Tag Archives: breath test
Cops, like all employees, can be good, bad, or somewhere in the middle. However, it would be difficult to argue that there are many employment positions out there that require the same degree of care, competency and honesty as law enforcement. Sometimes an arresting officer is just a good person who made a bad judgement call. Other times, the officer abused their position. There are serious consequences when a police officer’s misconduct affects a DUI case. Police misconduct in DUI cases is very much real and happens more often than enforcement departments admit or that the public is aware of. In early 2019, amidst public call for police accountability, California enacted a transparency law, which essentially makes police misconduct records available to the public.
After the law was enacted, the Modesto Bee dove into newly released records and found numerous accounts of police misconduct. The documents detailed a lot of dishonesty. Of the records that the outlet uncovered, what it found as probably the most egregious misconduct, was that of an officer who had previously received commendations and public praise for his DUI enforcement efforts. Unfortunately, his elevated DUI numbers were the product of misconduct.
Footage did not match his written reports, which included that he observed signs of intoxication when none were present on the footage and relying on an “odor of alcohol” when the suspect’s BAC turned out to 0.00 percent. The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist and arrested them without probable cause.” Additionally, an internal affairs review of his record concluded that the officer’s conduct was “often rude, belittling, abrupt and arrogant.”
All too often, this type of misconduct is chalked up to as an overzealous pursuit of justice on the officers’ part. Sometimes misconduct isn’t so egregious as what the Modesto Bee’s uncovered but can just be incompetently handling cases. The Modesto Bee’s efforts are only a small glimpse into misconduct in DUI Cases. Unfortunately, misconduct is not an anomaly and virtually every department struggles to address police misconduct within. Because of transparency laws like those in California and other states, law enforcement is coming to grips with the fact that they can’t keep turning a blind eye to bad policing.
Some examples of police misconduct, include:
- Invalid Investigatory Stop: A police officer must have reasonable suspicion that a crime occurred to stop your vehicle. This means that the officer must be able to show he or she had a supported reason for stopping you other than mere suspicion. Generally speaking, traffic violations and equipment failures (i.e., a blown-out taillight), are examples of proper reasons for a stop. However, it is misconduct for an officer to stop without any reason, or, since many officers know this, to fabricate the reason for the stop in their police report.
- Invalid Arrest: Likewise, a police officer must have probable cause that a driver was DUI before they can be arrested. Probable cause means that the officer has reasonable and trustworthy facts that the driver is DUI. It is misconduct for an officer to arrest without probable cause, or, since many officers also know this, to fabricate the reasons for the arrest.
- Out-Of-Uniform, Unmarked Vehicle Stop: In some states, off-duty police officers who are neither in uniform nor in a marked vehicle cannot conduct traffic stops. In those states that prohibit out-of-uniform, unmarked police vehicle stops, doing so is misconduct and evidence obtained from such a stop can be suppressed.
- Improper Administration and Recording of Field Sobriety Tests: There are several standardized field sobriety tests that an arresting officer can use to determine the sobriety of a driver. That officer must understand and properly administer the test, as well as, properly evaluate the results in order for his conclusion regarding intoxication or impairment to be supported. Improper administration of the field sobriety test may invalidate the test and cast reasonable doubt. It should go without saying that intentional or negligent misrepresentation of the driver’s performance is also misconduct.
- Improper Administration of Breathalyzers and Blood Test: Most states require that an officer strictly follow an approved methodof administering breathalyzers and blood tests. Whether a driver is submitting to the optional pre-arrest breathalyzer test, or the required post-arrest chemical tests (that can be either a breath test or a blood test), intentional deviations or mistakes made during this process are considered misconduct and can result in suppression of the results.
- Hostile Attitude: Though certainly not always the case, some officers struggle to be civil to suspects, defendants and attorneys. Often, video footage, like those required in the type of transparency laws that California has enacted, expose the hostile attitude often taken by officers against drivers suspected of drunk driving. Often the hostile attitude is the result of the officer’s preconceived notion that the driver is drunk even though the officer has nothing to base their opinion on.
- Failure to Document: Speaking of transparency laws, there is absolutely no excuse for the lack of a video footage or other documentation of police interactions with drivers in those departments who employ it. Logic would dictate that documentation and video footage would only assist and corroborate an officer’s observation. So why is it that the footage is often left out? Sometimes, video footage that is supposed to be available isn’t because it has gone missing, exists as a corrupted digital file, or the equipment wasn’t working. Would it have corroborated what the officer wrote in his or her report, or would it have shown something else, perhaps misconduct?
Fighting for your rights does not, in and of itself, mean that you are fighting against the officer. However, if an officer fails to follow normal department protocols, whether intentionally or not, your attorney should expose the misconduct and possibly get the a DUI dismissed or at the least to persuade the prosecutor to reduce the charges or penalties.
Facing a DUI charge can be a life-changing, stressful, and especially confusing experience. Fortunately, with a good defense strategy, your defense attorney might be able to persuade the prosecution to drop or reduce the charges, keep your driver’s license, or even win at trial. A DUI charge does not have to be the end of the world, and in fact, there are a number of strategies to challenge the evidence being used against you. The following list, though not exhaustive, illustrates some of the issues that can be attacked in order to defend a DUI charge.
Lack of Cause to Stop:
The Constitution requires that law enforcement have a certain amount of information that a person committed a crime before that person can, at a minimum, be stopped by law enforcement. If an officer believes that a driver is under the influence, the officer cannot just stop the driver based on that hunch. There must be some facts that would lead an officer to reasonably believe that the driver is under the influence, such as poor driving patterns. Or, in most instances, an officer will observe a driver commit some other traffic violation, such as speeding or running a red light, as the basis for the stop. In any event, an officer cannot merely stop a driver based on a hunch.
