Monthly Archives: December 2021
Law enforcement officers rely heavily on field sobriety tests (FSTs) in California to determine if a driver is impaired by alcohol or drugs during a traffic stop. The FSTs may be the only “evidence” an officer collects during a DUI investigation to justify an arrest for driving under the influence. The theory is that poor performance on field sobriety tests indicates alcohol or drug impairment.
However, these “standardized” field sobriety tests are not perfect. Even if the conditions are ideal and the police officer administers the FSTs precisely as directed by the NHTSA guidelines, the results of field sobriety tests can be inaccurate. According to the Instructor Guide provided by the National Highway Traffic Safety Administration, the accuracy levels for the FSTs are:
- Walk and Turn Test – 79% accurate
- One Leg Stand Test – 83% accurate
- Horizontal Gaze Nystagmus Test – 88% accurate
California drivers need to understand their rights regarding field sobriety tests. For example, a California driver does not have to take the field sobriety tests when stopped for suspicion of drunk driving.
California Drivers Can Refuse to Take Field Sobriety Tests
If you are pulled over for drunk driving, the police officer will ask you to take the field sobriety tests. He is looking for signs of impairment based on your performance on the FSTs. California does not impose any penalty for refusing to take field sobriety tests during a traffic stop.
As experienced DUI defense lawyers, we generally recommend that California drivers respectfully decline to take field sobriety tests for several reasons. Primarily, a sober person can fail a field sobriety test for reasons that have nothing to do with alcohol or drugs in their system.
Unlike chemical tests (i.e., urine, blood, or breath test) that determine your blood alcohol content (BAC), the field sobriety test the officer gives you is a subjective review of “signs” that could indicate you are a drunk driver. The officer may have already made up his mind about arresting you for drunk driving. Taking the FSTs gives the police officer additional “evidence” to present to the court that justifies the DUI charges.
Failing field sobriety tests could result in one or more charges under the California Vehicle Code, including driving under the influence and DUID (driving under the influence of drugs).
To help you understand how California field sobriety tests work and how the results can be incorrect, we discuss the standardized FSTs and some non-standard field sobriety tests used by California police officers during a DUI stop.
DUI Field Sobriety Tests Used in California
As discussed above, the NHTSA has approved three field sobriety tests to be used by police officers during a roadside DUI investigation. The NHTSA considers these tests to be good indicators of a person’s impairment.
The NHTSA bases its “validation” of these tests in part on a study by the Sand Diego Police Department. The study reported a strong connection between poor performance on these tests and alcohol or drug impairment. The tests are collectively referred to as the “standardized FSTs.”
The Walk and Turn Test (WAT Test)
This divided attention test requires a person to simultaneously concentrate on a physical and mental task. For the test to be accurate, the police officer must give the person exact instructions for completing the test. The person must remember the instructions and complete them in order correctly.
Generally, the police officer tells the person to take nine heel-to-toe steps in a straight line (either a line on the road or an imaginary line). After completing nine heel-to-toe steps, turn around and take nine heel-to-toe steps back to the beginning point.
There are eight signs that the police officer may notate that could indicate the person is intoxicated or under the influence of drugs:
- Starts walking too soon
- Cannot maintain balance during the instructions
- Fails to walk in a heel to toe fashion
- Uses the arms to balance
- Takes the wrong number of steps
- Stops while walking
- Steps off the line
- Fails to make the turn correctly
This FST has a 79% accuracy rating for indicating a BAC of .08 or greater because of poor performance. There could be many reasons why a person is unable to maintain balance while walking heel to toe.
The Horizontal Gaze Nystagmus Test (HGN Test)
Nystagmus is the involuntary movement or “jerking” of the eyes from side to side, up and down, or in a circle. Horizontal nystagmus describes the uncontrollable and rapid movement of the eyes from side to side.
The HGN test given during a roadside field sobriety test involves the police officer noting the angel of the eye when it begins to “jerk” (exhibit nystagmus) as it moves side to side. The officer performs the test by moving a stimulus, such as a pen, from left to right and instructing the person to follow the object with their eyes.
Nystagmus at or before the 45-degree angle of the eye movement is associated with a high level of alcohol in the person’s system. However, the accuracy level of the HGN test is roughly 88%, according to the NHTSA. Therefore, the results of this field sobriety tests could be incorrect in at least 12% of the cases.
The One Leg Stand Test (OST Test)
This field sobriety test is another divided attention test used during a DUI traffic stop. While this test has a better accuracy rating according to the NHTSA, it still leaves a lot of room for errors.
