Category Archives: Field Sobriety Tests

Roadside Oral Swab Tests Coming?

Breathalyzers only test for the presence of alcohol.  And until relatively recently that was sufficient.  But with the increased use of marijuana and drugs — both illegal and prescribed — it was inevitable that new tests would be needed.  And as I wrote in a post here one year ago, the California legislature had been working with a bill to authorize new tests of breath and oral fluids.  See California Proposes New Law to Allow Roadside Marijuana Testing.  That bill apparently was put on the back burner and died.

Now it appears that a new bill is being proposed that would permit law enforcement to take swabs from the mouths of drivers and test them with new devices — all at the scene of the roadside investigation.


Driving While High?  California Lawmakers Want to Use New Test to Check

Sacramento, CA.  April 6 - With medical marijuana in widespread use and a ballot measure planned to legalize recreational pot in California, state officials Tuesday proposed using new technology to catch the increasing number of motorists who are driving while high.

Legislation would allow law enforcement officers to use oral swab tests to strengthen cases when there is probable cause that a driver is impaired and the driver has failed sobriety field tests.

A hand-held electronic device would test for the presence of marijuana, cocaine, amphetamines and pain medications, including opiates, on the swab, according to Republican Sen. Bob Huff of San Dimas, who authored the bill.

“Sadly, we’ve become a nation of self-medicating, careless people,” Huff said. “The public is naïve in understanding how dangerous our roads are made by people who are abusing opiates, meth and cannabis.”


The use of small, handheld breath testing devices have proven to be less than accurate and reliable.  And even laboratory drawing and testing of blood for marijuana and a wide variety of drugs in blood samples is considered inconclusive more often than not.  Somehow, I question whether cops will now be capable of obtaining uncontaminated samples of saliva on the side of a busy and dirty highway and then testing those fluids with a small, "hand-held device" — and getting anything even remotely reliable and accurate.

"Proof beyond a reasonable doubt"….DUI version.  (See my post, Proof Beyond a Reasonable Doubt?)
 

What is the Difference between a PAS Test and a Chemical Test?

Most people are unaware that many California DUI stops include two separate and distinct breath tests. And people are often confused about whether they must provide a breath sample to both or either test. It is admittedly confusing, and most people are surprised when I tell them that one of the breath tests is required and the other is not.

The two tests I am referring to are 1.) the preliminary alcohol screening test (PAS test), and 2.) the chemical breath test. While they are both “breathalyzer” tests, their distinction lies in when the DUI arrest is made.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Following a California DUI stop, but before a DUI arrest, an officer may request that the suspected drunk driver perform field sobriety tests which, most people know, includes the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. What most people don’t know, however, is that the breathalyzer test requested by officers before an arrest is also a field sobriety test. This is the PAS test. And like the other field sobriety tests, the PAS test is optional.

The investigating officer must advise the DUI suspect that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Field sobriety tests, including the PAS test, are a means to determine if the officer has the required probable cause to arrest the DUI suspect for a California DUI.

If the officer has the requisite probable cause to make an arrest, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a PAS test and a chemical test.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, licensed California drivers have impliedly consented to provide a chemical test following a lawful DUI arrest.

The post-arrest chemical test can be either a breath test or a blood test. If a person opts against providing blood, they must provide a breath sample. And for this breath test, they will be taking a breathalyzer very much like the PAS test.

The short version of this article is this: A pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample and provided that the arrest was lawful.

U.S. Supreme Court to Decide: Can Refusing a Breath/Blood Test Be a Crime?

Three weeks ago, I posted about the Minnesota Court of Appeals decision which held that a motorist suspected of drunk driving could not be criminally prosecuted for refusing to submit to a blood test.  See Is It a Crime to Refuse to Give Blood in a DUI Case?   Two days later, I reported that the Hawaii Supreme Court decided that a DUI suspect’s consent to a breath test was invalid — and the test inadmissible — because it was coerced by the threat of criminal prosecution for refusing.  See State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent.  

Doesn’t this amount to charging the driver with a crime for asserting their Constitutional rights?

Last week, the United States Supreme Court agreed to review three cases from two states involving this increasingly controversial approach to drunk driving of prosecuting DUI suspects for refusing to take chemical tests.


Supreme Court to Rule on Drunk-Driving Breath Tests

Washington, DC.  Dec. 11 —  Can states charge motorists with a crime for refusing to take a breath test on suspicion of drunk driving when police lack a warrant? The Supreme Court will decide.

The justices agreed Friday to hear cases out of Minnesota and North Dakota in which drivers were charged with a crime after they refused to take "deep-lung" breath tests. Thirteen states make it a crime to refuse blood alcohol tests: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia.

In addition, California, Mississippi, Missouri and Montana have considered such laws, according to lawyers for the challengers in the Minnesota case.

