Category Archives: DUI Charge

What is the “Walk and Turn” Test for DUIs in California?

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:

  1. Have the suspect stand heel-to-toe during the instructions.
  2. Demonstrate placing your left foot on the line.
  3. 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.
  4. Demonstrate placing and keeping arms down at your sides.
  5. Advise the suspect to maintain this position until the end of the instructions and the test begins.
  6. Verify that the suspect understands the instructions.
  7. 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.
  8. Demonstrate how to pivot on one foot while taking small steps with the other to effect the turn.
  9. 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. 
  10.  Advise the suspect that once they start walking they are not to stop until finished.
  11. Verify once more that the suspect understands.
  12. 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.

Lighting

There should be adequate lighting, demonstrated by the suspect being able to see the officer and understand their directions and demonstrations.

Surface

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.

Demarcation

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.

Surface Setting 

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.

Distractions

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.

What is a Tahl Waiver in California DUI Cases?

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.

Finger-to-Nose Testing Explained

When you are stopped for driving under the influence, an officer may have you perform one or more field sobriety tests. The purpose of these tests is to determine whether you are under the influence of drugs or alcohol. The National Highway Traffic Safety Administration (NHTSA) has approved and standardized three field sobriety tests for use during DUI investigations:

  • HGN (horizontal gaze nystagmus) test
  • Walk and turn test
  • One-leg stand test

Many police officers use the “finger-to-nose” test during DUI investigations. However, this test is an unofficial field sobriety test that the NHTSA does not approve. As such, several issues can arise when a police officer uses the finger-to-nose test as part of a DUI investigation. 

What is the Finger-to-Nose Test?

A police officer instructs you to close your eyes and slightly tilt your head backward. Then, with your index finger, you touch the tip of your nose. The police officer has you repeat the process three times with each hand. Before each attempt, the police officer informs you which hand to use to touch the tip of your nose.

During the finger-to-nose test, a police officer observes you for signs of impairment. Specifically, the officer observes:

  • Your ability to follow instructions during the test
  • The direction and amount your body sways during the test
  • Whether you have body, leg, or eyelid tremors
  • Your depth perception and muscle tone
  • Unusual sounds or statements you make during the test
  • Whether you can touch your nose with your index finger or other parts of your face

Because the finger-to-nose test is not a standardized field sobriety test, police officers are not required to use specific procedures to instruct the person how to perform the test. Likewise, officers are not required to perform the test under specific conditions.

Therefore, the test can produce wildly inaccurate results because of a police officer’s subjective view of the suspect’s performance. A DUI defense lawyer may attack the validity and results of the finger-to-nose test on many points.

Field Sobriety Tests Used During a DUI Investigation

The three NHTSA standardized three field sobriety tests used during DUI investigations. Several scientific studies validate the correlation between performance during these tests and DUI impairment through statistical means. 

Police officers must follow strict and specific procedures for administering standardized field sobriety tests. Failing to follow the requirements for testing could make the results subject to challenge in court.

Even though the NHTSA only has three standardized DUI field sobriety tests, police officers often use several non-standard field sobriety tests during a DUI investigation. In addition to the finger-to-nose test, a police officer may use  the following tests to judge your impairment level during a DUI investigation:

Hand Pat Test

You extend your hand out in front of your palm up and then place your other hand on top of that hand palm down, as if you are about to start clapping. Then, counting “one, two, one, two, etc.,” you pat your hands together. Your bottom hand remains stationary. 

However, you turn the top hand from palm down to palm up between each movement. The result is that you “pat” your bottom hand with your top hand palm down on the “one” counts and palm up on the “two” counts.

Romberg Balance Test

During this test, you stand with your feet together and your head slightly tilted backward. Then, with your eyes closed, you must estimate when 30 seconds have passed. At that time, you tilt your head forward, open your eyes, and say stop.