During the OLT test, the police officer instructs the person to lift their foot about six inches off the ground. While holding that position, count from 1001 to 1030 and then look down at their foot.
Signs of impairment that the officer looks for during the test include swaying, hopping, using the arms to balance, and putting the foot down before completing the test.
Non-Standard DUI Field Sobriety Tests Used by Police Offices
In addition to the “standardized” field sobriety tests, police officers use various non-standard field sobriety tests during a DUI stop. The NHTSA has not approved or validated these tests because there is little to no evidence that poor performance on these tests indicates DUI impairment. Furthermore, the way the tests are administered can vary significantly from one law enforcement officer to another, increasing the chance that the test results are inaccurate.
Several “signs” the officer looks for when performing these non-standard FSTs include:
- Ability to follow instructions, including counting correctly, starting and stopping correctly, and remembering instructions
- Ability to balance and stand still
- Muscle tone and body/eye tremors
- Depth perception
- Uttering unusual phrases or sounds
- Lack of muscle control
- Ability to perform mental and physical tasks simultaneously
Some of the non-standard field sobriety tests used by California police officers include:
Finger Count Test
The police officer instructs the person to extend their hand with the palm facing upward in front of their body. Then, touch the top of the thumb to each finger, beginning with the index finger and working their way over to the little finger. While touching each finger, the person should count from one to four aloud. Then, the process is reversed for a total of three sets.
Finger to Nose Test
This non-standard FST is one of the most common field sobriety tests officers perform. First, a police officer instructs the person to stand with their feet together and their arms at their sides. Then, after making a fist with each hand and keeping the index finger extended, the person must tilt their head back and close their eyes.
The officer then instructs the person to extend either the left or right arm in front of their body and use their index finger to touch their nose. If the person cannot perform the test correctly, it is thought to be a sign of intoxication because the person lacks muscle control and coordination.
Romberg Balance Test
A police officer instructs the person to stand with their feet together, and their head tilted slightly backward. Then, with their eyes closed, the person must estimate when 30 seconds have passed. Finally, when they believe 30 seconds have passed, they will tilt their head forward, open their eyes, and say stop.
Hand Pat Test
The officer instructs the person to extend either the left or right hand in front of their body with the palm facing upward. Then, place their other hand on the top of that hand with the palm facing down.
Keeping the bottom hand in the same location, the person must use the top hand to “pat” the bottom hand while counting “one, two, one, two, etc.” In addition, the person must rotate their top hand on each of the counts so that they pat their bottom hand palm down on the “one” counts and palm up on the “two” counts.
What Can Affect the Accuracy of a DUI Field Sobriety Test?
Many things can affect the accuracy of DUI field sobriety tests. For example, there are several medical reasons why a person would exhibit signs of nystagmus, including multiple sclerosis, head injuries, certain medications, and cataracts.
Numerous physical and mental conditions may affect the accuracy of a test. Age, weight, inner ear problems, mental disabilities, anxiety, physical pain, and illness are just a few examples of why a person could “fail” a field sobriety test when they are not impaired by alcohol or drugs. In addition, being tired, having muscle fatigue from work or exercise, and stress can negatively impact a person’s ability to perform field sobriety tests correctly.
Weather and field conditions can have a significant impact on FST results. For example, if the test is given on an uneven surface, it increases the chance the person will lose their balance. In addition, bright lights from oncoming traffic and noise can affect test results.
The police officer’s conduct can result in inaccurate test results. For example, if the police officer does not provide clear instructions, the person may “fail” the test. Likewise, if the officer moves around, it can distract the person and result in inaccurate test results.
Even something as simple as wearing high heels, tight clothing, or baggy pants could adversely affect a person’s performance on field sobriety tests.
Fighting the Results of DUI Field Sobriety Tests in California
If you are arrested for DUI in California, you should discuss your legal options with a DUI defense attorney before pleading guilty to driving under the influence. There may be one or more grounds for challenging field sobriety tests.
Drunk driving is an incredibly serious offense, and a DUI conviction can lead to not only a suspended license but even jail time. But the stakes are even higher for those under 21, who not only face more stringent BAC requirements than the standard intoxication threshold BAC of 0.08%, but mandatory PAS testing, and the potential of delaying obtaining their license if they do not yet have one.
What Counts as Driving Under the Influence for Drivers Under 21?
Driving under the influence for any person under the age of 21 in California is defined as any person under 21 years old who has a deductible blood alcohol concentration (BAC) of 0.01% or greater. There are additional charges that the driver could face, as well.
How is BAC Measured in California?
