Category Archives: Duiblog
Drivers who are pulled over and placed under arrest for driving under the influence will likely be required to submit to one or more chemical tests. These tests are designed to detect whether the driver has alcohol or drugs in their systems and in what quantity. The results of these chemical tests often form the backbone of a prosecutor’s case against a driver. For example, a chemical test showing a driver’ breath- or blood-alcohol concentration to be greater than .08 may be the central piece of evidence a prosecutor relies on in pursuing charges against a motorist.
Prosecutors and police officers alike want drivers and jurors to believe these chemical tests are “scientific” and “foolproof.” The truth about chemical testing in California, though, is more complicated.
Breath testing on a breathalyzer machine, such as the “Intoxilyzer,” is by far the most common chemical testing requested because the testing process itself is relatively quick to perform and because it does not require someone with medical knowledge or training to assist in collecting the sample. In a breath test, the driver blows into a tube connected to the testing machine. The machine collects a sample of the person’s breath and then analyzes that sample using infrared energy and approximates the person’s alcohol concentration.
This breathalyzer chemical test is not to be confused with the roadside breathalyzer, or “Preliminary Alcohol Screening” (PAS) test that officers use when they suspect a driver is intoxicated. In California, a chemical test is required, but only after a person has been lawfully arrested on suspicion of driving under the influence. The roadside breathalyzer is not a “chemical test” in that it is not required, and considered a “field sobriety test,” which are optional.
A blood test is another chemical test that may be performed during a DUI investigation. Blood tests are often considered the most reliable of the three types of chemical tests. A blood sample is drawn from the driver and is then sealed and delivered to a laboratory. At that facility, a forensic scientist analyzes the blood sample using specialized equipment to determine the alcohol concentration in the person’s blood. Despite the testing and analysis occurring in a laboratory facility, there are still opportunities for errors to occur that might render the results unreliable. Samples of blood that are not packaged properly, that are drawn too long after officers see the driver operating their car, or that are tested using defective equipment may all provide inaccurate blood alcohol content results.
Urine tests are considered the least reliable of all of the chemical tests and are usually reserved for cases where the driver is suspected of being under the influence. The machines used to evaluate the urine of DUI suspects, for example, often confuses the chemical compounds of different drugs, cannot tell when the drugs were used, nor can it tell how intoxicated someone is. Fortunately, urine tests, by law, are not to be used in California as a chemical test unless both a breath test and a blood test are unavailable, which in most jurisdictions, is highly unlikely.
Which Chemical Test Should a California Driver Take?
According to California Vehicle Code 23612(a)(2)(A), drivers who are lawfully arrested on suspicion of having driven under the influence of alcohol are to be informed by the officer that the driver may choose whether to submit to a breath test or a blood test. The driver’s choice is to be honored unless the driver is unable to complete their chosen test. As stated above, only if both a breath test and a blood test are unavailable should a urine test be used.
Refusing to submit to any chemical test can have serious and negative consequences for a person’s driving privileges. Choosing to take a breath or a blood test should be made after considering the facts of the situation. While blood tests are generally more reliable, they may also be able to detect the presence of drugs in the driver’s system. Thus, if someone consumed any drugs but little or no alcohol, it may be better for them to request a breath test be performed. In addition, those laboratories who perform testing on a driver’s blood sample must preserve a sufficient amount of the sample so that the driver may obtain an independent analysis of the sample. This is known as a “blood split,” and the driver obtains the sample for independent testing through a court order.
Breath testing does not provide a driver with a sample that can be independently tested, but the problems associated with breath testing machines tend to be more significant and numerous. Thus, if a person believes they are close to or under the legal limit, a breath test result may be easier to challenge in court.
Chemical Testing is Not Dispositive in a California DUI Case
Even though law enforcement officers and prosecutors would have drivers believe otherwise, the results of a chemical test – whether a breath, blood, or urine test – are not beyond questioning. In fact, the quality of any chemical test result depends on a myriad of factors, including:
- Whether the sample was timely collected and collected in a safe and careful manner;
- Whether steps were taken to prevent contamination of the sample;
- Whether the sample was appropriately stored prior to testing;
- Whether the person analyzing the sample was adequately trained on the testing equipment and protocols;
- Whether the testing equipment was working properly or if there were unaddressed errors in the machinery’s code or parts
- Whether a proper observation period (if applicable) was observed to ensure the person did not belch, vomit, or put anything in their mouth before giving a breath sample
A California defense attorney with experience defending drivers from drunk driving charges can examine the facts of a particular DUI investigation and know how best to attack the chemical testing results. Samples that were collected after an unlawful arrest, that were not collected in accordance with protocols, or that were not appropriately analyzed may all be subject to suppression.
