District Attorney Justin Fowles.
According to court records, Middleton’s first DUI conviction occurred in 1980 when he was only 20 years old. For that conviction, Middleton was sentenced to a $200 fine and 60 days in jail. Since then, Middleton faced DUI charges in 1983, 1992, 1993, twice in 1997, 1999, and 2008. He also faced a possession of crack cocaine charge in 1993.
Notwithstanding Middleton’s prior criminal history, he maintained a valid Texas driver’s license.
The United States Supreme Court has consistently held that to be constitutional a punishment must be proportionate to the crime. Although the definition of proportionality isn’t always clear, when punishments and crimes are compared, some gaping discrepancies become apparent.
In most states, a life sentence is reserved for people who intend to commit egregious and violent offenses; murder, robbery, rape, etc.
There is no question that when a person drinks and drives, there is a risk of death or harm to bystanders. But the vast majority of people who drink and drive do not intend death or harm to anyone and most of the time no one is hurt or killed. People commit other traffic offenses every day that could also lead to death or harm and they too don’t intend on harming or killing anyone, yet they aren’t villainized or punished like DUI offenders. Are we to send a person for life if they have nine tickets for texting and driving?
If we’re punishing DUI offenders for committing non-violent offenses because of the mere possibility that they could harm someone, then there is a very apparent problem with consistency in our sentencing of non-violent crimes.
Texas’s allowance of life sentences for multiple DUI offenders speaks to a larger, and often publically denied, problem of lack of treatment for alcoholism. Whether the public wants to believe it or not, alcoholism is a disease.
Throwing a person in prison for life means giving up on that person. Although that may be an appropriate punishment for some offenses, it seems particularly cruel to me to give life to someone who made a mistake, who did not intend harm, who has a disease, and because their conduct could cause harm.
On Tuesday of last week, the California Senate passed a new bill that would require all people convicted of a California DUI to have an ignition interlock device installed on their vehicle. Senate Bill 1046 will now be sent to the California Assembly for consideration.
Under a current pilot program here in California, only four counties require the installation of an ignition interlock device following a DUI conviction; Alameda, Los Angeles, Tulare, and Sacramento. A first-time DUI requires installation for five months upon eligibility to drive either with a restricted license or a full reinstatement of driving privileges. The pilot program also requires an IID for 12 months for a second-time DUI, 24 months for a third DUI, and 36 months for a fourth or subsequent DUI.
If you don’t already know, an ignition interlock device is a breathalyzer that is installed into the dashboard of a person’s vehicle. The device must be blown into before the engine can be started, but only if the breathalyzer does not detect alcohol on the breath sample. Once the vehicle is started, the breathalyzer must be blown into at random times throughout the drive.
The proposed law was introduced by Senator Jeremy Hill and, not surprisingly was overwhelmingly praised by Mothers Against Drunk Driving (MADD).
“MADD is grateful to the Senate for moving this life-saving bill forward," said MADD’s National President, Colleen Sheehey-Church. "In the coming weeks, MADD will be visiting Assembly members and calling on them to quickly pass SB 1046 to protect residents and visitors from this 100 percent preventable crime."
MADD released its “Ignition Interlock Report” compiled from data collected during the pilot program which has been running since 2010. According to the report, ignition interlock devices have prevented more than one million drunk driving attempts in California with about 125, 000 of those attempts involving a blood alcohol content of 0.08 percent or more.
However, the California DMV is also compiling a report on the effectiveness the ignition interlock devices have had on preventing drunk driving.
In fact, the California DMV previously found that such a law would not prevent people without ignition interlock devices from driving drunk. Additionally, there are ways to circumvent the requirement of providing a clean breath sample before starting a vehicle.
The cost of the interlock device can run approximately $75 to $100 for installation, about $75 per month, and often additional fees for maintenance and calibration. This is on top of the cost already associated with a California DUI conviction which can run upwards of $10,000.
If passed, first time offenders would be required to install the devices for six months, a year for a second offense, two years for a third offense and three years for a fourth or subsequent offenses.
The will be heard by several Assembly committees, including the Committee on Public Safety, and must be approved by the Assembly before it can be considered by California Governor Jerry Brown.
To avoid needing to hire an expert DWI Springfield Missouri lawyer, you should limit your drinking before driving any type of vehicle. Blood alcohol content standards vary in each state, and it is your responsibility to understand how many servings of particular alcoholic beverages can put you over the legal limit. These standards of alcohol consumption have been determined by researchers and are accepted by government law officials as the level of intoxication that leads to impairment that can cause you to have a collision. Blood alcohol content is measured in the blood, and it is explained as a percentage.