The blood alcohol content is officially measured with a blood or breath DUI chemical test. However, when concerning underage drivers or potential underage drinking and driving, the test may consist of what’s referred to as a “PAS” test. PAS stands for preliminary alcohol, and can be conducted in the field, and is considered a roadside test.
The preliminary alcohol screening, and is most frequently measured with a portable breathalyzer test. While those over 21 are given the option to consent to the test if they are suspected of intoxication, those under 21 face an automatically suspended license if they refuse. Additionally, if a driver potentially facing an under-21 DUI refuses the PAS test, they are barred from applying for a restricted license.
The Difference in DUI Offenses In California
There are several different potential offenses that California drivers may face when they either possess or consume alcohol while driving. These range from the under-21 zero-tolerance DUI statute to an enhanced underage DUI charge, and more.
Zero-Tolerance Underage DUI
Under California vehicle code 23136, those who are under 21 and are pulled over for suspected DUI will be asked to submit to a roadside preliminary alcohol screening. If the results of this screening show a detectable blood alcohol content of at least 0.01%, then the driver can face a charge for violation of the zero-tolerance law.
The driver may refuse to participate in the preliminary alcohol screening, however, this will result in an automatic 1-year license suspension. This offense is not considered a criminal charge, it is considered a civil offense.
Underage DUI W/BAC 0.05% Or Higher
California vehicle code 23140 states that a driver under the age of 21 may face more severe penalties for having more detectable alcohol in their system. Unlike the zero-tolerance law, violations of VEH 23140 carry potential criminal charges. If an underage driver is taken into custody and placed under arrest for this offense, they will generally be given a post-arrest DUI chemical test to confirm the BAC.
Penalties for violation and conviction under VEH 23140 can include a fine, as well as license suspension for a full year, as well as a mandatory alcohol education program for those over 18. The alcohol education course will be a minimum of 3 months, often longer.
California vehicle code 23152 is considered a “standard” DUI charge. It is the charge reserved for drivers whose abilities are impaired or compromised due to drugs or alcohol, or for drivers who drive with a BAC of 0.08%. VEH 23152 is a criminal misdemeanor, which can result in criminal penalties upon conviction.
Penalties for conviction under 23152 carry a mandatory suspension of the driver’s license, along with between 3 and 5 years of probation. Fines can range from nearly $400 to $1,000, as well as either a 3-month or 9-month drug or alcohol education program. The driver may also face a potential 6-month jail sentence for repeat offenders.
Underage Possession of Alcohol in a Vehicle
A charge of violating California vehicle code 23224 can be laid if the person under 21 is determined to be in possession of alcohol while in a vehicle. The only exceptions to this are:
- If the container is full, sealed, and unopened
- If they are accompanied by their parent or guardian
- If they are getting rid of the alcohol per an adult’s direction
- If they are transporting it as part of their job while working for someone with a legitimate and valid liquor license
Charges under VEH 23224 are often laid in addition to charges under the zero-tolerance law and are a misdemeanor criminal offense. A conviction can carry penalties of confiscation and impoundment of the vehicle for up to 30 days, fines of up to $1,000, and suspension of the driver’s license for a full year.
Can You Be Charged with Multiple Offenses for Drunk Driving?
In many cases, you can be charged with multiple DUI offenses for a single incident, though there are some stipulations. If you are found to have a BAC of 0.05%, you will likely be charged with both the zero-tolerance law, as well as VEH 23140. If you have a BAC of 0.08% or more, you will likely face charges under the zero-tolerance law as well as VEH 23152.
While drivers can face multiple charges, you can only be convicted of one type of DUI criminal charge per offense. This means that even if you are facing charges under VEH 23136, VEH 23140, and VEH 23152, you may be convicted under VEH 23136, and either VEH 23140 or VEH 23152 but not both.
What is the Penalty for Someone Under 21 Violating the Zero-Tolerance Law?
Since the zero-tolerance law is a civil offense and not a criminal offense, the penalty is less severe than the criminal equivalents. The only penalty that a driver faces for violating VEH 23136 is a mandatory and automatic DMV suspension or revocation of the driver’s license. This is an administrative measure known as a “per se suspension”.
When the officer at the scene cites the driver for the violation, the license will be confiscated and sent to the DMV. The driver will then be given a temporary license that is valid for 30 days. When the 30-day period concludes, the license will be suspended or revoked unless it is formally contested.
If the driver did not have a valid license at the time the offense allegedly occurred, the administrative suspension will prevent the driver from obtaining a license for one year. The suspension was due to a PAS or DUI chemical test refusal, the suspension can also be contested.
