Archive for the 'Field Evidence' Category

“Lane Straddling” as the Precursor to a DUI Stop

Wednesday, April 30th, 2014

In my last post, I mentioned that officers often indicate that the basis for a DUI stop is the observation of a vehicle swerving. Forget about the DUI for a moment. Can the officer initiate a traffic stop for swerving within a lane, often called lane-straddling?

The stopping of a vehicle by law enforcement is a “seizure” and, as such, must adhere to the strictures of the 4th Amendment of the Constitution. The 4th Amendment prohibits unreasonable searches and seizures. To be “reasonable” under the 4th Amendment, the officers must have a reason for the stop. If the officer observes the vehicle violate a traffic law and bases the stop on the violation of the traffic law, the 4th Amendment requirements are usually met.

Is there a traffic law for swerving? Yes.

California Vehicle Code §21658(a), provides, “A vehicle shall be driven as nearly as practical within a single lane and shall not be moved from the lane until such a movement can be made with reasonable safety.”

But what does it mean to drive “as nearly as practical within a single lane?” Does it mean that we cannot have our tires touch the painted lines until we intend on safely merging into an adjacent lane? Fortunately, according to the 9th Circuit Court of Appeals, no.

In U.S. v. Colin, 314 F.3d 439, the 9th Circuit Court of Appeals dealt with this very issue. The arresting officer observed defendant drift onto the solid white fog line of the far side of the right lane for about ten seconds. The defendant’s vehicle then drifted to the left side of the right lane, signaled a lane change, and moved into the left lane. The officer then observed the vehicle drift to the left side of the left lane where its left wheels traveled along the solid yellow line for approximately ten seconds. The defendant’s vehicle then returned to the center of the left lane, signaled a lane change, and moved into the right lane.

Can you picture it?

The arresting officer then pulled the defendant over for possible violations of California Vehicle Code §21658(a) for lane straddling and DUI.

The court held that the officer’s stop was illegal, stating,  “Touching a dividing line, even if a small portion of the body of the car veers into a neighboring lane, satisfies the state’s requirement that that a driver drive as ‘nearly as practical within a single lane’… It is reasonable that a driver with no cars abreast of him might veer slightly within his lane or over the lane lines in the course of making a lane change to ensure that it is safe to do so. In sum, we conclude that the facts, taken together, support the conclusion that [the officer] lacked probable cause to stop [the defendants] for lane straddling.” Id. at 444-445.

It’s good to know that the Court recognizes that we are, after all, just humans who aren’t perfect.

It went on to say, “If a failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” Id. at 447.

This is not to say that swerving within a lane cannot be indicative of driving under the influence.

It was articulated in People v. Perez, 221 Cal.Rptr. 776, 778, that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” (emphasis added).

While officers many times use the observation of swerving and lane straddling as the precursor to a DUI stop, the truth is they often don’t account for simple human error. How often have you inadvertently veered within your lane after a sneeze or while changing the radio station.  The law doesn’t require perfection and neither should officers.

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The Use of Dash Cams in DUI Stops

Friday, April 25th, 2014

 

Many Southern California law enforcement agencies are beginning to use dashboard cameras (“dash cams” or “MVARS”) to capture traffic stops which lead to DUI arrests. In fact, many of these videos can be found on youtube.com showing DUI suspects miserably failing field sobriety tests, slurring their words, and otherwise providing evidence of their intoxication.

The dash cam, however, need not provide only incriminating evidence.

Dash cams are objective. Unfortunately, officers are not. Dash cams record what occurred as it occurred. Unfortunately, officers write their police reports hours after the incident occurred and well after their memory of the incident begins to fade.

The dash cam recording typically captures the suspect’s driving prior to the stop, the stop, any field sobriety tests performed, conversations between the officer and the suspect, and the arrest. Believe it or not, dash cam footage can and oftentimes directly contradicts the arresting officer’s report.

Law enforcement needs probable cause of a traffic violation to initiate a traffic stop, which is usually the first step in the DUI investigation process. Absent probable cause, a driver cannot be pulled over. Unfortunately, many officers fabricate the probable cause for stop, claiming that a driver never used a blinker, or they were swerving, or they ran a stop sign, so on, so forth. The dash cam, however, can show that there was no probable cause for the stop. It can show that the blinker was used, there was no swerving, and the driver did stop at the stop sign.