Finger Count Test

The police officer instructs you to put one hand in front of you with your palm facing upward. You then touch your thumb to the tip of each finger, beginning with your index finger and ending with your little finger. As you touch each finger, you count from one to four. Then, the process is reversed and performed three times. 

As with standardized field sobriety tests, police officers observe your ability to follow instructions, coordination, balance, body tremors, and comments made during these non-standardized field sobriety tests. The purpose is to determine if you are impaired by alcohol or drugs.

However, the results of these non-standardized field sobriety tests are also highly subjective. The same problems exist with these tests as with the finger-to-nose test.

Using the Finger-to-Nose Test to Examine the Cerebellum and Measure Ataxia

The instructions provided for the finger-to-nose test are designed to help measure ataxia. Ataxia is the lack of muscle control or coordination of voluntary movements. It may be caused by alcohol use. 

The finger-to-nose test is supposed to detect a lack of voluntary coordination of voluntary muscle movements. A lack of coordination could indicate problems with the cerebellum, which could indicate intoxication. 

Because the finger-to-nose test is not a standardized test, the instructions police officers give to suspects can vary. However, general instructions include:

  • Stand with your feet together and your arms down at your side
  • Make a fist with each hand, keeping the index finger extended and turn your hand so your palm faces upward
  • Tilt your head back slightly
  • Close your eyes (closing your eyes before tilting your head back could impair normal equilibrium)
  • Extend your right (or left) arm straight out in front of your body and then touch your index finger to your nose before returning your arm back down to your side

As you perform the test, the police officer watches for “clues” or indicators of neurological dysfunctions that suggest you may have been driving under the influence of drugs or alcohol. 

Specific “clues” the police officer notes include:

  • Your inability to follow instructions, such as keeping your feet apart or extending the incorrect finger when making a fist.
  • Being unable to stand still. You sway from side to side or back to front, so the police officer finds that your inability to maintain balance is a sign of impairment. 
  • You exhibit the “shakes” because you involuntarily tremble when performing the test. Your muscle tone may appear more rigid or limp than is expected for a sober person.
  • You utter unusual sounds or make statements that the officer believes indicate you are intoxicated, such as signing while performing the test or repeatedly stating you have to “pee.”
  • You take too much time or you try too fast to touch your finger to your nose. Either action could indicate a problem with depth perceptions. 
  • The officer notes whether you use the correct sequence for touching your nose that the officer gave you.

As stated above, the results of the finger-to-nose test are subjective. For example, an officer might believe that asking to use the bathroom is an unusual statement, while another officer might assume that you just need to urinate. Likewise, belching could be interpreted as being intoxicated, but it could result from having just eaten a large meal.

Therefore, the reliability of the finger-to-nose test can be questionable.

Challenging the Results of the Finger-to-Nose Test 

Because the NHTSA has not approved the finger-to-nose test, police officers do not have a specific list of criteria to use when determining if a person “fails” the test. Furthermore, the procedure for administering the test can vary significantly from one jurisdiction to another and even more from one officer to another. Therefore, the validity of the test and the accuracy of the results are subject to scrutiny.

Additionally, there are numerous reasons why a person could fail the finger-to-nose test that have nothing to do with intoxication. Conditions or circumstances that could impact the results of the finger-to-nose test include, but are not limited to:

  • Ataxia caused by medications instead of being caused by alcohol intoxication. Certain medications may cause a lack of coordination of muscle movements, such as anti-seizure medications and medications for depression.
  • Brain damage and neurological defects could negatively impact the function of the cerebellum, which may impact coordination. 
  • Mental disabilities may prevent a person from understanding the instructions given by police officers when performing the finger-to-nose test.
  • Roadside conditions could impact the results of the test. For example, load noises from traffic, flashing lists, and other distractions could be the cause of the “clues” of intoxication the officer notes instead of alcohol use.
  • Incorrect sequences of instructions could impair the person’s equilibrium. Therefore, if a police officer tells the person to close their eyes and then tilt their head back, the test results could be invalid.