Is There Any Way to Fight or Appeal a Zero-Tolerance Suspension?
You can request a hearing to prevent the suspension of your license, but the request must be made within 10 days of the original citation. If you have an attorney, they can also request the hearing on your behalf. This will place a moratorium on the suspension, which will then only go into effect if the driver loses the under-21 DUI hearing.
Most hearings take place via phone, however, you can request an in-person hearing at a DMV regional location. The following issues will be discussed:
- Were you driving the vehicle?
- Were you lawfully detained?
- Did the driver refuse a chemical DUI test or was their BAC over 0.01%?
If your hearing was successful your license will be returned to you and the suspension canceled, if you lose the hearing you must wait until the conclusion of the suspension to reinstate full driving permissions.
What is a Restricted Hardship License?
Drivers convicted of an underage DUI can get a restricted license, also known as a hardship license, which can allow them to maintain some semblance of a normal life following suspension or revocation. Drivers are only eligible for a restricted hardship license if they did not initially refuse the preliminary alcohol screening. Additional requirements include:
- Requiring a vehicle for:
- Transportation due to illness
- Getting to and from school
- Getting to and from work
- A family business that contributes to the family’s income
- All other transportation options being deemed insufficient by the DMV
Those drivers who are determined to be eligible for the restricted hardship license must still serve the mandatory initial 30-day suspension following the DUI.
Can My License Ever Be Reinstated After a Zero-Tolerance Conviction?
The suspension or revocation received after conviction for underage DUI under the zero-tolerance law can be reversed and the license reinstated, following the conclusion of the suspension or revocation period. The automatic DMV suspension can be reinstated by taking the following steps:
- Paying a mandatory $100 fee to the DMV to reissue the license
- Filing proof of insurance and financial responsibility with the DMV, known as an SR-22
- Maintaining proof of continuous financial responsibility for three years
Are You Facing Charges Under the Zero-Tolerance Law?
If you or someone you know may be facing potential penalties for under-21 DUI in Los Angeles or anywhere else in California, one of the first things you should do is to contact a defense attorney. Working with an experienced DUI defense lawyer can be your best chance at minimizing the penalties while giving you a powerful advocate for the entire process. Reach out today to discuss your case details confidentially.
If you live in another state and get a DUI in California, you might find it inconvenient to have to attend an in-person California DUI school as a part of your sentence. Ordinarily, the California Department of Motor Vehicles (DMV) requires people convicted of DUIs to enroll in and complete DUI driving school here in California.
A non-resident can request a waiver of the California in-person DUI school requirement by filing a 1650 waiver request. If you do not attend and complete an in-person DUI program in California and do not request and receive a waiver, your home state can deny you a driver’s license. Your only option then is to make repeated trips back to California to complete the DUI school.
How to Request a 1650 Waiver
You will have to wait until you are eligible to request that the California DMV terminate your DUI suspension or revocation. If the California DMV grants your request, you would not have to attend driving school in this state, and you will be able to apply for a license in your state of residence.
You must meet all of these conditions to be eligible for a termination of action as a non-resident:
- Any suspension or revocation of your driving privilege is no longer in effect.
- If you had any Administrative Per Se restrictions on your driver’s license, all such restrictions are no longer in effect.
- You are no longer ordered by the court or the California DMV to have an ignition interlock device (IID) or any other court-ordered or DMV-ordered restrictions.
- You have paid all applicable administrative service fees.
You can check your driver’s record to verify these factors. You may request this information by telephone, online, or by regular US mail. After verifying that you have met all of the conditions, you will need to file an application for termination of action (DL4006) with the DMV, along with acceptable proof of out-of-state residency, payment of fees, and proof of financial responsibility, if required.
Application for Termination of Action (DL 4006)
The Application for Termination of Action must get sent to the Mandatory Actions Unit of the California Department of Motor Vehicles (DMV), with all the required documents and attachments. Before the termination of action under California Vehicle Code (CVC) section 13353.5 can happen, the Mandatory Actions Unit must verify that the applicant has met all of the conditions and requirements.
The applicant must swear under penalty of perjury that the individual is not a resident of California. Also, the applicant must voluntarily authorize the California DMV to cancel the individual’s California driving privileges if the DMV terminates the suspension or revocation as requested. It usually takes the California DMV a month or two to process the waiver packet.
Documents the DMV Will Accept as Proof of Out-of-State Residency
The DMV provides a list of 18 different kinds of documents they will accept to prove that you do not live in the state of California. You must submit at least one of these papers with your DL 4006 form.
