Category Archives: drunk driving
The Only 3 Effective DUI Field Tests
The Only 3 Effective DUI Field Tests
Police officers use field sobriety tests (“FSTs”) when they stop a driver suspected of being under the influence of drugs and/or alcohol. The three standardized field sobriety tests (“SFSTs”) are considered the most reliable FSTs and the tests recommended by the National Highway Traffic Safety Administration for use by law enforcement agencies. However, police officers also use non-standardized field sobriety tests. Unfortunately, all tests have potential issues that can make the results unreliable.
The Purpose and Types of DUI Field Sobriety Tests
How do police officers use field sobriety tests during DUI investigations in California?
California uses the three standardized field sobriety tests to conduct DUI investigations during traffic stops. The purpose of conducting the tests is to determine whether a driver is impaired. The tests also serve to provide probable cause for a DUI arrest. A police officer must have probable cause to believe the person is intoxicated before making a lawful DUI arrest.
Three tests were chosen as standardized field sobriety tests. Each test has specific instructions and procedures for giving the test to a driver. Any deviation from the procedures could make the test results inaccurate and unreliable. Those three tests are: (1) Horizontal Gaze Nystagmus Test (“HGN”); (2) Walk and Turn Test (“WAT”); and (3) One-Leg Stand Test (“OLS”).
Horizontal Gaze Nystagmus Test (“HGN”)
The Horizontal Gaze Nystagmus Test checks for involuntary “eye jerking” or nystagmus, which occurs when a person looks to the side without turning their head. The severity of the “jerking” increases when a person is intoxicated. An HGN test can also detect when a person has consumed certain prescription medications and illegal drugs.
The police officer performs the test by instructing the person to focus on a stimulus, which is usually a small object, finger, or pen. The officer moves the stimulus horizontally across the person’s line of sight about a foot to 15 inches away. As the driver’s eye follows the object, the police officer watches for signs of increased nystagmus including:
- Inability to follow the object smoothly;
- Distinct jerking at maximum deviation; and
- Substantial eye jerking within a minimum of 45 degrees from the center.
The officer looks for the signs in each eye, checking for six total signs of increased nystagmus.
Walk and Turn Test (“WAT”)
The Walk and Turn Test is the test most people are familiar with due to its depiction in movies and television. During the WAT, a police officer instructs the driver to take nine steps along a straight line, turn around, and then take nine steps back to the starting point. The steps must be heel-to-toe steps. The officer instructs the driver to count the steps out loud as they take each step. The officer watches for eight indications that the person might be impaired:
- Inability to balance while listening to instructions;
- Making an improper turn;
- Beginning to walk before the officer instructs the person to begin the test;
- Taking the wrong number of steps;
- Stopping to regain balance while walking;
- Stepping out of line;
- Failing to touch the heels to the toes; and
- Using the arms for balancing.
The standardized instructions state that if the person displays at least two of the eight indicators, they fail the walk-and-turn test.
One-Leg Stand Test (“OLS”)
The police officer instructs the person to stand still and lift one foot off the ground about six inches. The officer instructs the person to count by one until the officer tells them to stop while holding their foot off the ground. The standardized instructions state the officer should time the suspect and stop them in 30 seconds. The officer looks for four indicators of impairment:
- Hopping during the test;
- Repeatedly swaying during the test;
- Putting their foot down one or more times; and
- Using the arms to maintain balance.
The standardized instructions state that committing two or more of the four indicators means the person failed the one-leg stand test.
Field Sobriety Tests: Potential Problems and Challenges
Even though the above tests are widely considered reliable indicators of driving under the influence, there are many problems with the tests. Critics cite issues with the accuracy and reliability of test results. They also question environmental factors and the actions of police officers that could result in flawed test results.
What Do the Tests Mean if You Fail?
The police officer should refer to their FSTs training to determine if the person “failed” a field sobriety test. As indicated above, specific instructions in the training materials indicate when a person has “failed” the test.
If the officer decides that you failed one or more of the FSTs, the officer will likely state they have probable cause for a DUI arrest. The officer may then ask the driver to take a preliminary alcohol screening (“PAS”) test, which is generally a field breathalyzer machine. A BAC (“blood alcohol content”) level on the breathalyzer gives the officer additional probable cause to make an arrest for DUI.
After a lawful DUI arrest, California’s implied consent laws require individuals to take a chemical test. The police officer should ask the person whether they want to provide a sample for a breath test or a blood test for chemical testing. Urine tests are only used when blood and breath tests are unavailable.
Field Sobriety Tests: Accuracy, Limitations, and Criticism
There are limits to using field sobriety tests during a DUI stop. There are also questions regarding the accuracy of field sobriety tests. Some of the issues that DUI defense attorneys raise regarding the use of FSTs in DUI cases include:
- The accuracy of field sobriety tests;
- Failing to provide clear and correct instructions;
- Environmental factors;
- Medical conditions;
- Being nervous &/or scared; and
- The subjectivity of SFSTs.
The Accuracy of Field Sobriety Tests
Several studies have been conducted on the accuracy of FSTs in determining whether a driver is impaired by alcohol and/or drugs. The NHTSA Instructor Guide for the tests explains that three studies were conducted between 1995 and 1998. The studies were conducted in San Diego, Florida, and Colorado. Each study resulted in different conclusions regarding the accuracy of FSTs.
The Instructor Manual states that officers should use the San Diego Field Validation Study when testifying in court. That study indicated the following accuracy rates:
- HGN tests were 88% accurate;
- OLS tests were 83% accurate; and
- WAT tests were 79% accurate.