Without standardization, the results of a finger-to-nose test at a DUI stop can be inaccurate. Furthermore, without standard instructions to guide officers in judging the “clues” they observe during the test, it is impossible to know whether a police officer judged the person’s responses too harshly.

A DUI defense attorney can argue that the inherent defects in the finger-to-nose test make the results inconclusive, especially if there is no other evidence that the driver was intoxicated. 

Talk with a DUI defense lawyer if your DUI arrest was based partially on a finger-to-nose test. You may have a strong defense that could result in a dismissal of charges.

Do Police Have to Read You Miranda Warnings During a DUI Arrest?

Most people are familiar with the Miranda warning, commonly referred to as Miranda rights. If they do not remember learning about the Fifth Amendment and the court case that established the Miranda warning in school, they have likely heard the warning read numerous times on television or in movies.

Unfortunately, Hollywood’s version of the Miranda warning is not accurate. It creates several misconceptions about when the police must read a person the Miranda warning. 

For example, many people would say that the police must read a person the Miranda warnings during a DUI arrest. If the officers failed to do so, it would violate the person’s civil rights. However, they would be wrong. 

Police offices are generally not required to read your Miranda rights to you while conducting a roadside DUI investigation or making a DUI arrest.

What is the Miranda Warning?

The Miranda warning is based on the civil rights created in the Fifth Amendment to the United States Constitution. Under the Fifth Amendment, a person has the right to due process of law and protection from double jeopardy. It also protects a person against self-incrimination. The rights apply in all criminal cases, including cases involving driving under the influence (DUI).

The term “Miranda” is taken from the United States Supreme Court decision in the case of Miranda v. Arizona. In the Miranda case, the court ruled that a person must be advised of their Fifth Amendment rights in situations where these two conditions are met:

  1. The person is in custody and not free to leave, such as under arrest AND
  2. The police officers conduct a custodial interrogation.

The term “custodial” means post-arrest. An interrogation consists of questions designed to obtain incriminating information from the person’s responses. 

The Miranda warning is required when both conditions are met. Therefore, you can be arrested for DUI without being read your Miranda rights if the police do not intend to interrogate you after the arrest.

It is important to note that a person could be in custody without being under arrest, depending on the laws where the person was stopped for DUI. The test of whether the Miranda warnings apply is whether the person was “free to leave.” If a reasonable person in the same or similar situation would believe there were not free to leave the interrogation, the Miranda warning should apply. 

What Are the Exact Words That Police Officers Must Use to Give the Miranda Warning During a DUI Arrest?

The Supreme Court did not specify the exact words police officers must use when giving the Miranda warning. Police officers are only required to inform a suspect of his rights clearly. The officers are not required to read word-for-word the text of the Miranda case. They are only required to provide a warning that “fully conveys” to a suspect their rights.

A Miranda warning includes:

  • Your right to not answer questions or make statements (remain silent)
  • The fact that what you say can be used as evidence against you in court
  • Your right talk with an attorney and to have an attorney present during questioning
  • The fact that the court can appoint an attorney to represent you if you cannot afford to hire an attorney

Once a suspect is warned of his right to remain silent and requests an attorney, the police must respect the suspect’s rights. 

In Miranda, the court made it clear that once a suspect indicates in any manner that they wish to remain silent, an interrogation must stop. Likewise, if a suspect indicates he wants to have an attorney present during interrogation, the questioning must stop until the suspect has had the chance to confer for an attorney. 

A police officer generally ends the Miranda warning by asking the person if they understand the rights as they have been explained to them. The officer may also ask the person if they wish to waive these rights and talk to the police officers.

A driver does not have to waive their Miranda rights. A driver may assert his Miranda rights at any time during an interrogation, even if the person has answered some questions.

Does a Police Officer Have to Read a Person Their Miranda Rights During a DUI Stop?