A few examples of the acceptable out-of-state residency documents for the 1650 waiver form (DL 4006 form) include:
- A home utility or cell phone bill
- Official voter registration documents
- A mortgage bill
- A rental or lease agreement signed by both the owner/landlord and the tenant/resident
- An employment document
- A property tax bill or statement
- A change of address confirmation by the US Postal Service
Whichever document or documents you choose to submit to show out-of-state residency must show your current out-of-state address that is the same as you provide on your DL 4006 form.
What is Proof of Financial Responsibility?
Proof of financial responsibility in the context of driving means that a driver has automobile insurance that will pay the losses of people who get injured or property that gets damaged as a result of the driver. California tries to protect the general public from people exercising the privilege to drive without being financially responsible to people they might harm.
The DMV might require you to provide a California Insurance Proof Certificate (SR 22) from an insurance company authorized to do business in California. If your insurance is from a company not authorized to do business in California, the DMV will only accept that insurance document if you send in a Declaration Regarding Certificate of Insurance for Non-Resident Driver. That declaration is on the DL 300 form, California Proof Requirements for Non-Residents.
Who Needs a 1650 Waiver?
If you were a non-California resident and you got convicted of a “wet” driving offense, like:
- Driving under the influence, Vehicle Code 23152(a),
- Driving with a BAC of 0.08% or higher, Vehicle Code 23152(b)
- Underage DUI with a BAC of 0.05% or higher, Vehicle Code 23140
- “Wet reckless,” Vehicle Code 23103.5
You will have to enroll in and complete an in-person California DUI driving school unless you get a 1650 waiver of that requirement. A 1650 waiver comes with significant consequences. For starters, once you use a 1650 waiver, you can never get a second waiver in your entire lifetime.
Also, you will not be allowed to drive in the state of California for three years, even if you become a California resident. If you do move to California, you will have to complete the DUI school before the DMV will issue you a California driver’s license.
Consequences in Your Home State
Getting an out-of-state DUI conviction does not let you fly under the radar in your home state. The California court will notify a non-resident’s home state of the conviction. Also, the DMV in California will suspend your California non-resident driving privileges.
You can face negative repercussions in both states, California and your home state, after getting convicted of a DUI here. Your state will treat the California conviction as if it happened in your home state.
Your home state is allowed to impose its own penalties on you, even if they are more severe than the penalties the California court assessed. Typically, your home state will not allow you to drive legally using that state’s driver’s license until you satisfy all of the penalties of the California conviction, which include the DUI program requirements of the DMV. One of the program requirements is the California DUI school.
Can I Attend a California DUI School Online?
Generally, no. A person convicted of a DUI in California must attend a licensed DUI program unless the individual obtains a 1650 non-resident waiver. The Department of Health Care Services (DHCS) evaluates, licenses, and monitors the compliance of all California DUI programs. The Behavioral Health Licensing and Certification Division, Driving-Under-The-Influence (DUI) Section is the specific aspect of the DHCS that performs these tasks.
You cannot simply enroll in any DUI school or program. The DUI school must be California-licensed to satisfy the penalties under your conviction. DUI school hopes to give participants an opportunity to address their problems with using alcohol and drugs, and to reduce the number of second and subsequent DUI offenses by individuals.
California DUI Programs
There are multiple levels of DHCS licensed DUI programs. For example:
- If you get convicted of reckless driving and you had a measurable amount of alcohol in your bloodstream, you must complete the “wet reckless program,” which is a 12-hour DUI education program.
- For a first-offense DUI conviction, the DMV requires the completion of a three-month 30-hour alcohol and drug education and counseling program. If the first offense was for a blood alcohol content of 0.20% or higher, the individual must complete a nine-month 60-hour alcohol and drug education and counseling program.
- If a person gets a second or subsequent DUI conviction, there is a mandatory 18-month multiple offender program. The program includes 52 hours of group counseling, 12 hours of alcohol and drug education, six hours of community reentry monitoring, and biweekly individual interviews during the 12 months of the program.
- For a third or subsequent DUI conviction, a county may choose to impose 30-month DUI programs, with 78 hours of group counseling, 12 hours of alcohol and drug education, 120 to 300 hours of community service, and close and regular individual interviews.
The high level of involvement and time required by California DUI programs make it difficult for someone who lives in another state to participate in and complete the program requirements.
COVID-19 FAQs for DUI School
During the COVID-19 pandemic, the state of California enacted measures to reduce exposure to the virus, including suspending or limiting DUI program services. Anyone participating in program services or wanting to enroll in the program could find limitations on the program due to COVID-19 restrictions. The DHCS supported telehealth services for DUI programs to minimize the spread of COVID-19.