Even though the NHTSA claims that the study results provide clear evidence of the validity of standardized field sobriety tests, California DUI defense lawyers disagree. First, these tests are not 100% accurate. Moreover, other scientific tests have shown that the accuracy of these tests is questionable.
One study used sober individuals to perform standardized FSTs. After watching videos of people taking the tests, police officers believed that a significantly larger number of the people were impaired. Another study concluded that the HGN test has a high baseline error and varied greatly depending on whether the person’s BAC level was rising or falling. In 52 videos of DUI arrests, the study authors concluded the HGN test was incorrectly administered 51 times.
Additionally, other factors make the accuracy and validity of the tests questionable.
Failing to Provide Clear and Correct Instructions
The police officer administering the SFSTs must follow the exact procedures for giving the test to a driver. Deviation from the procedures could result in inaccurate results. However, suppose there is no body camera footage, other video footage, or audio evidence that the officer gave the person clear and correct instructions. In that case, there is no way to know if the officer purposefully or unintentionally caused the person to “fail” the field sobriety test.
Numerous environmental factors could invalidate the results of standardized field sobriety tests. For example, the officer should conduct the tests on a level, paved surface. Otherwise, the person may stumble or lose their balance because of the ground, but not because they are impaired by alcohol. Another example is conducting the HGN test with bright lights shining in the person’s eyes from the sun or oncoming traffic. The lights could cause unreliable results.
Another problem to consider is the person’s health condition. A person may have a medical condition that prevents them from passing the test even though they are sober. In addition, a person’s age could cause them to perform poorly on a test even though they are perfectly capable of operating the motor vehicle safely. Physical limitations may prevent someone from “passing” the one-leg stand test or the walk-and-turn test.
Some medications could cause a person to exhibit signs of intoxication even though they are sober and not impaired. For example, some medications for seizures can cause increased nystagmus even though the person is sober. In addition, there are dozens of other possible causes of nystagmus, including hypertension, eye strain, glaucoma, and consuming excessive amounts of caffeine.
Being Nervous and Scared
Merely being nervous about being pulled over and scared of being arrested could cause someone to perform poorly on SFSTs.
SFSTs are Subjective
Whether you fail or pass a sobriety test depends upon the officer’s interpretation of your performance during the tests. In other words, one officer might conclude you were intoxicated and arrest you for drunk driving. Another police officer might conclude that you are not impaired and release you without an arrest. A study conducted using police officers, bartenders, and university community members found that the group had less than a 25% accuracy rate when correctly determining how drunk a person was after observing the targets for several minutes. Furthermore, the accuracy of the ratings worsened as the targets’ level of intoxication increased.
If a police officer has some bias against the person, the officer might unethically or unconsciously interpret the results in favor of probable cause and an arrest. For example, a driver was rude and obnoxious when the officer made the initial traffic stop. The person was critical and uncooperative. In that case, the officer might decide that the person is drunk and make the arrest, even though the results of the SFSTs were borderline.
Non-Standard Field Sobriety Tests
Some jurisdictions also use non-standardized field sobriety tests to determine impairment to support probable cause for a DUI arrest. Police officers claim the non-standard FSTs are reliable because they require the person to utilize split focus and dexterity, which is difficult to do if the person is drunk or drugged. However, these non-standardized tests are unreliable and highly subjective. Some non-standard field sobriety tests used by police officers include:
- Romberg Balance Test – Closing the eyes and tipping the head backward while standing with the feet together, estimating when 30 seconds have passed, and then saying “stop” to the officer.
- Finger-to-Nose Test – Closing the eyes and touching a finger to the tip of the nose.
- ABC Test – Reciting the alphabet forwards or backward.
- Finger-Tap Test – Tap a finger to your thumb as fast as possible with an opening between taps as wide as possible.
- Numbers Backward Test – Counting backward.
- Stand and Gaze Test – Standing and leaning so that the person gazes at the sky while holding their arms to their sides.
- Hand Pat Test – Extend an arm out with the palm facing up and out. Place the other hand on top of the raised palm facing down. Rotate the hands 180 degrees to pat the bottom hand with the back of the other hand before rotating and doing it again while counting “one” and “two” each time.
The NHTSA does not recognize these tests as reliable indicators of whether a person is impaired by alcohol and/or drugs. A skilled California DUI defense attorney will challenge these test results in court. Challenging non-standard field sobriety tests is easier because they are not widely accepted as accurate indicators of intoxication or impairment.
Field Sobriety Test Refusals – Drivers Aren’t Required to Participate in Field Sobriety Tests
No California law punishes a person for refusing to take a field sobriety test. However, a police officer will not tell you this detail. Instead, the officer will only ask you to perform the tests without indicating that you may refuse the test without punishment. Understanding your right to refuse to take a field sobriety test is essential because sober people can fail the tests.
However, there is a difference between field sobriety tests and chemical tests for BAC levels. California’s implied consent laws require drivers to submit to a chemical test of their blood or breath after a lawful DUI arrest. Refusing a chemical test after a DUI arrest results in an administrative driver’s license suspension by the California Department of Motor Vehicles (“DMV”). Your driving privileges are suspended for one year for a first-time refusal of a chemical test. A second refusal within ten years results in a two-year revocation of your driver’s license.
However, if you are under 21 years old or on probation, refusing a chemical test after a DUI arrest of a preliminary alcohol screening (“PAS”) test after being detained results in a one-year driver’s license suspension for the first refusal and two-year revocation for a second refusal within ten years.