Earlier this year, California’s Second District Court of Appeal refused to overturn a Fontana woman’s convictions for killing six individuals in a 2014 drunken-driving accident when blood was taken from her while she was unconscious.
Olivia Culbreath was driving on the 60 Freeway in the wrong direction when she crashed into another vehicle. Culbreath herself was rendered unconscious in the wreck and six others were killed, including Culbreath’s sister. Law enforcement officers obtained a blood sample from Culbreath while she was unconscious and without first obtaining a warrant. This blood sample showed that Culbreath’s blood alcohol concentration to be nearly twice the legal limit of .08.
On appeal, Culbreath argued that the trial court impermissibly admitted the blood test results as they were obtained without a warrant. Caselaw shows the courts’ clear preference that law enforcement obtain warrants for any search, including a blood draw. However, as the Court of Appeal found, there are still situations where officers can draw a person’s blood without first obtaining a warrant.
Overview of the Fourth Amendment and DUI Blood Draws
The Fourth Amendment to the U.S. Constitution prohibits government agents from conducting “unreasonable” searches and seizures. This prohibition extends to state and local law enforcement officers as well, including local police. When searches are determined to be in violation of the Fourth Amendment, any evidence collected by law enforcement during the illegal search may be suppressed and kept from being used against the person from whom the evidence was illegally taken. In order for a search to be considered “reasonable,” law enforcement officers must generally either obtain a warrant by presenting evidence to a judge that amounts to probable, or an exception to the warrant requirement must apply.Drawing blood from a person suspected of DUI has long been recognized as a “search” that must comply with the Fourth Amendment in order to be valid. This means that officers must either obtain a warrant from a judge before drawing a DUI suspect’s blood or be able to establish that an exception applies that justifies foregoing a warrant. If they do not, the person from whom blood was taken and who is charged with DUI may be able to keep the results of the blood test from being used against them.
Exigent Circumstances is an Exception to the Warrant Requirement
An exception to the warrant requirement exists when law enforcement officers are presented with “exigent circumstances.” Simply put, “exigent circumstances” are situations in which officers do not have an adequate amount of time to obtain a warrant without seriously risking the destruction or loss of evidence. For example, officers who approach a home, who have probable cause to believe methamphetamine is inside, and who then hear the frantic, repeated flushing of a toilet inside may be able to justify a warrantless entry into the home to search for methamphetamine or evidence of methamphetamine usage. Officers may be successful in arguing that it was likely methamphetamine or other evidence would have been irretrievably lost if they did not immediately enter the home and search.
The same principles apply in the context of a DUI blood draw as the result of the case Schmerber v. California (384 U.S. 757), decided more than half a century ago. Officers who have probable cause to believe a person is driving under the influence and who believe there are exigent circumstances justifying a warrantless blood draw may proceed to do so. Officers are not left to their own devices, though, in determining whether exigent circumstances exist. For example, the 2013 U.S. Supreme Court case Missouri v. McNeely (569 U.S. 141) stated that the fact that alcohol naturally metabolizes in a person’s body – and, as a result, their alcohol concentration reduces – over time is not, standing alone, a sufficient exigent circumstance that justifies a warrantless blood draw. In other words, officers need more than just a DUI arrest to claim that there are exigent circumstances to obtain blood without a warrant, and exigent circumstances needed to determined on a case-by-case basis.
Applicability to Culbreath’s Appeal
In her appeal, Culbreath argue that officers lacked exigent circumstances permitting them to draw her blood without a warrant. The Court of Appeal disagreed. The Court pointed not just to the serious nature of the accident but also to the fact that Culbreath was unconscious at the time her blood was drawn. Calling the situation facing law enforcement officers not an emergency but a “catastrophe,” the Court of Appeal had little difficulty in finding that officers were presented with an exigent circumstance upon responding to Culbreath’s wreck.