Are There Additional Penalties for a DUI Conviction in California?
Yes, and you do not get to avoid these consequences just because you are not a California resident. Also, keep in mind that your home state can impose additional penalties. In California, a first-time DUI conviction could include these penalties:
- DUI school
- A six-month driver’s license suspension period
- Up to six months in county jail
- Installation of an ignition interlock device (IID) for six months
- Fines and penalties adding up to as much as $1500 or $2000
- DUI probation of 3 to 5 years
- Work release
Getting a DUI conviction can impact your life in many other ways. You will want to work with a California DUI attorney to protect your rights if you get arrested for drunk driving.
When a police officer pulls you over for suspected driving under the influence (DUI), it can be a nerve-wracking experience, even if you are completely sober. After collecting your license, insurance, and registration they will often ask you to exit the vehicle and will begin conducting one of several DUI field sobriety tests. No matter where you get pulled over, from San Diego to Los Angeles or anywhere else in California, you can expect to have to perform a standardized field sobriety test.
There are several types of field sobriety tests that can be administered during a traffic stop, and one of the most common is known as the walk and turn test. It is also called the 9-step test, and the DUI walk the line test. This is due to the number of steps that the law enforcement official administering the test will have the driver take before turning.
We’re going to take a more in-depth look at this test, including how it is conducted, what the rules are, what the officer will be looking for, and overall how reliable this and other tests may actually be.
Suspected DUI Offenders & Field Sobriety Tests
The primary reason that the walk and turn test is used is that it requires divided attention. This means that the task requires the suspect to maintain attention on both mental and physical tasks which are exceedingly difficult at the point of intoxication. The walk and turn test was designed specifically to require the suspect to listen, remember, and properly execute instructions while engaging in physical movement.
The walk and turn are just one of the standardized field sobriety tests that have been established by the NHTSA, or National Highway Traffic Safety Administration. The tests are now considered standardized because they have been studied and backed up with statistical evidence over the years. It has been found that they have a strong correlation between test failure and impairment.
There is also the HGN test and the leg stand test. The HGN test is for the evaluation of horizontal gaze nystagmus, which is an involuntary movement of the eyes while following a point of focus along a horizontal plane in their field of vision. The leg stand test tests the subject’s balance while answering questions.
The walk and turn is considered the second most reliable test that the NHTSA has sanctioned. The HGN test is often seen as the most reliable since nystagmus cannot be easily controlled. The leg stand test is seen as the least reliable of the three standardized field sobriety tests.
Instructions for the Walk and Turn Test
The National Highway Traffic Safety Administration has outlined a set of standardized instructions for law enforcement to be equipped to correctly and competently administer the walk and turn test. The steps are as follows:
- Have the suspect stand heel-to-toe during the instructions.
- Demonstrate placing your left foot on the line.
- Demonstrate placing your right foot on the line ahead of the left foot, with the heel of the right against the toe of the left.
- Demonstrate placing and keeping arms down at your sides.
- Advise the suspect to maintain this position until the end of the instructions and the test begins.
- Verify that the suspect understands the instructions.
- Advise the suspect that when they are told to start, they are to take 9 heel-to-toe steps, then turn, and take 9 heel-to-toe steps back.
- Demonstrate how to pivot on one foot while taking small steps with the other to effect the turn.
- Advise the suspect that while they walk they are to keep their arms at their sides, watch their feet, and count the steps out loud.
- Advise the suspect that once they start walking they are not to stop until finished.
- Verify once more that the suspect understands.
- Advise the suspect to begin, counting from the first heel-to-toe as “one”.
What the Officer is Looking for During a Walk and Turn
The walk and turn test is intended to be most effective with drivers suspected of having a BAC of 0.10% or greater. This level of intoxication will often create a series of scorable mistakes. These clues are each worth 1 point, with the exception of a failure to finish, which is worth 9 points. A suspect only needs 2 points to be classified by the law enforcement agent as DUI.
Each clue will have acceptable and unacceptable variances. Those that are acceptable should not be scored, while those that are over the threshold of acceptance should be scored.
Unable to Maintain Balance During Instructions
Scoring this clue occurs if the suspect is unable or unwilling to maintain the heel-to-toe posture for the duration of the instructions. The officer should not consider this a score if the suspect uses arm movement for balance, or sways but stays in position.
Begins Before Instructions Are Complete
The suspect gets a point for this clue if they begin the test before the officer’s instructions are complete.