California Vehicle Code §23612 states that an officer must advise you that refusing the chemical test could result in a suspension of your driving privileges. Your California DUI attorney might be able to successfully argue against the DMV administrative license suspension if the officer failed to provide the required advisements.
How Field Sobriety Test Results Are Used in Court & Challenging FSTs Results in California
The prosecution uses the results from field sobriety tests in court in several ways. First, the prosecutor may use the FSTs to support the finding that the police officer had probable cause to arrest you for driving under the influence.
If you are charged with driving under the influence, the prosecutor uses field sobriety tests to support the allegation that you were too impaired to drive. This situation often occurs when the driver refuses to take a chemical test. The state does not have evidence of the BAC level at the time of the arrest. Therefore, it must prove that your ability to operate the vehicle was impaired.
When you are charged with DUI per se, the state has BAC test results showing that you were driving with a BAC over the legal limit. Generally, the BAC test results are sufficient to prove the state’s case if there is no valid DUI defense to convince the jury you were not drunk or under the influence of drugs. However, a prosecutor might use the FSTs results as additional evidence you were drinking and driving.
A skilled California DUI lawyer challenges the results of standardized FSTs in court. The attorney might challenge the results in one of several ways including:
- Challenging the reliability of the tests based on data showing a considerable margin for error. The attorney might hire an expert witness to provide testimony regarding the accuracy of the test.
- Providing evidence that the law enforcement officer failed to administer the standard FSTs according to the procedures in the NHTSA manual.
- Offering evidence proving that the test results were negatively impacted by a medical condition, legal prescription medications, or environmental factors.
- Your clothing, lack of sleep, muscle fatigue, advanced age, injuries, weight, or other extraneous conditions caused poor performance on the FSTs.
- The officer administered non-standardized field sobriety tests.
There could be other challenges and DUI defenses in your case. Schedule a free consultation to talk with a DUI lawyer about potential defenses to drunk driving charges.
Talk to a California DUI Defense Attorney
Fighting DUI charges begins with hiring an experienced DUI defense attorney. Contact a criminal defense lawyer for a free consultation to discuss your case. Most attorneys offer a free consultation so that you can get answers to your questions about DUI defense and your legal rights to make an informed decision about how you want to proceed with your DUI case.
Schedule a free consultation with one of our expert California DUI attorneys here.
Interested in this topic or want to learn more about DUIs in California? Check out our blog, which is updated regularly!
What Happens to Your Vehicle After a DUI Arrest in CA?
Driving under the influence in California has immediate and long-term consequences. After a DUI arrest, the police officer seizes your driver’s license. In addition, depending on the circumstances of your arrest, the police officer may impound your vehicle after a DUI arrest.
After your car is impounded, understanding your legal rights can help you get your car back quickly. However, be prepared to pay an impound fee and possibly install an ignition interlock device (IID) if you want to continue driving on a restricted driver’s license.
When Do Police Officers Impound Vehicles After a DUI Arrest?
If a police officer arrests you for drunk driving, the question arises of what to do with your vehicle. Leaving a vehicle on the side of the road is rarely an option. California Vehicle Code §22651 gives police officers authority to remove vehicles if they take you into custody.
Generally, police officers are required to have vehicles towed to the police impound lot when:
- Your vehicle is evidence or part of a crime scene (i.e., a DUI accident involving injuries or fatalities)
- The vehicle’s condition does not permit someone to drive it safely
- There are no nearby locations to park and leave your car legally and safely
- You have prior DUI convictions on your driving record during the past ten years
However, a police officer may not automatically impound your car if you have a prior DUI. The officer might not take the time to review your driving history during a DUI traffic stop. Instead, the officer might focus solely on the current drunk driving offense.
If the law does not require a police officer to impound your vehicle, your attitude during the DUI stop can significantly impact the officer’s decisions regarding vehicle impoundment.
The police officer may allow a sober passenger to drive the vehicle. Officers might pull your vehicle to a safe location at a DUI checkpoint. However, someone must pick up your vehicle before the end of the DUI checkpoint. Generally, only the registered owner can pick up a car at a DUI checkpoint. However, the officer might allow you to designate someone to pick up your vehicle if you are the registered owner.
An officer could offer to drive your vehicle a short distance to a parking lot or other safe location. However, if you are belligerent, disrespectful, and uncooperative, the officer is unlikely to “see” a safe parking location nearby the traffic stop.
Can the Court Impound My Car After a DUI Arrest in California?
Yes, the court may impound your vehicle as part of the DUI penalties. For a first-time DUI conviction, the judge may order your car to remain in the impound lot for up to 30 days or not at all. A second DUI results in impoundment for up to 30 days. After three or more DUIs, the court can impound your vehicle for 90 days.
Having your vehicle impounded after a DUI in California is expensive. Whenever possible, try to avoid impoundment by politely asking the police officer if there is a way to have your vehicle parked or someone pick it up to avoid the impound lot.
Another way to avoid a long impound period is to agree to install an ignition interlock device (IID). It may be expensive, but you might be able to continue driving if you qualify for a restricted driver’s license with IID installation.
While asset forfeiture is not common, it can happen as part of a DUI case. When your vehicle is used to commit a crime, the law states that you can lose ownership of your car (asset forfeiture). In a DUI case, forfeiting your car generally only occurs if:
- The court declares your vehicle a nuisance because you have numerous DUI convictions within seven years
- You were involved in a DUI accident that resulted in a traffic fatality
- Your drunk driving arrest involved illegal drugs, especially if the police officer seizure illegal drugs from your car when they searched it
Seeking legal advice from an experienced California DUI defense lawyer as soon as possible after an arrest is in your best interest. A DUI attorney reviews your case and advises you of your legal options for fighting DUI charges and vehicle impoundments or forfeitures.