Once the stop is initiated, it can quickly turn into a DUI investigation when the officer notices the driver’s slurred speech, or so they claim. The dash cam can capture the driver speaking perfectly fine.

Before officers can arrest someone for DUI, they must have probable cause that the driver was driving drunk. How do they obtain the probable cause? Officers use field sobriety tests, as unreliable as they may be. And although a person may perform well on the tests, it is not uncommon for officers to claim in their report that the driver failed the tests. The dash cam can capture the driver performing well on the field sobriety tests.

Officers often claim that a suspect resisted arrest. Dash cam can show that officers are sometimes the aggressors. According to “Good Morning America,” such was the case with 30-year-old Marcus Jeter from New Jersey, who was cleared of resisting arrest and assault when a dash cam video showed that the arresting officers were the aggressors.

Unfortunately, even in those agencies which used dash cams, some officers are finding their own ways to cloud the transparency that dash cams provide.

I recently defended a case where the officers claimed that the DUI suspect “failed” the field sobriety tests without explaining how. I seriously questioned the veracity of the officer’s extremely vague (yet not uncommon) accusations. My client was 6’ 3”, 220 lbs., a regular drinker, and his blood alcohol content was alleged to be 0.08 percent.

Surely, the dash cam would show my client performing well on the field sobriety tests. He very well may have, but I would not have known because the officer took my client out of camera view to perform the tests.

Fortunately for my client’s case, the prosecutor recognized that the officer was merely attempting to circumvent the accountability of the dash cam. In fact, she disclosed that this is not an unusual tactic for officers. She also acknowledged that such tactics place prosecutors in a difficult position when prosecuting DUIs. Understandably, it must be difficult to endorse an officer’s extremely vague police report when the officer attempts to hide the truth. 

People suspected of driving under the influence should seek to obtain a copy of the dash cam footage if it is available. It could prove to be helpful in defending a DUI case. Remember, unlike officers, dash cams can't lie.

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Will the Officer Really have Me Recite the Alphabet Backwards?

Wednesday, April 9th, 2014

(Please welcome guest blogger, Jon Ibanez!)

During conversations about field sobriety tests, I can’t even tell you how many times someone has said, “I can’t even recite the alphabet backwards while sober!” My response is that they’re right, which is why officers don’t usually ask a person to perform this task as a field sobriety test during a California DUI stop. But they can.

If the alphabet is used at all as a field sobriety test, the officer may ask a DUI suspect to recite the alphabet forward without singing. Or they may be asked to recite the alphabet forward with their eyes closed. The officer will then look for the presence of impairment indicators. These indicators include the following: Whether the DUI suspect improperly states the alphabet, whether the DUI suspect sways, opens their eyes, or needs to use his or her arms for balance.

Like other field sobriety tests, the alphabet is a divided attention test. This means that the test requires a DUI suspect to divide their attention between a mental task and a physical task.

The alphabet test is not often used because it is not endorsed by the National Traffic Safety Administration (NHTSA). This means that it is not supported by research and does not meet requirements for standardization. In other words, the alphabet test is so unreliable that the NHTSA refuses to endorse it.

Since the alphabet test is not endorsed by the NHTSA, there are no set guidelines for which an officer can administer it. Some officers may have a DUI suspect begin reciting the alphabet beginning on an arbitrary letter such as “J.” Other officers may have the DUI suspect stop at an arbitrary letter. And some may have the DUI suspect say the alphabet backwards!

Forget trying to say the alphabet backwards, the NHTSA has determined that the alphabet (forward) test fails to differentiate between drunk drivers and sober drivers.

Amongst other criticisms, the alphabet test does not account for people whose first language may not be English, people who may not have had to recite the alphabet since they were in grade school, or those who are illiterate.

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Can Diets Cause Higher Breathalyzer Readings?

Wednesday, March 5th, 2014

I’ve written in the past about how most so-called "breathalyzers" do not measure alcohol:  they actually measure the presence of the methyl group in chemical compounds.  One of those compounds is ethyl alcohol (aka ethanol), and the machine simply assumes that the detected compound is ethyl alcohol. 