Stops Walking to Regain Balance
Stopping for more than a second or two is considered a scorable event, however, the suspect should not be scored if they are simply walking slowly.
Fails to Touch Heel-To-Toe
One point is earned for this clue if the suspect is unable to meet the heel-to-toe requirement by leaving a gap of 0.5” or more on any step. This will also be scored for not walking straight along the line.
Leaves the Demarcation Line
If at any point the suspect leaves the line, they get a point. However, this item can only be scored once even if the mistake is made several times.
Use Arms to Balance
This point is scored if the arms raise more than 6” from the at-sides position to maintain balance. No exceptions.
Loses Balance During Turning
During the turn, if both feet leave the line it is scored. This will also be scored if the turn is not a multi-step pivot as detailed in the instructions, and is instead a one-movement turn.
Taking More or Less Than 9 Steps
This clue is scored if the suspect fails to take 9 steps.
Unable to Complete the Test
If the suspect leaves the line 3 or more times or falls, they have demonstrated a failure.
Appropriate Testing Conditions
The officers are legally required to ensure that the test is conducted in an area or location that allows the test to be completed in a fair and safe manner.
There should be adequate lighting, demonstrated by the suspect being able to see the officer and understand their directions and demonstrations.
The surface should be relatively flat, hard, level, and non-slip. There should be enough room to take the required steps, and there should be no danger of falling or tripping.
The test requires a line or other mark to follow. If there are no lines in the road, the officer may draw one with chalk, draw in the dirt with a stick, or may use a parallel walk along a curb if needed.
Reliability of Field Sobriety Tests Like the Walk and Turn
There are many factors that can impact the effectiveness and accuracy of the walk and turn test, and the NHTSA data shows nearly one in three people fail who are not under the influence.
Impact Of Mental & Physical Impairments or Disabilities
Common reasons for lower reliability include elderly suspects or those who have problems with various parts of the body. There can also be issues with extremely small suspects or those who are obese, as these impairments along with countless others may cause clues to be scored inaccurately.
One of the most important criteria of the walk and turn test is the surface. If the officer does not conduct the test on a flat, level, dry, non-slip surface, the score and ultimate determination of the test are reduced to worthlessness.
The test should be conducted in an area where the suspect is able to concentrate and is not distracted by heavy traffic, close vehicles, excessive honking, or sirens. The officer is also supposed to be motionless during the test, and if they choose to walk around the suspect or interfere in any way then the test may be invalidated.
Problems With Clothing or Shoes
Sometimes clothing can prevent an issue to proper completion. High heels over 2” should be removed, and any restrictive or excessively baggy clothing may cause a failure as well.
Facing Charges Stemming From a Walk And Turn Test?
If you or someone you know was given a field sobriety test and subsequently faced DUI charges, it is imperative that you get in contact with an experienced, local law firm that can help keep your rights preserved. Reach out today to discuss the details of your case in a confidential environment, and build an attorney-client relationship that advocates for you.
Drinking and driving is a serious offense, and facing DUI charges can be complex and intimidating. In some cases, the defendant may have an attorney who is able to help them reach a plea deal with the prosecution or avoid the charges entirely. However, there are some instances where the defendant may feel overwhelmed or just uninformed and might be considering pleading guilty or no-contest by agreeing to a Tahl waiver.
Tahl waivers are meant to be a record of informed consent that the defendant is entering into a plea of guilty or no-contest voluntarily and with full knowledge of the rights, they are waiving. Additionally, they are an informative tool to ensure the defendant is aware of the potential consequences of waiving their rights.
It is incredibly important that a Tahl waiver be completed properly, signed by the defendant, and submitted in accordance with the requirements of the court, otherwise, it may be deemed defective. This can result in an invalid plea agreement and is why defendants are often questioned extensively by the presiding judge to ensure their understanding and agreement.
What is a Tahl Waiver?
A Tahl waiver is named for the case in which it was established. The California Supreme Court decided in 1969, in the case of In re Tahl that a defendant must “knowingly and voluntarily” waive several of their rights in order for a plea of guilty or no-contest to remain valid.
Occasionally during criminal proceedings in California, the defendant will make the decision to plead guilty or no-contest to their charge or charges. In this situation, the defendant must acknowledge that they have certain rights guaranteed to them by the constitution and that they are waiving these rights. This waiver is known as a Tahl waiver.
In most cases, the Tahl waiver will be a formal, written document. It will not only detail the individual rights they are waiving, as well as the potential consequences of waiving those rights, but it will also have the defendant’s signature as an acknowledgment and agreement. The waiver is then reviewed by the judge and confirmed with the defendant affirming their decision in open court.