When a police officer stops you because he suspects you are driving under the influence, he conducts a DUI investigation. The investigation includes everything the officer does from the moment he pulls you over until he arrests you for driving under the influence. The purpose of the DUI investigation is to determine if the officer has probable cause for a DUI arrest.

Because you are not “in custody” at this point, the police officer is not required to issue a Miranda warning. The officer is not engaged in a custodial interrogation as defined under Miranda. He is only looking for signs of impairment that justify a DUI arrest.

During a DUI investigation, the police officer observes the driver for signs of intoxication, such as slurred speech, bloodshot eyes, and confusion. In addition, he pays close attention to whether he can smell alcohol on the driver’s breath or person.

An officer may ask questions to observe whether the driver displays signs of intoxication when answering the questions. Typical questions an officer asks during a DUI stop include:

  • Have you been drinking?
  • Where are you coming from, and where are you going?
  • Have you taken any medications or drugs?

The police officer may also have the driver perform field sobriety tests and take a breathalyzer as part of a DUI investigation. At this point, the person is not being subjected to custodial interrogation, so the officer is under no obligation to read the Miranda warning.

Is the Miranda Warning Required After a DUI Arrest?

Unless law enforcement officers intend to conduct a custodial interrogation, the Miranda warning is not required for a DUI arrest. If the police officer intends to place the driver under arrest without interrogating the driver, the officer does not need to inform the driver of his constitutional rights.

However, the Miranda warning is required once the driver is in custody and the police officer asks questions intended to obtain responses that will incriminate the driver. 

The questions the police officer might ask after a DUI arrest may be the same questions the officer asked during the DUI investigation. The key difference is that the driver is in custody (under arrest), which triggers the requirement for the Miranda warning. 

Can a Driver Invoke Their Right to Remain Silent During a DUI Stop and Investigation?

You have the right to remain silent during any encounter with law enforcement officers. You do not need to have your Miranda warning read to you to exercise your constitutional rights. 

Therefore, you are not required to answer any questions police officers ask during a DUI traffic stop. However, the driver must provide the office with a driver’s license and proof of insurance. 

A driver must make no particular words or statements to invoke their Miranda rights. The only requirement is that the person clearly and affirmatively state that they wish to invoke their rights. 

For example, asking a police officer whether you should remain silent or if you need an attorney may not be sufficient to invoke your Miranda rights. Instead, you would need to clearly state that you are choosing to invoke your right to remain silent, and you want to speak with an attorney. Once you invoke your right to remain silent, remaining silent cannot be used as evidence of guilt. 

How Can I Protect My Rights After a DUI Arrest?

After you are arrested for DUI, clearly state that you are invoking your right to remain silent. State that you want to talk to an attorney and have that attorney present during questioning. After invoking your rights, then remain silent. Do not answer questions, make statements, or talk to the police without an attorney present.

Likewise, do not waive your Miranda rights. After police officers give you the Miranda warning, you can choose to waive your rights and talk to the police. At that point, anything you say can be used against you in court.

The police officer generally asks you if you understand your rights. The officer may then ask you if you want to waive your rights and talk to the officer. At this point, you should affirm again that you are invoking your right to remain silent and wish to speak with an attorney.

Be careful what you do from this point forward. If you make a voluntary statement to the police after you invoke your Miranda rights, the court may consider the statement an implied waiver of your Miranda rights. 

What Happens if the Police Violate My Miranda Rights in My DUI Case?

Police officers may violate a person’s Miranda rights in several ways. For example, the police officer may fail to issue the Miranda warning. He continues questioning a person after the person invokes their right to remain silent or have an attorney present. An officer may coerce or threaten a suspect to waive their Miranda rights.

A violation of your Miranda rights could result in evidence in your case being inadmissible in court. Your DUI defense attorney files a motion to suppress evidence with the court on the grounds that the police violated your Miranda rights. If the judge finds the police violated your rights, he may exclude any statements you made after your rights were violated from evidence. 