The Court of Appeal’s decision is also in accord with the recent U.S. Supreme Court case, Mitchell v. Wisconsin (588 U.S. _____, 139 S. Ct. 2525). In Mitchell, a 5-4 majority of the Supreme Court held that law enforcement may conduct a warrantless blood draw on a driver whose unconscious condition or stupor prevents officers from seeking a breath test. In such a situation, the Court reasoned, law enforcement is unlikely to have the time to obtain a warrant before the driver’s need for medical treatment takes away any opportunity to obtain an accurate sample of blood that can be tested. Subsequently, the unconscious nature of a DUI suspect became an important factor in determining whether exigent circumstances exist to justify a warrantless blood withdrawal.
Not a Blanket Authorization for Warrantless Blood Draws
The Mitchell decision does not mean that all warrantless blood draws on drivers suspected of DUI will be upheld. Even the U.S. Supreme Court left open the possibility that a warrantless blood draw may be unreasonable in certain situations, even if the driver is unconscious. A warrantless blood draw must still be premised on probable cause. And, while the Court did not carve out specific exceptions to its holding in Mitchell, the fact that the Court was willing to acknowledge that its holding may not apply in every circumstance should encourage drivers charged with DUI following a warrantless blood draw to seek legal assistance.
Warrantless blood draws that are conducted without probable cause to believe a driver is driving under the influence, or those performed where law enforcement officers could have easily obtained a warrant, may be successfully suppressed. Deciding to file a motion to suppress and filing such a motion in a timely manner may both be difficult for individuals without legal training. An experienced DUI defense lawyer in California can assist drivers facing DUI charges in determining whether a motion to suppress blood or breath test results should be filed in their cases.
Sometimes people will go to extreme lengths and incur substantial expenses in the name of “proving” their innocence. Case in point: a man in Florida was cited for speeding through a 15-mile-per-hour school zone and given a ticket that carried a $404 fine. Rather than pay the fine, the man embarked on a mission to prove his innocence and demonstrate that the school zone lights were not engaged and flashing at the time he was ticketed. After considerable expense of time and effort, the man’s quest was ultimately unsuccessful. The court hearing his case found him guilty of speeding and ordered him to pay the fine. This was despite video evidence suggesting that the school-zone lights were malfunctioning at the time the individual was pulled over and cited.
Examples of “Do-It-Yourself” DUI Defenses
The effort this individual from Florida undertook in combating his speeding ticket may be appealing to others charged with DUI in California. Following an unjust, unlawful, or baseless DUI arrest, a person may be as committed to proving their innocence as was this individual. As a result, the person may try to:
- Video-record themselves performing field sobriety tests sober to demonstrate that they could not perform these tests correctly even if they did not drink
- Record statements from others at a bar or restaurant from which the person left, saying that the person was not drunk or did not appear to be impaired
- If stopped for an equipment violation, take photographs of your vehicle to show the allegedly-faulty equipment was actually working properly
- Investigate the officer and obtain copies of the arresting officer’s certifications, disciplinary reports, and personnel records
- Hire experts or forensic scientists to cast doubt on the testing methods or the manner in which the person’s blood or breath sample was analyzed
- Find inconsistencies or errors, no matter how miniscule, in the officer’s report or affidavit
Exploring these and other potential defenses can easily consume a significant amount of time and require the investment of considerable financial resources. Those who choose to take this “do-it-yourself” approach to handling their DUI case may choose to forego legal counsel, believing that these potential avenues of defense will be more effective than any assistance an attorney could provide. And while some of these DIY methods may, in fact, produce exculpatory evidence, it may still nonetheless be inadmissible for a number of reasons.
Troubles with “Do-It-Yourself” DUI Defenses
As understandable as a person’s desire to represent themselves and handle their own DUI defense may be, such efforts are fraught with peril. Most significantly, much of the “evidence” the person spends so much time and effort in securing may ultimately not be helpful at a hearing or trial because:
- The evidence is deemed irrelevant or immaterial to the central issues of the case
- Experts are not properly qualified in order to give an opinion in court
- Subpoenas for records and documents are not properly drafted and timely served on the right individuals
- Cross-examination of the officer and the prosecution’s witnesses is not conducted in a helpful or persuasive way
- Helpful witnesses are not brought to court to testify, and their out-of-court statements become inadmissible hearsay
- Video recordings are not properly authenticated and shown to be reliable representations of the stop or investigation
Needless to say, evidence which may help prove innocence, may not be admissible in court unless a person knows the legal intricacies of admitting evidence.