What Should I Do if My Car is Impounded After a DUI in California?
Acting fast can save you money after the police impound your car. You pay a fee for each day your car remains in the impound lot. The longer you wait to reclaim your vehicle from an impound lot, the higher the fees are to reclaim your vehicle.
To get your car back after a DUI impoundment, you need:
- Proof of vehicle registration showing you are the registered owner
- Proof of required liability insurance
- Your temporary driver’s license or Notice of Suspension
- Payment for all fees and costs charged for the impound, including fees for towing, daily storage, indoor storage, lien, and after-hours charges
You cannot retrieve your car until the police or the court release the vehicle from impound. The state only releases impounded vehicles to their registered owner. Therefore, if someone else was driving your vehicle, you do not need to wait to retrieve your car. However, you are responsible for paying the impound fees.
Some drivers may not be able to pay the fees to get their vehicles out of impound. Long impound periods could result in fees totaling more than a vehicle is worth. If you do not pick up your car from impound, your car may be sold at auction to pay the impound fees. Check with a California DUI attorney to determine the deadline for picking up your vehicle from impound after a DUI arrest.
What Happens to You After a DUI Arrest in California?
The police officers transport you to jail after a DUI arrest. California Vehicle Code §23152 makes it unlawful to:
- Drive a passenger vehicle with a BAC level of .08% or higher
- Operate a commercial motor vehicle or a vehicle with a passenger for hire in the car with a BAC of .04% or higher
- Operate a motor vehicle while under the influence of alcohol
- Drive a motor vehicle under the influence of any drug
- Operate a motor vehicle under the influence of a combination of any drug and alcohol
A police officer initiates a traffic stop if the officer has probable cause to believe a crime is being or has been committed. For example, the officer may pull you over if he witnesses driving behavior that indicates you might be impaired by alcohol and/or drugs. However, the officer may also pull you over for a traffic infraction.
If the police officer suspects you are impaired during the traffic stop, he may request that you take a pre-assessment screen test, such as a roadside breathalyzer or cheek swab. You can refuse field sobriety tests and roadside preliminary alcohol screening (PAS) tests without penalty.
However, California’s implied consent law requires you to take a chemical test to determine your blood alcohol content (BAC) level after an arrest for drunk driving. Refusal to submit to chemical testing after a DUI arrest can result in additional jail time and a longer duration for DUI school.
Refusing a chemical BAC test after a DUI arrest results in an automatic license suspension. You cannot receive a restricted driver’s license at any time during the license suspension period for refusing a chemical test.
What Are the Penalties for a Drunk Driving Conviction in California?
The sentence for a DUI conviction depends on your prior DUI history and whether there are aggravating factors involved in your drunk driving case.
DUIs are priorable criminal offenses in California. Therefore, the severity of the penalties for each subsequent DUI conviction within ten years increases. A felony DUI conviction can be counted against you regardless of when you were convicted.
Aggravating factors can also increase the severity of DUI punishments. Aggravating factors that enhance a DUI sentence include, but might not be limited to:
- Having a high BAC level (generally .15% or higher) at the time of your arrest
- Being under 21 years old at the time of a DUI arrest
- Having a minor under 14 years of age in the car while driving under the influence
- Excessive speed (i.e., driving 20 miles per hour or more over the posted speed limit)
- Causing injuries or death while driving under the influence
- Refusal to submit to a chemical test
- Driving under the influence while on DUI probation
Assuming that this is your first DUI conviction and there were no aggravating factors to enhance the DUI sentence, the judge could punish you with:
- Six-month loss of driving privileges
- Fines and assessments of up to $2,000
- Up to six months in county jail
- Attending DUI school for three to nine months
- Summary (informal) probation for three to five years
The court may also require you to install an ignition interlock device (IID) for up to six months.
You can fight DUI charges with the help of a California DUI lawyer. Violations of your civil rights, lack of probable cause, challenges to BAC tests, and violations of Title 17 are just a few DUI defenses that could beat DUI charges.
The first step is to seek legal advice from a trusted, experienced DUI defense attorney in California.
What Happens if a Commercial Driver Refuses to Take a Chemical DUI Test?
Commercial drivers have a lower “legal limit” for driving under the influence offenses. California Vehicle Code §23152(d) makes it unlawful to drive a commercial vehicle with a BAC (blood alcohol content) of .04% or higher. That is one-half the legal limit of the blood alcohol level for other motorists.
However, the lower legal limit only applies if the driver operates a commercial vehicle. For example, a person with a CDL (commercial driver’s license) has a legal limit of .08% when operating a non-commercial vehicle.
Truck drivers need to understand the BAC limit of .04% is a strict limit. The police can charge you with DUI even though the alcohol in your system does not impair your driving abilities. Merely having a BAC of .04% or higher while driving a commercial truck creates the presumption your driving abilities are impaired.
The penalties for a conviction of driving under the influence of alcohol or drugs for a commercial driver can be severe. However, there are DUI defenses to a chemical DUI test. You should contact a California DUI lawyer as soon as possible to discuss your legal options for fighting commercial DUI charges.
Why is the BAC Limit Lower for Commercial Truck Drivers in California?
