“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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Anonymous “Tips” Now Enough to Stop Drivers for DUI

Wednesday, April 23rd, 2014

The U.S. Supreme Court has done it again.

Yesterday, in a typical 5-4 decision, the Court held that an anonymous tip — an unidentified call with absolutely no indication of truth or reliability — was sufficient to justify police stopping a driver on the road and detaining him on suspicion of drunk driving.  Navarette v. California

Amazing.

The Fourth Amendment of our Constitution clearly states that "The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated…but upon probable cause".   In other words, a cop can't just stop a driver on suspicion of drunk driving unless he has "probable cause" — a reasonable belief — that he is intoxicated. 

So, the issue is:  Does a telephone tip from an unidentified source constitute a reasonable suspicion of guilt — even where the responding cop sees no indication of drunk driving?  Or, for example, can an anonymous phone call from a spiteful former wife or a disgruntled neighbor be enough to get you pulled over by the police and subjected to a DUI investigation?

As I've said so many times on this blog, there exists a DUI Exception to the Constitution — and there is no better example of this than the Supreme Court holding in Navarette.  But it's easy for some to ignore these destructions of our constitutional rights, since they only apply to those "drunk drivers", right?  The problem is, as I've also repeatedly written, we are a nation of legal precedent : a loss of constitutional protections in a DUI case will be used as a precedent in any other criminal case.  See my post, Who Cares About the Rights of Those Accused of DUI?.  


Clarence Thomas vs. Antonin Scalia on 4th Amendment and 'Reasonable Suspicion'

Washington, DC.  April 22 - The U.S. Supreme Court handed down a major ruling today with profound implications for the Fourth Amendment rights of all persons who drive or ride in automobiles on public roads. At issue in Navarette v. California was a traffic stop prompted by an anonymous call to 911 claiming that a truck had driven the caller off the road. Going by the information supplied in that call alone, the police located a matching truck in the vicinity of the alleged incident and pulled it over on suspicion of drunk driving. That stop led to the discovery of 30 pounds of marijuana stashed in the truck.

The question before the Supreme Court was whether that single anonymous tip to 911 provided the police with reasonable suspicion to stop the truck. Writing for the majority, Justice Clarence Thomas ruled that the "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." While this is a "close case," Thomas acknowledged, it still passes constitutional muster. Joining Thomas in that judgment was Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Antonin Scalia came out swinging against Thomas. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It elevates an anonymous and uncorroborated tip above the bedrock guarantee of the Fourth Amendment. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That state of affairs, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

So even if such a telephone call were reliable — and there is now no longer requirement that it has to be — you can be stopped for suspicion of drunk driving if the caller says that you were…speeding.  Even if  the responding cop sees no evidence that you are intoxicated.

In his dissent, Justice Antonio Scalia wrote further:

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

…and they continue to chip away at our Constitutional freedoms.
 

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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 Dieting Cause False Breathalyzer Readings?

Monday, February 17th, 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 reliable.) 

How reliable are breathalyzers?  "Close enough for government work".  As I’ve posted, there seems to be a growing trend toward letting officers draw blood themselves 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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