Drivers who attempt to “prove their innocence” also tend to miss opportunities to attack the credibility of the prosecution’s witnesses and evidence. For example, while searching for a witness who can testify that the driver was not drunk when they left the bar, the driver may fail to move to suppress an incriminating breath or blood test results in a timely manner. Or, while the driver is busy attempting to “reconstruct” their performance on the field sobriety tests, they may forget to request the officer’s certifications or maintenance records of the breath testing machine. Or, quite simply, they may not know what to ask and how to ask it during cross examination of the prosecutor’s witnesses.
The Alternative to “Do-It-Yourself” DUI Defense – Hire an Attorney
Not only is an attorney able to help drivers facing a DUI charge decide on an appropriate path forward in a person’s case, but an attorney can also ensure the evidence needed to support those strategies is available for use in court. This is critical, because even the most well-considered defense strategy is of no use if it does not work in the courtroom.
For these reasons, it is vital that individuals charged with driving under the influence in California seek out and hire an experienced DUI defense attorney as soon as possible. A lawyer can work with an individual charged with DUI to evaluate the various defenses available to the person and pursue those strategies that have the greatest chance for success. These may include strategies to present exculpatory information in the proper manner, attacking the admissibility or credibility of the prosecution’s evidence, or a combination of the two.
A Driver’s Rights are Also at Risk When Representing One’s Self
Another significant danger that drivers who choose to handle their own DUI cases may risk is waiving (giving up) constitutional and statutory protections often overlooked by the “pro se” (in one’s own behalf) defendant. These include rights to confront and cross-examine the prosecution’s witnesses, the right to not be compelled to testify against one’s own interests, and the right to a speedy trial before a jury. When these rights are violated or infringed upon by the prosecution, the individual must take prompt and appropriate action to assert these rights or risk losing the ability to do so.
Choose Experienced, Reputable Legal Representation
When it comes to choosing whether to represent yourself in a DUI case or whether to obtain a lawyer’s help, there really is no choice: an attorney’s assistance can make a significant difference in the outcome of your case as well as how swiftly your case may resolve. No matter how strongly a person may feel that their charges are unjust or unfounded, or how confident one is in their own advocacy skills, a lawyer’s advice and skill is necessary to ensure one’s rights are protected and charges are subjected to the toughest scrutiny.
Prosecutors in California and other states are thrilled when they receive a DUI case from law enforcement officers which includes results from a blood draw of the suspect driver. Unlike breath testing machines like the Intoxilyzer, which are notoriously unreliable devices for measuring actual breath alcohol concentration, blood tests are more accurate. However, a blood draw can only happen if law enforcement officers get a warrant or get the person’s consent.
Consent Generally in California DUI Cases
The Fourth Amendment protects people from unreasonable searches and seizures by the government. This means that law enforcement must generally obtain a warrant before they can conduct searches of private property or persons. A blood draw, by literally going into a person’s body to extract evidence in a criminal case, is a search and seizure for Fourth Amendment purposes. Thus, any blood draw conducted by law enforcement must be “reasonable” or else the fruits of the search may be suppressed. In order to be “reasonable,” a search or seizure must be performed according to a validly-issued search warrant or an exception to the warrant requirement must apply.
The consent of the person to be searched has long been recognized as an exception that relieves law enforcement of their obligation to obtain a warrant for the person’s blood. Stated another way, a person can consent to a blood draw in a DUI investigation, and this consent means that law enforcement does not need to first get a warrant. So long as the person’s consent is knowing and voluntary, the blood draw and the test results that follow will all be admitted into evidence.
As mentioned, to be valid, generally speaking, consent must be freely and knowingly given. This means that a person’s decision to give consent cannot be unduly influenced by improper police behavior or pressure. Similarly, the person’s choice of whether to give consent must be a choice that is informed and not impacted by false legal information. If consent is not freely and voluntarily given, then officers may not be able to rely upon it to search or seize evidence, including a blood sample, unless they obtain a warrant.