One reason for a lower BAC limit for truck drivers is the danger posed by DUI accidents. Large truck accidents cause catastrophic injuries and traffic fatalities. Over one-third of the deaths and injuries from truck accidents are people not in the truck. Passenger vehicles cannot withstand the impact with a semi-truck.
What Happens if a Commercial Driver Refuses a Chemical Test After a DUI Arrest in California?
California’s implied consent law requires states that anyone who drives a motor vehicle in California gives their consent to a chemical blood test or breath test to determine the alcohol content in their blood. The implied consent law applies after the police lawfully arrest a person on a DUI charge.
A police officer may request that you take pre-assessment tests during a DUI stop. However, you are not required to submit to field sobriety tests, breath tests, or cheek swabs before a DUI arrest.
However, refusal to submit to a chemical test after being arrested for drunk driving results in automatic suspension of your commercial driver’s license. Furthermore, refusal to submit to a chemical test results in additional jail time for a commercial DUI conviction.
The loss of driving privileges for refusing a chemical DUI test for truck drivers depends on the number of prior DUI convictions within ten years. The penalties are:
- No DUI convictions within ten years – one-year license suspension, 48 hours added to your jail sentence, and six extra months of DUI school
- One DUI conviction within ten years – two-year license suspension and 96 hours added to your jail sentence
- Two DUI convictions within ten years – three-year license suspension and ten days added to your jail sentence
- Three or more DUI convictions within ten years – three-year license suspension and 18 days added to your jail sentence
Unfortunately, a commercial truck driver cannot obtain a restricted license to drive a commercial vehicle during the period of their driver’s license suspension.
However, they may want to talk to a Southern California DUI defense attorney about the possibility of obtaining a restricted driver’s license for non-commercial vehicles. California DUI defense lawyers can also represent commercial truck drivers at DMV hearings to fight the automatic suspension of a CDL after a chemical test.
A CDL driver may be able to downgrade their driver’s license to a Class C or Class M driver’s license to operate non-commercial cars and motorcycles. If so, the person might be able to qualify for a restricted driver’s license.
While truck drivers might lose their jobs because they cannot operate commercial motor vehicles, they could drive to and from another job other than driving a truck with a restricted license. Restricted driver’s licenses also allow the person to take a dependent child to and from school if no public bus service or school bus is available. They can also take themselves and family members for medical care.
Penalties for Commercial DUI Convictions in California
The DUI laws governing commercial DUI cases are strict. Whether your DUI arrest was in Long Beach, San Francisco, or elsewhere in California, you need experienced legal advice immediately after a commercial drunk driving arrest. Your job depends on the outcome of the DUI case.
The penalties for driving a commercial vehicle under the influence of drugs or alcohol depend on your prior DUI record and whether injuries or deaths occurred because of a DUI accident.
Commercial DUI First Offense Misdemeanor
The penalties for a first-time commercial DUI with no third party injuries are:
- Fines and penalty assessments between $1,500 and $2,000
- Up to six months in county jail
- Informal or summary probation for three to five years
- Court-approved DUI school for three months to nine months
- Driver’s license suspension for at least one year
As discussed above, if a commercial driver refuses a chemical DUI test, additional jail time is added to the sentence in addition to a mandatory one-year suspended driver’s license for refusal to take the blood or breath test after a DUI arrest.
Loss of CDL Driving Privileges for a DUI Conviction in a Non-Commercial Vehicle
It is also important to note that under California Vehicle Code §15300, a commercial truck driver convicted of a DUI offense in a non-commercial vehicle cannot operate a commercial motor vehicle for one year for a first-time DUI offense. Therefore, your CDL could be suspended even if you are convicted of drunk driving in your personal vehicle.
Lifetime Revocation of CDL Privileges for a Second DUI Conviction
You lose your commercial driver’s license for life for a second DUI offense. It does not matter whether you are driving a non-commercial or commercial vehicle. If the police arrest you for a second DUI offense, contact a California DUI lawyer immediately to discuss fighting the DUI charges.
Penalties for DUI Accidents Resulting in an Injury
If a CDL driver causes a drunk driving accident that injures a third party, the driver faces a misdemeanor or felony DUI charges. DUI resulting in injury is a wobbler offense. The prosecutor decides whether to charge the driver with a felony or misdemeanor based on the facts of the case.
A misdemeanor commercial DUI conviction with injuries can result in:
- Fines up to $5,000
- Five days to one year in county jail
- Summary (informal) probation for three to five years
- Suspended driver’s license for one or three years
- Payment of restitution to the accident victim
- Up to 30 months of court-approved alcohol/drug education program
Felony commercial DUI convictions increase the severity of the penalties. In addition, you can be punished by serving time in state prison. You could lose your driver’s license for five years and be designated as a Habitual Traffic Offender.
The exact punishment depends on prior DUI convictions, the number of people injured, and the severity of the injuries. If a third party sustains great bodily injury, it counts as a strike under California’s Three Strikes law.
Fighting Commercial DUI Charges in California
Drivers holding a CDL have a lot at stake when they face charges of driving under the influence of drugs or alcohol. First, do not talk to the police officers or the prosecutor without an attorney present. Contact an experienced California DUI defense attorney as soon as possible. The sooner you have a lawyer handling your DUI case, the better chance you have of beating DUI charges.
A DUI arrest is not a conviction. However, you need an aggressive defense strategy. Relying on “innocent until proven guilty” is not advisable.