Problem:  there are thousands of compounds containing the methyl group — of which over one hundred have been found on the human breath.  Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days afterwards.  And I’ve posted that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the methyl group. 

However, you don’t have to be a diabetic to have high levels of acetone:  scientific research has established that acetone can exist in perfectly normal individuals at  levels sufficient to cause false high breath-alcohol test readings.  See "Excretion of Low-Molecular Weight Volatile Substances in Human Breath:  Focus on Endogenous Ethanol", 9  Journal of Analytical Toxicology 246 (1985). 

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone.  Studies have concluded that fasting can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds).   See "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3  Alcohol, Drugs and Driving 1 (1987).  And low-carbohydrate diets, such as Atkins, have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that mouth alcohol and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven effective.) 

How reliable are breathalyzers?  "Close enough for government work".  As I’ve posted, there seems to be a growing trend toward using blood rather breath analysis, including in some states letting officers draw the blood themselves (in at least two states, at the scene of arrest).  Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are increasingly turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….
 

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State Supreme Court: Cops Can Ignore Field Sobriety Tests – If Suspect Passes Them

Wednesday, February 26th, 2014

The latest in the DUI "double standard" department:


Tennessee Supreme Court Says Cops Can Ignore Field Sobriety Tests

Supreme Court of Tennessee rules that cops may arrest an individual even after he passes all sobriety tests

The Newspaper.com.  Feb. 24 — The Tennessee Supreme Court decided on Thursday that the only use for roadside sobriety tests is to collect evidence against motorists, using them to convict individuals for driving under the influence of alcohol (DUI). The high court justices overturned an appellate decision from 2012 that found a driver who passed six of the tests with flying colors should never have been arrested (view 2012 ruling). David D. Bell was arrested on May 13, 2009, even though the trial judge found no evidence of impairment in the sobriety tests when he reviewed the dashcam footage.

"I honestly think that he did pretty dog-gone good on the field sobriety tests, better than most I've seen," Sevier County Circuit Court Judge Rex Henry Ogle observed. "I couldn't pass them as well as he did."

On that early morning in 2009, Bell had stopped by the The Roaming Gnome Pub and Eatery located in Sevierville and had a few drinks. He made a mistake and ended up on the wrong side of the road when Sevierville Police Officer Timothy Russell came upon him. On the roadside, Bell performed the four-finger count, recited the alphabet from G to S, and identified for Officer Russell in what year he turned six. Officer Russell rated his mental acuity as "excellent." Bell also passed the one-leg stand and the walk-and-turn test.

Despite the performance, Officer Russell decided to arrest Bell. Bell moved to suppress the evidence against him, arguing that there was no probable cause for his warrantless arrest. Seeking a conviction, the Supreme Court justices looked to several other states for sympathetic rulings.

"We recognize that not all courts that have addressed this question have reached the same conclusion as the Delaware Supreme Court, the Alaska Court of Appeals, the Minnesota Court of Appeals and the Pennsylvania Commonwealth Court," Justice William C. Koch Jr wrote. "However, we have determined that the approach employed by these courts is entirely consistent with our holdings that determining the existence of probable cause to support a warrantless arrest is not a technical process. Rather, it is a process requiring reviewing courts to conduct a common-sense analysis of the facts and circumstances known to the officers at the time of arrest… we find that performance on field sobriety tests is but one of the many factors officers should consider when deciding whether to arrest a motorist for DUI or similar offenses without a warrant."

The justices reasoned that under the totality of circumstances, passing the sobriety tests is insufficient to cancel out the effect of other indications of intoxication, including the smell of alcohol and a traffic violation. For this reason, the court reversed the lower court findings and agreed with prosecutors that Officer Russell had probable cause to arrest Bell for DUI and ordered the charges to be reinstated against him. The justices noted that Bell may use his performance on the sobriety tests to raise reasonable doubt of his guilt at trial.

Of course, if the field sobriety tests had been failed, they would have been offered in trial as conclusive, scientifically-based evidence of intoxication.  But apparently they should be ignored if they are passed.  I think this is called a "no-win" scenario for the accused.

(Thanks to Ari Weiner.)
 

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