Drivers Do Not Need to Consent to a Blood Draw
Obtaining a warrant can be a hassle, especially for an overworked or tired officer or deputy. As a result, that officer or deputy may attempt to get a driver’s consent for a blood draw rather than go through the process of obtaining a warrant. The officer may indicate, for example, that California’s implied consent laws mean that the driver must submit to a blood test whether the driver wants to or not. Or the officer may attempt to coerce consent by threatening the driver with additional criminal or administrative penalties for refusing to give their consent.
It is true that California does have an implied consent law, which requires drivers who have been arrested on suspicion of a DUI to submit to a breath or blood test. If a driver refuses, the officer must obtain a warrant, and the driver can be subject to additional penalties being imposed for the refusal. The constitutionality of this implied consent law, however, is in question thanks to a 2016 U.S. Supreme Court decision, Birchfield v. North Dakota. In that case, the Supreme Court of the United States held that a North Dakota law that criminalized a driver’s refusal to submit to warrantless blood tests incident to arrest was unconstitutional and violated the driver’s Fourth Amendment rights.
In light of Birchfield, California’s implied consent law as applied to warrantless blood draws is now of questionable constitutionality. The Court in Birchfield held that it was unconstitutional to create a separate crime to refuse a blood test, but California does not make it a separate crime. It only imposes additional penalties. The court has yet to extend the ruling to merely imposing additional penalties, rather than making it a separate crime to refuse. This means that, for now, drivers who are arrested for DUI should not feel compelled to consent to a blood draw.
Defenses in a DUI Blood Draw Case
If a driver consented to a blood draw, there may still be several ways to defend against the DUI charge. Just as is true with breathalyzers, there are procedures that law enforcement officers, or medical professionals at the direction of law enforcement officials, must follow when performing a blood draw. These are designed to ensure the blood sample is collected in a safe manner that minimizes the risk of contamination of the sample. If these procedures are not followed, a motion to suppress may keep the blood test results from being admissible – even if the driver consented to the test.
In a similar way, blood test results obtained by consent may be suppressed if officers obtained the driver’s consent through deceptive, unfair, or illegal actions. To be valid, consent must be freely and knowingly given by the driver. An obvious example of invalid consent would be “consent” obtained through physical force or the threat of physical force. Officers cannot threaten bodily harm to drivers and thereby obtain their consent to blood testing, nor can officers make false statements about their right to search without a warrant. Consent given by a driver after an arresting officer says they will be “locked up and the key thrown away” for refusing a blood test is not consent that is “freely” given.
Finally, drivers remain free to revoke any consent previously given up to the moment the blood draw is actually completed. If the driver clearly communicates that they are withdrawing their consent to a blood draw, officers are required to proceed as if consent had never been given and obtain a warrant for the blood draw. If they do not, the blood draw and results may be successfully suppressed.
Other defenses may be available, but some may require a careful and detailed analysis to know whether they are applicable in a given case. Drivers facing DUI charges should discuss their case with experienced legal counsel as soon as possible.
The facts of a recent news story from Edgewood, Delaware are repeated countless times across the United States on a daily basis: a driver is arrested for driving under the influence and is found to have been previously convicted of DUI one or more times. In the story from Delaware, a driver was arrested for his fifth DUI offense after rear-ending another vehicle. This individual, though, is not unique. Surprisingly or not, it is not uncommon for driver drivers to have been arrested and charged with their sixth, seventh, or eighth DUI offense. The record likely belongs to Allen Warner of Wisconsin, who is believed to have accumulated 15 DUI convictions in his lifetime.
Penalties Increase for Each Subsequent DUI in California
Accumulating DUI convictions is no contest or game, however. Even having one previous DUI conviction can mean higher fines and longer jail sentences, at a minimum. In California, for example, a driver with no prior convictions for DUI can expect to spend no more than six months in the local county jail and be fined no more than $1,000. If that person is convicted of a subsequent DUI within 10 years of their first, then the person could serve between 96 hours and one year in jail, not including the other conditions that a court will likely impose, which can include longer probation and an ignition interlock device (note that some counties in California require an ignition interlock device for a first-time DUI). If the driver is convicted yet again, then they can expect to serve a minimum of 120 days in jail.