Your DUI lawyer thoroughly investigates the circumstances of your DUI stop and DUI arrest. If police officers lack probable cause for a DUI stop or arrest, your attorney files a motion to suppress evidence. If the judge finds the police violated your rights, the evidence collected by the police could be thrown out. Without the evidence, the prosecution may be unable to prove the DUI charges against you.
Other potential defenses to DUI charges for a commercial driver include:
- Police officers violated Title 17 procedures while conducting a chemical test
- The driver has a rising blood alcohol level at the time of the blood or breath test
- The officers failed to explain to the driver the consequences of refusing a chemical DUI test
- The police arrested the truck driver after an illegal DUI checkpoint
- The driver had a medical condition that produced incorrect BAC levels and/or caused the driver to “fail” the field sobriety tests
Depending on the facts of your case, there could be other DUI defenses available. If you cannot avoid a DUI conviction, hire a California DUI defense attorney to negotiate a plea bargain. An attorney may be able to secure better terms for the plea agreement.
Instead of pleading guilty to DUI charges, your attorney may negotiate a wet reckless or dry reckless plea agreement. Avoiding a DUI conviction is the goal for a driver with a commercial driver’s license.
Can a Decision by the Judge on a Motion to Suppress Be Challenged?
Yes, the judge’s decision regarding a motion to suppress can be challenged. The prosecution can challenge a ruling that favors the defendant immediately. In other words, if the judge rules specific evidence is inadmissible and the case may be dismissed because the evidence cannot be used at trial, the prosecution can file an immediate appeal.
However, if a defendant loses a motion to suppress evidence, the defendant generally has to wait until after the trial and verdict. If the defendant is found guilty, the defendant may appeal. A matter for appeal would be whether the court erred in denying the motion to suppress and allow the evidence to be used at trial.
When Are Motions to Suppress Filed in Criminal Cases?
A motion to suppress evidence is a pretrial motion in criminal cases. The defendant files the motions before the trial begins to ask the judge to prohibit evidence obtained through an illegal search or seizure from being used at trial. The court may hear a motion to suppress evidence at a preliminary hearing or pretrial hearing.
Suppression Motions Filed Under California Penal Code §1538.5
California Penal Code §1538.5 states that a defendant may file a motion to suppress evidence on the following grounds:
- A warrantless search or seizure was unreasonable; OR,
- The police officers had a search warrant, but the warrant:
- Was insufficient
- The police seized property or evidence not described in the warrant
- Lack of probable cause for issuing the warrant
- Law enforcement performed the search in a way that violated the United States Constitution or the California Constitution
- Other violations of state or federal constitutional standards
At the suppression hearing, the prosecution and defense lawyer argue matters of law and how they apply to the motion to suppress evidence. The court may hear witness testimony and oral arguments or written memorandums from the parties. The parties may cross-examine each witness.
Typically, judges may take up to 30 days after a hearing to consider motions to suppress evidence in DUI cases. The judge may require the defense attorney and prosecution to file memorandums of law. It could take longer than 30 days to receive a decision. The attorneys must have time to conduct further legal research into relevant case law and statutes before preparing their memorandums.
The court may find any evidence illegally obtained inadmissible. There is no evidence that is exempt from a motion to suppress evidence.
How Can a Motion to Suppress Evidence Help in My California DUI Case?
The motion to suppress can result in crucial evidence being inadmissible. Without that evidence, the prosecution may not be able to prove you were driving under the influence of alcohol or drugs.
For example, after filing a motion, the court finds that the police officers obtained a warrant for a blood draw without probable cause. Therefore, the chemical test results are inadmissible.
Without the blood test results, the prosecution cannot prove per se DUI charges. In other words, the prosecutor has no way of proving your blood alcohol content (BAC) exceeds the legal limit. The legal limit for BAC in California is:
- .08% or higher for drivers 21 years of age or older
- .01% or higher for drivers under 21 years of age
- .01% or higher for anyone driver on DUI probation
- .04% or higher for a driver operating a motor vehicle that requires a commercial driver’s license (CDL)
- .04% or higher if a passenger for hire is in the vehicle at the time of the DUI offense
Therefore, the prosecutor must prove that you were operating a motor vehicle under the influence of alcohol or drugs under California Vehicle Code §23152(b). It could be much harder to prove impaired driving without chemical tests or other evidence suppressed by the judge.
Another way a motion to suppress evidence can help in your drunk driving case is during plea agreement negotiations. A prosecutor who cannot present all evidence during a trial might be more willing to negotiate favorable terms for a plea bargain.
The best result of a motion to suppress evidence in a DUI case is the dismissal of the drunk driving charges. A California DUI defense lawyer carefully analyzes all evidence and the circumstances of your DUI arrest. Then, if law enforcement officers violated your rights, the criminal defense attorney files the motion to suppress the evidence as soon as possible.
What Types of Evidence Can a Judge Suppress in a DUI Case?
Evidence that could be suppressed in a drunk driving case includes, but is not limited to:
- The results of field sobriety tests (FSTs)
- Breath results from a roadside breathalyzer
- Observations by police officers during a DUI stop
- Eyewitness testimony from other individuals
- Video from dash cams, traffic cameras, and other sources
- Statements made by you during the traffic stop or DUI arrest
- Physical evidence obtained during a search of your vehicle or person
- Results of chemical tests for BAC levels or drugs, including breath, blood, and urine tests
- Evidence gathered a DUI checkpoint
When the judge rules evidence inadmissible, the jurors never know about the evidence. So, for example, if the judge throws out the BAC results from a urine test, the jurors never know that you had a BAC of .10% when officers arrested you for driving under the influence.