What is the Purpose of Tahl Waivers?
Tahl waivers are crucial during criminal proceedings, for example, charges of murder or driving under the influence, because it is incredibly important that the defendant knows what they are committing to when waiving their rights.
The waiver is a tool for the presiding judge to ensure that:
- The accused is aware of their rights
- The accused understands that they are not being forced or coerced into waiving their rights
- The accused knows and understands the consequences of the waiver
In most cases, the court cannot even accept a plea of guilty or no-contest if there is no valid Tahl waiver in effect. This reaffirms that the defendant is cognizant of the terms of the waiver and that the plea is completely voluntary. California defense attorneys are well-versed in Tahl waivers.
Rights That Are Given Up With a Tahl Waiver
There are three main constitutional rights that a Tahl waiver is created to waive. The defendant is made aware of these rights during the process of creating the Tahl waiver before the jury trial begins, and they must be fully informed on the potential results of waiving these rights.
The 3 significant constitutional rights waived with a Tahl waiver are:
- The right against self-incrimination, which is guaranteed by the 5th amendment
- The right to confront witnesses, ensured by the 6th amendment
- The right to a jury trial, which is also guaranteed by the 6th amendment.
Additionally, Tahl waivers will also remind and reaffirm with the defendant that they still remain innocent until proven guilty, and that the prosecution still carries the burden of proving beyond a reasonable doubt that the defendant is guilty.
Defective Tahl Waivers and Their Effects
Completing or performing a Tahl waiver is vital to the criminal process, and if the accused has not officially completed one to the satisfaction of the court, any pleas of guilty or no-contest that they enter may not be valid. This also is the case if the Tahl waiver was completed incorrectly or the accused was not made aware of the consequences of waiving their rights.
To avoid this, the judge presiding over the case will frequently discuss the Tahl waiver with the accused. The judge will generally:
- Advise the accused orally in open court of their rights, and that the Tahl will waive those rights
- Confirm that the defendant does understand and wish to waive the rights
- Confirm that the accused still intends on entering a plea of guilty or no-contest
- Confirm that the defendant was not coerced, forced, or otherwise placed under duress to enter the plea
- Confirm that the accused is entering the plea knowingly and of their own free will
How Can a Tahl Waiver Be Submitted?
For cases featuring misdemeanor charges, the Tahl waiver can be created and executed before the court proceedings. The attorney can provide the TAHL waiver to the court and plead without the client present appearance, as long as it is notarized. However, some judges do not allow this.
What if the Defendant Changes Their Mind?
Sometimes, even after going through the process of entering a Tahl waiver and subsequent guilty or no-contest plea, the defendant decides to withdraw their plea. This is permitted under California Penal Code section 1018, provided some prerequisite conditions are met. The accused must show good cause for withdrawing the plea, and they must file a Motion to Withdraw a Plea.
Showing “good cause” means that the defendant must demonstrate that the plea they entered into previously was the result of some complication. This is often defined as a factor that demonstrates overreach, such as incompetence, inadvertence, ignorance, or mistake. Depending on the circumstances this can be relatively easy to prove, or it can be incredibly difficult.
Once the accused has shown good cause, they must then have the Motion to Withdraw a Plea filed with the court and entered into the record. The motion must be filed either before the defendant is sentenced or within 6 months of a probationary sentence. The motion cannot be filed once a sentence of incarceration has been handed down.
After the defendant shows good cause and either they or their attorney files the Motion to Withdraw a Plea, the defendant must then be given a formal opportunity to withdraw the plea and plead not guilty, if he pled guilty or no-contest without an attorney. Alternatively, if the accused did create an attorney-client relationship and was represented, they may be given a chance to change their plea, though it is not guaranteed as it would be if the conditions were met while they were not represented.
If You Are Charged With DUI and Considering a Tahl Waiver
If you have been charged with a DUI and may be considering waiving your rights to enter a plea of guilty or no-contest, be sure you reach out to a defense attorney in California before committing to anything. While you may be able to withdraw the plea later, there are no guarantees. Additionally, the criminal trial process can be incredibly complex, stressful, and intimidating, so having someone on your side can help the whole process go smoother.
If you contact an attorney to discuss your case in confidence, and they agree to represent you, you will have gained an invaluable legal resource. Not only will your criminal defense attorney form a solid attorney-client relationship with you, but they will be your source of priceless knowledge and experience with the trial process. When it seems like the whole system may be positioned against you when you’re facing charges, an experienced attorney can be a formidable ally and personal advocate.