Drivers who have three or more prior DUI convictions and who are arrested for a subsequent DUI may be charged with a felony DUI in California. Also, once a driver has been convicted of a felony DUI, then each subsequent DUI arrest will be charged as a felony. Felony DUIs in California may result in the imposition of a three-year prison sentence on top of fines and fees, not to mention the likely other conditions that the court will impose.
There are collateral consequences to multiple DUI convictions in California as well. One’s first DUI conviction can lead to their license being suspended for 6 months; that time can increase to one year for a second DUI conviction and three years for a third conviction. As mentioned, other conditions may be imposed, such as AA meetings, a longer DUI program, a Hospital and Morgue Program, MADD’s Victim Impact Panel, and possibly even alcohol rehab.
Prior “Convictions” in California DUI Cases
In determining how many prior convictions a driver has accumulated, the prosecution will look at the driver’s driving record and criminal history. “Convictions” include not only DUI convictions from California, but also convictions from other states for offenses that would be considered a DUI in California. In order for an out-of-state conviction to count as a “prior,” the prosecution must produce a certified record or abstract of judgment from the jurisdiction where the prior, out-of-state DUI occurred. This evidence must clearly establish that the driver’s prior out-of-state conviction resulted from the defendant actually driving under the influence. A driver who was convicted in another state for being in “actual physical control,” for example, may be found to not have a prior “conviction” for purposes of California’s DUI law because California requires that a person actually drive the vehicle.
Defending Against a DUI Charge with Prior Convictions
In light of all of this, when a person is charged with their second, third, or fourth DUI in California, a defense strategy must not only analyze the evidence of the current DUI charge but also the evidence of the alleged prior DUI convictions. By doing so, the driver may be successful in avoiding some of the more severe penalties that accompany a DUI conviction with prior offenses even if the person is still found guilty for DUI in the present case.
There are two primary ways to defend against prior convictions that are being relied upon to enhance the severity of the current DUI. The first is to demonstrate that the prior out-of-state conviction is not comparable to a California DUI and should not be considered a prior conviction. As noted above, if the out-of-state offense would not be considered a DUI if it had occurred in California. This requires more than simply looking at how the out-of-state jurisdiction titles its statutes. Whether the out-of-state offense is called Operating While Impaired (OWI), Driving While Impaired (DWI), or Operating Under the Influence (OUI) is immaterial: what matters is if the conduct involved in the prior out-of-state incident would have been considered DUI under California’s laws. This is known as the equivalency test and is found at California’s Vehicle Code Section 15023(c).
A second avenue that may be available to drivers is to attack the evidence establishing the prior DUI conviction. In order for the prior conviction to count, there must be some objective evidence that the person was, in fact, convicted of DUI or a comparable offense. Citations, charging documents, and even financial records showing that the driver paid a fine or court costs are generally not enough to meet this burden in a criminal DUI case. Instead, certified records from the court where the prior conviction occurred, showing that the person either admitted guilt or was found guilty, is necessary.
There may still be other ways to keep a prior DUI conviction from affecting your present case. For example, if the prior DUI conviction did not occur within the preceding ten years, then it may not be able to be used as a prior conviction in the present case. Similarly, a court may not consider a prior DUI in California unless that was the offense of which the driver was actually convicted. If the charge in the prior case was amended and the driver actually pled to a lesser non-DUI offense, then that prior conviction may not be used to elevate the severity of the present DUI charge. This does not apply to a conviction for a “wet reckless.” Although a wet-reckless is a charge that is reduced from a regular DUI, it typically counts as a “prior” for purposes of future DUI charges.
Experienced Legal Assistance is Always Helpful When Dealing with DUIs
As you can see, when a person suffers a California DUI after they have already suffered one can create some very technical and nuanced legal issues to be hashed out in court. A California lawyer well-versed in the state’s DUI laws is best suited to help drivers facing their second, third, or fourth (or more) DUI charge. Having legal counsel who can analyze those prior convictions may mean the difference between spending a weekend in jail or spending the next several months behind bars.