Who Has the Burden of Proving Evidence is Admissible at Trial?
Even though the defendant files a motion to suppress evidence, the prosecution must prove that a warrantless search and seizure was reasonable. However, if the police officers obtained a warrant, the defendant has the burden of proving the warrant was not legal.
Do not assume that the police officers did their job correctly and the evidence gathered is admissible in court. Police officers routinely make mistakes and violate civil rights. A person may be unaware that the police did anything wrong.
Therefore, talk to an experienced California DUI defense attorney as soon as possible. A lawyer reviews your case to determine DUI defenses. A potential defense to drunk driving is illegally gathered evidence. However, other DUI defenses could help you beat driving under the influence charges in California.
Common DUI Defenses Used in California Drunk Driving Cases
There are many defense strategies a California DUI lawyer can use to challenge drunk driving charges. However, four of the most common defenses used in DUI cases include:
Lack of Probable Cause
The police officers must have a reasonable basis for a traffic stop. For example, the driver violated a traffic law, or the officer witnessed driving behavior associated with impaired driving. The police officer must also have probable cause for the DUI arrest.
A lack of probable cause could result in evidence being inadmissible in court. The police officer must justify the search and seizure without a warrant for evidence to be used against the driver.
Inaccuracy of Field Sobriety Tests
Police officers observe a person’s performance on field sobriety tests for signs of impairment. However, FSTs can be unreliable. Many factors could result in inaccurate findings.
For example, a driver’s health conditions could make it difficult to perform the tests. Bright lights from oncoming traffic and uneven surfaces can result in inaccurate results. If a police officer provides confusing or incorrect instructions to perform the test, the driver might make mistakes that make them appear intoxicated.
Lack of Evidence of Impairment
The prosecution has the burden of proving your alcohol or drugs impaired your driving ability at the time of your DUI arrest. Without a chemical test results of a BAC level at .08 or above, the prosecution might base their case on the police officer’s observations.
Your California DUI attorney challenges the officer’s observations. For example, the attorney might request copies of the officer’s employment record and review other DUI cases to gather information to use in court when cross-examining the officer.
Challenges to BAC Tests
BAC tests include pre-arrest tests and post-DUI arrest tests. You can refuse to take a roadside breath test or saliva test without penalty. However, after an arrest for drunk driving, you are presumed to have consented to a chemical test for BAC under California’s implied consent laws. Refusing a chemical test after a DUI arrest results in automatic driver’s license suspension.
Your CA DUI attorney may challenge the accuracy of chemical tests on several grounds including:
- You have a medical condition that affects the results of a chemical test
- The lab used fermented blood or contaminated samples
- The lab or law enforcement officers improperly collected or stored blood or urine samples
- A breathalyzer machine malfunctioned, was not calibrated correctly, or was not maintained
- A police officer administered a breath test incorrectly
- Mouth alcohol caused a high false BAC level because of dental work, GERD, heartburn, acid reflux, or burping
- Ketosis because of diabetes of low-carb diets caused a falsely high BAC level
Do not give up before you start fighting. Make the prosecution prove its case by fighting DUI charges with the help of a California DUI defense lawyer. A DUI conviction results in a criminal record, which could have long-term consequences in several areas of your life. Do not plead guilty to DUI charges without seeking legal advice.
Understanding the 4th Amendment’s Effect on DUI Arrests After Lange
In its decision in Lange v. California, the United States Supreme Court ruled that “hot pursuit” of a subject does not always give police officers cause to violate Fourth Amendment protections. However, the court made it clear that the specific circumstances of this case were their basis for the decision. Therefore, police officers might have probable cause for violating the Fourth Amendment in other cases.
What Was the Story Behind Lange v. California?
Arthur Lange drove past a police officer with his windows rolled down, honking his horn, and blaring music. The police officer began following Lange. Mr. Lange ignored the blue lights and the officer’s loud commands to pull over.
The police officer followed Mr. Lange home, where Mr. Lange exited his vehicle in the driveway and entered his garage. The officer suspected Mr. Lange was intoxicated and followed him into the garage.
In the garage, the police officer questioned Mr. Lange. After observing signs of intoxication, the officer administered field sobriety tests, which Mr. Lange failed. The police officer arrested Mr. Lange and transported him to the police station. After the arrest, the police obtained a blood sample for an evidentiary chemical test. The results showed that Mr. Lange’s blood alcohol content (BAC) was three times the legal limit.
The police officer arrested Mr. Lange on a misdemeanor DUI charge.
Protection From Illegal Search and Seizure Under the Fourth Amendment
The Fourth Amendment to the United States Constitution protects individuals from illegal searches and seizures. It prevents the police from excessively intruding into a citizen’s life or property. According to the Fourth Amendment, you have the right to be secure in your “person, house, papers, and effects.”
In other words, you have the right not to be subjected to unreasonable searches or seizures by the government. Furthermore, if the court issues a search warrant, the law requires probable cause to support the warrant. The warrant must also describe the place, person, or things subject to the search.
A search of your home without a warrant is generally presumed unreasonable. Therefore, the state needs to establish that the officer had exigent circumstances for the warrantless search or the search falls into one of the narrowly defined exceptions. One exception would be the search is incident to a lawful arrest.
Filing a Motion to Suppress Evidence Based on a Violation of His Fourth Amendment Rights
Mr. Lange’s attorney filed a motion to suppress evidence obtained after the police officer entered the garage. The motion argued that the police officer violated Mr. Lange’s Fourth Amendment right against warrantless searches and seizures.
