Category Archives: Field Sobriety Tests

Passing on the Breathalyzer?

It is not uncommon for people arrested on suspicion of a California DUI to mistaken believe that it is in their best interest to flatly refuse the breathalyzer. Not knowing the correct thing to do in this scenario can be the difference between becoming convicted of a California DUI and not, and unfortunately, the right thing to do is a little more complicated than merely refusing the breathalyzer or not.

When people refer to a “breathalyzer” during a California DUI stop, they actually referring to two different tests. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

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.”

The PAS roadside breath test, like other field sobriety tests such as the walk-and-turn test, the horizontal gaze nystagmus test, and the one leg stand test, are optional. Although an officer might threaten to arrest someone for refusing the optional breathalyzers, a driver should stand their ground and politely refuse to complete any field sobriety tests. Despite what the officer might say, they are optional and are only meant to give the officer the evidence they need to arrest the driver.

In fact, the officer must advise the driver that the roadside breath test is 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.”

As stated above, providing a breath sample to an officer during the PAS test only give the officer the evidence they need to arrest a driver. Whether a driver provides the officer that information or not, the officer will have to make the decision to arrest a driver on suspicion of a DUI or not. In order to arrest a driver on suspicion of a California DUI, the officer must have probable cause. The probable cause can consist of driving patterns indicative of intoxication, bloodshot eyes, slurred speech, smell of alcohol on a driver’s breath, admissions of drinking or intoxication, and, yes, a reading of the pass test indicating a BAC of 0.08 percent or higher.

If the officer meets the probable cause standard by obtaining and/or observing enough evidence that a driver is driving under the influence, the officer can lawfully arrest the driver on suspicion of driving under the influence. Once this happens, California’s Implied Consent law takes effect.

California’s Implied Consent law, codified in California Vehicle Code section 23612(a)(1)(A), “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].”

Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver opts not to give blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.

So should you pass on the breathalyzer?

Pass on the roadside “PAS” test. Submit to the chemical test required under California’s Implied Consent law (See Breath or Blood Test After a California DUI Stop).

Stopping as a Sobriety Checkpoint

Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer. So how can law enforcement do this without having a warrant?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

 

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep you mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.

 

Breath or Blood Test After a California DUI Stop?

Let’s imagine a common DUI scenario.

A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.

Which test should the driver choose? Breath or blood?

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

The blood test, however, is not infallible. See my previous post:

The Dirty Skin Defense

Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.

 Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:

Are Breathalyzers Accurate?

Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.

Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.

Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)

 

Do I have to Take a Breath Test?

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

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.”

The California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver 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.”

If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “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, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the 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.