"Nationwide, it is certain that tens, and perhaps hundreds, of thousands of people are subjected to criminal penalties under these statutes every year — and if the arguments presented here are correct, the federal constitutional rights of all of these people are being infringed," their brief to the high court said…

The court ruled in 2013 that police could not conduct blood tests for drunk driving without a warrant. Based on that, the challengers in the Minnesota and North Dakota cases said, refusing such tests should not constitute a separate crime.


Can a DUI suspect be charged with a crime for asserting his constitutional right under the Fourth Amendment — that is, his right not to have his body searched for blood or breath without a warrant? 

The following is an excerpt from an editorial appeared in this morning’s Los Angeles Times:


Sobriety Tests and the Law

…Last week the U.S. Supreme Court agreed to decide three cases in which motorists suspected of driving drunk are contending that their constitutional rights were violated….May a state criminally prosecute a motorist for refusing to submit to a blood, breath or urine test in the absence of a warrant?…

It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant.  Not only do such laws punish suspects for asserting their rights under the Fourth Amendment; they also effectively provide an end run around the court’s 2013 decision….
 

It will be interesting to see if the Supreme Court finds yet one more "DUI Exception to the Constitution".
 

Should You Take a Breath or a Blood Test?

One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.

Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?

Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.

Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.

The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.

If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.

The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:

http://ltduiblog.wpengine.com/2014/09/09/are-breathalyzers-accurate/

In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.

While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.

If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.

So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.

 

Crime Lab Breath Test Results “Unreliable”

I’ve written repeatedly in the past about the inherent inaccuracy and unreliability of breath testing machines (generically referred to as "breathalyzers").  See, for example, How Breathalyzers Work — and Why They Don’tWhat Makes Breathalyzers Inaccurate? and Ohio Rejects Popular Breathalyzer: Accuracy Challenged.  And see a treatment of the issue on my law firm’s website, Breathalyzer Accuracy.  

Independent of the inherent problems in the machines and the variations of human physiology involved, a further issue has always been the reliability of the governmental crime laboratories responsible for the calibration and maintenance of the machines.  See my posts, Lab Fraud Discovered in Breathalyzer Accuracy ChecksHow to Prove Breathalyzer Accuracy: Falsify the Records and Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up.

As an example, consider the following recent ABC-TV news story:


Forensic Failures at State Crime Labs May Jeopardize Cases

Chicago, IL.  Sept. 23 – Some drunk drivers could go free because of law and disorder at Illinois State Police crime labs.

The ABC7 I-Team uncovered a pattern of forensic failures that could put criminal cases in jeopardy and risk thousands of charges and convictions being thrown out.

Unreliability in science is like a bull in a china shop: it can wreck everything. The Illinois state crime lab is under fire by a criminal defendant who may have been wrongly charged- using evidence with inaccurate or unreliable test results – and under fire by defense attorneys and experts alarmed by what they see as shoddy science.

James Kisla struck a pedestrian on Yackly Avenue in Lisle. According to court records, a couple ran across the middle of a street, into traffic, in front of Kisla’s car.

Kisla wasn’t ticketed in the 2011 accident but a sobriety test had him just beyond the legal limit. Then Kisla’s lawyer discovered this – a 2011 internal audit of the Illinois State Police Laboratories and blood alcohol test inaccuracies.

State police officials tell the I-Team their tests results were accurate.  But the audit called for corrective action – a revision of the labs’ "scientific method" and ordered "in-service training for the state police toxicology section."

Kisla’s lawyer, Don Ramsell, showed the audit to prosecutors.  "The prosecutor decided not to even bring the blood test results into evidence. It only took one day after for the judge to declare Mr. Kisla innocent of all the charges," Ramsell said.

Up to 15 years in jail – but Kisla was cleared because the state police forensic tests were unreliable…

The I-Team found more lab mistakes occurring in the state’s labs. We examined these internal Illinois State Police lab audits and reports going back to 2003 and found numerous blood and urine testing errors. "Test samples (were) switched," there were "mislabeled specimens", a "mix up of results," "improper calibrations" of tests, "improper methods (were) used," and "samples wrongly destroyed."

But Ramsell says the biggest problem is none of the state’s lab results for blood and alcohol tests can be considered reliable. That is because their lab technicians have never performed "method validations" on their testing procedures – a fundamental check and balance in the science world.

"Not only is it completely unacceptable but it’s shocking that no one from the state police ever reported that to anybody," Ramsell said…


Yet the readings from these unreliable machines are automatically assumed by law to be reliable and admissible in evidence — unless the defendant can somehow prove they aren’t.  And once admitted in evidence, the jury in most states is given jury instruction stating that if the reading is over .08%, the defendant is rebuttably presumed by law to be guilty.  See my post, Whatever Happened to the Presumption of Innocence?.