The best way to protect your rights after a DUI arrest is to remain silent until you have consulted with a DUI defense attorney.

Title 17 Violations and DUIs in California

What is Title 17 in California?

Title 17 created the rules on how law-enforcement, forensic alcohol laboratories, and other government entities must perform DUI chemical tests like DUI breath tests, urine tests, and blood tests, to prevent false positive or inaccurate results. Blood tests, urine tests, and breath tests can be powerful evidence that can sway a jury to find a defendant guilty of a DUI. People could get wrongfully convicted of these criminal charges because of flawed testing procedures.

Our state legislature enacted these laws to protect innocent people from wrongful convictions. Because these tests carry so much weight with juries, there must be confidence in the accuracy of the results. If the government or laboratory did not perform the tests in accordance with the Title 17 requirements, the prosecutor should not rely on the test results or introduce them into evidence in a case.

Why Does Title 17 Matter?

If you can successfully challenge your DUI based on Title 17 of the California Code of Regulations violations, you could enjoy one of these consequences:

  • Getting the prosecutor or judge to dismiss your DUI charges
  • Negotiating a successful plea bargain with the prosecutor to reduce your charge from a DUI to a lesser charge
  • Taking your case to trial and winning a not guilty verdict.

The prosecutor is unlikely to examine in great detail whether the government agency checked every box on the Title 17 regulations. Usually, it is up to the defense attorney to explore whether the testing procedures complied with the requirements of Title 17. Very few criminal defendants know how to investigate the possibility of a Title 17 DUI defense, which means that they could get convicted on inaccurate and flawed test results.

What Does Title 17 Say About Breathalyzer Tests?

17 CCR §1221.2 lays out the rules the government must follow for breathalyzer tests used in DUI cases. The details of the requirements of Title 17 for breathalyzer tests could fill up an entire article on its own, so we will summarize. Here are some of the primary regulations:

  • The officer must collect and analyze two separate breath samples from each person. The breath alcohol concentrations cannot differ from each other by more than 0.02 g per 210 liters of breath.
  • The breathalyzer device must be checked for accuracy by using control samples that are either water or dry gases of alcohol. Each machine must get tested periodically against control samples. A forensic alcohol laboratory must provide the reference samples used as controls. 
  • A forensic alcohol analyst must use the results of the analysis to determine if the instrument currently registers accurate alcohol concentration results. An operator can check the machine against control samples, or the analysis can take place automatically.
  • The accuracy checks of breathalyzer equipment must happen either every 10 days or less or after testing 150 subjects, whichever comes first.
  • Officers who perform breath alcohol testing on people for the purpose of DUI evaluation must have at least four hours of training on a variety of breathalyzer use and related subjects. 
  • Every officer training to use a breath instrument must pass a written exam on the subject with a score of at least 80%. Also, the instructor must observe the trainee operate the instrument and perform a successful test on the instrument. The officer must have training in how to use the specific breath alcohol testing device used by the law enforcement agency.
  • The forensic alcohol laboratory must keep records for every breathalyzer device, including the frequency that each instrument got tested for accuracy and the identity of every person who performed manual accuracy evaluations. The records must demonstrate compliance with the Title 17 regulations.

If the law enforcement officer or agency violated any of these regulations, it could be grounds for challenging DUI charges that relied on the breathalyzer test results.

What Are the Title 17 Rules About Urine Tests?

Urine tests are not used as often as breathalyzer or blood sample tests for forensic alcohol analysis, but Title 17 does address the procedures one must follow in collecting and storing a sample for urine analysis. In a living individual, the person suspected of driving under the influence must first void the bladder and then wait at least 20 minutes before giving the urine sample that will get tested. The forensic laboratory must store the urine sample in a clean, dry container with a preservative.

The sample must remain in storage for one year from the date of collection to give the defendant the opportunity to get the sample analyzed. If the defendant requests a sample for analysis and the forensic laboratory, law enforcement agency, or coroner/medical examiner’s office has enough of the sample remaining; they will provide a sample for analysis to the defendant in a clean container with identifying information, while continuing to maintain possession of the original sample container.