Effects of Alcohol Consumption
Drinking certain amounts of alcohol will lead to changes in your behavior and physical reactions. At a low level of consumption, you can appear normal, but with specialized tests, experts can determine that your perceptions are altered. As you drink more alcohol, you begin to show symptoms of impairment that progress. Reactions to alcohol consumption include:
• Lack of concentration
• Poor reasoning
• Impairment of peripheral vision
• Lack of depth perception
• Impaired motor skills
• Memory loss
• Loss of consciousness
The legal limit for being arrested for driving while intoxicated varies in different states, and drivers who are operating a vehicle with a commercial driver’s license have stricter requirements than those driving with a basic driver’s license.
Springfield in Missouri Alcohol Consumption Limits
Missouri has liberal laws concerning how retailers can sell liquor to the public, leading to an increased number of DWI arrests. Anyone drinking alcoholic beverages in this state must have a general idea of how much alcohol is in each type to avoid impairment that can lead to an accident that causes property damage, personal injuries or death. Manufacturers of alcoholic beverages may list the amount of alcohol in product, and it is important for everyone to understand the correct portion size of an alcoholic beverage. Here is a list of the average number of drinks an individual can consume before driving without developing impairment:
• Hard liquor – 1.25 ounces at 80 percent proof
• Wine – 5 ounces at 12 percent proof
• Beer – 12 ounces at 40 percent proof
Anyone driving a vehicle with a blood concentration level of .08 or above is committing a crime that is punishable with a financial fine, a penalty such as incarceration and loss of a driver’s license.
California is a destination for many people, a destination which offers many locations and opportunities to imbibe some alcoholic refreshments. When an out-of-state driver does partake in enjoying some alcoholic drinks, they sometimes make the mistake of getting behind the wheel and are arrested for a California DUI. When that happens, often is the question: How will their out-of-state residency affect the outcome of the DUI case?
Although the person may have an out-of-state driver’s license, they will still be subject to the DMV’s administrative action to determine whether their driving privileges in California should be suspended. This is the same “admin per se” hearing that California drivers are subject to following a DUI arrest and will be conducted in much the same manner. A loss of the hearing or a conviction will trigger a suspension of that person’s California driving privileges. Whether the driver’s home state recognizes a suspension following a loss of the California admin per se hearing or a DUI conviction will depend on the state’s reciprocity with California under the Interstate Driver’s License Compact.
Fortunately for most misdemeanor DUI charges, the defendant does not need to be present at the pretrial hearings of a DUI case. If a person decides to take a plea deal, they may need to be present for the plea. Some judges, however, will allow the out-of-state driver to enter a plea without needing to be present as long as the person’s attorney reviews the documents with the driver, the driver signs the documents before a notary public, and the attorney provides the documents to the court.
If a person is convicted of a California DUI, many of the conditions of probation typically associated with a California DUI conviction require a person to be present in California. However, a skilled DUI attorney can negotiate a plea deal that does not require an out-of-state driver to come back to California to fulfill the conditions of probation.
The California Vehicle Code requires that a person convicted of a California DUI complete an approved DUI program, the length of which depends on the individual facts of the case; three-month program (AB 541), six-month program (AB762), nine-month program (AB 1353), and an 18-month program for a second-time DUI or more (Sb 38). These program are only approved and offered in California. For out-of-state drivers, the judge must allow either an out-of-state or online program equivalent to whatever program the driver would have to take if they were in California.
While the out-of-state driver will likely be allowed to participate in an out-of-state or online program, the California DMV will not recognize a non-approved program when reinstating a person’s driving privileges. The DMV requires the completion of an approved DUI class before it will reinstate a person’s driving privileges. However, following the suspension, the out-of-state driver can petition the California DMV for a “set-aside” of the suspension notwithstanding their inability to complete an approved DUI program.
Other conditions typically required following a California DUI conviction may or may not be offered in other states. Mothers Against Drunk Driving (MADD) Victim Impact Panels are offered in many states, however may be limited in where in the state they are offered.
Many states offer their version of California’s “Hospital and Morgue Program,” which is sometimes required following a California DUI conviction, although it may differ in form and length.
If it is impractical to require an out-of-state driver to complete either MADD’s Victim Impact Panel or the Hospital and Morgue Program, the prosecutor and judge may be willing to substitute a number of Alcoholics Anonymous (AA) meetings for the programs since AA meetings are offered in most municipalities across the United States.
Being an out-of-state driver does complicate the process, but it doesn’t mean that the driver’s rights are forfeited. It takes a skilled California DUI attorney to ensure that out-of-state drivers are treated fairly by the California court system.