The trial court and the California Court of Appeal for the First Appellate District denied the motion to suppress evidence. The Court of Appeal stated that failure to pull over immediately for the officer when he flashed his lights created probable cause for the arrest. Therefore, Mr. Lange could not avoid the arrest by going inside. The court ruled that the pursuit of a suspect for a misdemeanor charge is always permitted under the exception for exigent circumstances to the warrant requirement.
Mr. Lange appealed the decision to the United States Supreme Court.
The United States Supreme Court Ruled in Favor of Mr. Lange
In a unanimous decision, the Supreme Court rejected the exigent circumstances argument by the lower court. They found that pursuing a fleeing misdemeanor suspect does not always give the police officer the right to enter a home without a warrant.
Instead, the Court held that cases involving the pursuit of a suspect on an alleged misdemeanor charge must be decided on a case-by-case basis. Furthermore, the seriousness of the alleged offense is an important factor when deciding whether exigent circumstances exist to override the requirement for a warrant. In other words, a minor offense did not justify ignoring the protections provided by the Fourth Amendment.
How Does the Lange Decision Impact DUI Cases in California?
The United States Supreme Court reaffirmed the protections against unreasonable actions by the police under the Fourth Amendment. In addition, it helps strengthen the protection that prevents police officers from entering private homes without a warrant merely because they are suspicious.
On the other hand, there are instances in which exigency would apply and allow the officers to ignore the warrant requirements under the Fourth Amendment. Examples of exigent circumstances might include:
- Imminent harm to others
- A threat to the police officer
- Likely destruction of evidence
- Fleeing from a scene
All of the circumstances need to be considered to determine if the situation justifies proceeding without a warrant. The court made it clear that pursuing a suspect does not always give the police officer the right to trample over the Fourth Amendment protections.
The Supreme Court has previously ruled that dissipation of alcohol in the blood is not an exigent circumstance for illegal entry into a person’s home. The offense was minor, and the person was not likely to flee.
Likewise, when the alleged crime is minor and there is no evidence that the person will flee again, the police can take their time to get a warrant. An exception is in drug cases where the person might destroy evidence.
What Should I Do if the Police Performed an Illegal Search?
Defendants who believe their civil rights were violated should contact a California DUI defense attorney. The attorney can review the case to determine whether a motion to suppress evidence should be filed with the court.
If the court rules that the police officers violated your civil rights, the court may find that the evidence obtained during the illegal search and seizure is inadmissible in court. Without that evidence, the prosecution might not be able to prove the legal elements of a drunk driving charge. Therefore, your case could be dismissed.
California DUI Penalties
Many of the drunk driving charges in California are misdemeanor offenses, unless you have several prior DUI convictions, a prior felony, you cause injuries, or there are aggravating circumstances. However, the DUI penalties for a misdemeanor DUI charge can still be severe.
For a first-offense DUI in California, the judge could sentence you to:
- Incarceration in county jail for up to six months
- Assessments and fines between $1,500 and $2,000
- Six months suspended driver’s license (the DMV could suspend it for longer if you refused a post-arrest evidentiary chemical test)
- Summary (informal) probation for three to five years
- DUI school or three to nine months
If your case involves aggravating circumstances, the judge could increase the penalties. For example, you had a BAC of .15% or higher, or you are under the age of 21 years.
The penalties for DUI convictions increase as you have more DUIs on your record. You may be required to install an ignition interlock device (IID) and attend a 30 month DUI education program. The only way to avoid jail and other penalties is to beat the DUI charges.
Defense to DUI Charges in California
You can fight DUI charges. However, the circumstances and facts of your case determine what type of defense you can use. Hiring an experienced California DUI defense lawyer is the first step.
The prosecution has the burden of proving you are guilty of the charges against you. Therefore, do not help them with their job. Talking to the police or the prosecutor without an attorney is never in your best interest. You will not talk your way out of the arrest. You will only give the state more evidence to use against you.
Instead, focus on working with a California DUI lawyer to build a defense against the drunk driving charges. Examples of defenses to charges of driving under the influence include:
- Breathalyzer errors, including improper procedure, environmental factors, health conditions, and device malfunction
- Health conditions that could cause a false BAC level or mimic intoxication, including diabetes, epilepsy, brain injuries, acid reflux, GERD, and hiatal hernia
- DUI blood test errors, including blood contamination, improper withdrawal, improper storage, and blood fermentation
- Lack of probable cause for the DUI stop or arrest
- Inaccuracy of field sobriety tests, including environmental conditions, police intimidation, lack of proper instructions, health conditions, and non-standard tests
- You were not impaired by alcohol – your BAC was under the legal limit
- Challenging the results of an evidentiary breath test based on partition ratios
- The DUI checkpoint did not comply with the legal requirements
- You were not operating the motor vehicle (you were sitting in the car or sleeping in the car)
- Rising blood alcohol because the chemical test was performed when your body was still absorbing the alcohol
There could be other defenses to your DUI charges depending on the unique facts of your case. If there is no chance of the DUI charges being dropped, an experienced DUI defense attorney can use the evidence in your favor to negotiate a plea agreement.
The plea agreement may include reduced charges and reduced sentences. An advantage of negotiating reduced charges is that you might be able to keep your driver’s license. Your insurance may not be as severely impacted. You might avoid jail. The charge might not count against you if you are arrested again for DUI.
Before pleading guilty to DUI charges, talk with a lawyer about your options so you can make the decision that is best for you.