What Are the Title 17 Blood Test Regulations?

If a blood sample gets collected on a living individual, the collection must happen as soon as feasible after the alleged offense because alcohol levels can decrease relatively quickly with the passage of time. The blood sample must be drawn by venipuncture, which means using a blood-drawing needle to remove a blood sample from a vein.

The individual who draws the blood sample should not use alcohol or any other volatile organic disinfectant to clean the skin before drawing the specimen. In other words, the person drawing the blood should use a disinfectant like Betadine or zephiran chloride rather than an alcohol wipe or alcohol on a cotton ball. Using alcohol to disinfect the skin could create a false-positive result. None of the equipment, including the hypodermic needles, syringes, vacuum-type containers, or any other equipment, should be cleaned with or kept in alcohol.

On occasion, a blood sample for forensic alcohol analysis gets collected post-mortem when there is a suspicion of alcohol impairment. The professional collecting the blood sample on the deceased individuals should use all practical precautions to avoid contaminating the sample. The sample should be collected before starting any embalming procedure. The blood must be drawn from a major vein or from the heart to avoid contamination by alcohol from the gastrointestinal tract or by diffusion. 

A post-mortem blood sample must be combined with an anticoagulant and preservative. The coroner or medical examiner must keep the blood sample for at least 90 days after the date of collection. 

Do Forensic Alcohol Laboratories Have Rules Under Title 17?

Absolutely. Medical laboratories get in trouble frequently for incompetence causing false negatives or false positives on many types of medical tests. The California legislature is aware of this, so they enacted strict regulations on forensic alcohol laboratories to protect the rights of individuals from unfair convictions based on flawed test results.

Only qualified personnel at a forensic alcohol laboratory are allowed to perform forensic alcohol analysis. In addition to maintaining a quality control program in forensic alcohol analysis procedures under Title 17 and submitting evidence that they meet the proficiency testing requirements under the health code, the lab must use only trained forensic alcohol analysis to perform the testing.

Under Title 17, the qualifications for a trained forensic alcohol analyst include all of the following:

  • Having a bachelor’s degree or higher in the field of life science or physical science.
  • Having two years of analytical experience performing alcohol analysis and experience in interpreting the demeanor and behavior of individuals after consuming specific known amounts of alcohol or satisfactorily completing a training course on forensic alcohol analysis and many related topics.
  • Have successfully completed a hands-on competency test with at least four samples that meet different, predetermined test results, with the test-taker being unaware of those values. 

The laboratory must provide written information about its testing programs for its personnel to the government agency that uses its testing services for forensic alcohol analysis.

What Should I Do if I Suspect the Officer or Laboratory Broke a Title 17 Rule in my DUI Arrest and Investigation?

You should talk with your criminal defense attorney about any possible Title 17 violations by the officer or forensic laboratory. If your sample got corrupted, it should not be used against you. If the officer or forensic alcohol laboratory personnel did not meet the qualifications for collecting or analyzing breath, blood, or urine samples for purposes of a DUI, you could have a strong defense in your case. 

Your lawyer can subpoena the records that document the relevant chain of events. Also, your attorney can check the maintenance records of the specific device used, the training of the law officer or lab worker, and the forensic alcohol laboratory’s compliance with Title 17 regulations.

After compiling this information, your DUI lawyer can create a strategy for advocating on your behalf to the prosecutor or judge. Depending on the stage of your case at that time, your attorney can select from the available procedural options.

Should I Try to Challenge a Title 17 DUI Violation on My Own?

California law does not force you to hire a lawyer to aggressively attack your DUI charges and build a strong defense on your behalf, but with so much at stake for your future, working with a lawyer can be a smart decision. Title 17 challenges are sophisticated criminal defense procedures, best left to legal professionals.