Lack of Probable Cause to Arrest:
If you are arrested for a DUI, one of the first places to start is to question whether the officer had probable cause to make arrest. Having probable cause means that the officer had reasonable and trustworthy facts that the driver was intoxicated. The probable cause for a DUI arrest usually comes from the officer’s observations after the initial traffic stop (sometimes before if poor driving patterns were observed prior to the stop). Probable cause can, but not always, be satisfied by a showing of pre-arrest blood alcohol results, officer testimony about the driver’s symptoms of intoxication (blood shot eyes, slurred speech, smell on breath), poor driving patterns, and poor performance on field sobriety tests. Both forms of evidence can be difficult to challenge, but not impossible. If the officer did not obtain reasonable and trustworthy facts that the driver was intoxicated after having stopped them, then the officer cannot arrest a person for a DUI.
Reasonable Doubt at Trial:
While bad driving gives a cop enough cause to pull a driver over, absent any other indications that a driver was under the influence, i.e., BAC results or physical indications such as red eyes or slurred speech, poor driving alone is unlikely to satisfy the probable cause requirement for an actual arrest. However, if an officer observes poor driving and observes other indications of intoxication such as red eyes or slurred speech, they’ll probably have the reasonable suspicion to stop a driver and even may have the probable cause to arrest a driver. However, if a person is stopped and arrested on suspicion of a DUI, it does not mean that they committed a DUI nor does it mean that they will be convicted of a DUI. At trial, the prosecutor must prove beyond a reasonable doubt that a driver was above a 0.08 BAC (0.05 in Utah) or that a driver was under the influence while driving.
One way to create reasonable doubt that a person was under the influence is to emphasize facts that would indicate that the driver was sober, such as good driving habits. Some DUI defense attorneys might ask the officer whether the driver engaged in good driving habits. If available, a passenger can testify as a witness that the driver was operating their vehicle as a sober person would have. Because prosecutors will use poor driving patterns as one consideration in trying to prove that the driver was intoxicated, DUI defense attorneys can raise reasonable doubt by showing that even sober drivers make the same or similar mistakes.
Similarly, officers, as stated, sometimes rely on physical tells such as red eyes, slurred speech, unsteadiness, a flushed face, as well as countless others. There are many reasons, apart from alcohol or drug consumption, that can explain why a person might have these physical symptoms. For example, allergies or other irritants can sometimes cause bloodshot or watery eyes and a flushed face. Additionally, fatigue and physical disabilities can lead to poor field sobriety test performance. Other explanations could include a cold, fatigue, and eyestrain or irritation. Reasonable doubt can exist if the driver can demonstrate reasons, other than intoxication, for the physical symptoms.
It should be emphasized that driving patterns and physical symptoms are only a few things a prosecutor can introduce to try to prove beyond a reasonable doubt that a driver was intoxicated. Facts which might give rise to a reasonable doubt should be evaluated on a case-by-case basis by a skilled DUI defense attorney.
Unreliable Field Sobriety Tests:
Field Sobriety Tests have faced criticism for their accuracy. If an officer conducts a field sobriety test and uses it as the basis for determining that the driver was intoxicated, there are many ways to overcome the test results. For instance, one of the main things that officers evaluate during a field sobriety test is the driver’s coordination. Several things can affect a driver’s balance and coordination, including shoes, natural athletic ability, clothing, fatigue, and nervousness. Many people, even when sober, can become extremely anxious when subjected to a field sobriety test. Anxiety can make it very difficult to perform the test well. See Failing the Field Sobriety Tests Without being Drunk for a further discussion on field sobriety tests.
Incorrect Administration and Inaccurate Results of the Breathalyzer or Blood Tests:
One of the most useful pieces of evidence that an officer can use to make an arrest or that a prosecutor can use to try an prove a DUI beyond a reasonable doubt is the blood alcohol content of the driver. A driver’s BAC reading can be obtained through a pre-arrest breathalyzer, a post-arrest breathalyzer, or a post-arrest blood test. There are, however, a number of reasons why these tests might be less than accurate.
If an attorney can prove that the officer or test administrator did not comply with test requirements, that the breathalyzer machine was faulty, or that the phlebotomy technician was not competent, it is possible to get the test results thrown out. In some jurisdictions, like California, a specified period of time must pass before administering a breath test to make sure the driver hasn’t ingested or regurgitated anything which might affect the results.
Breathalyzer machines require strict and frequent calibration. Attorneys can generally request the calibration records for the machine that was used during your breath test to challenge the breathalyzer results. If the machine was not calibrated properly, the reading may not be admitted against you.
Sometimes, medical conditions like hypoglycemia, low-carb diets like paleo or Atkins, and diabetes can even inflate a blood alcohol content reading.
As you can see, we are only just scratching the surface of the possible DUI defenses that can be raised. More importantly, as you can see, those few defenses mentioned here should be enough for you to realize that trying to defense a DUI on your own is never a good idea. If you happen to find yourself in the unfortunate position of having to defend a DUI, contact a skilled DUI defense attorney to explore all possible defenses.
You had that extra glass of wine right before the dessert course, but was it too much? Do you make a trip to the bathroom to see if you can make it there in a straight line? Stare at yourself in the mirror to see if you can determine if your eyes are glazed over? Or perhaps attempt to text a friend to see if you can still string together a coherent sentence? Whatever your previous methods may have been, in the near future, it may be as simple as wearing a wristband.
Researchers at the University of Illinois at Urbana-Champaign have been working on a wearable device that can track the wearer’s level of inebriation and they believe it is showing some promise.
The wearable wrist devices have begun to be put to the test, and current data is showing that they can fairly accurately measure how much alcohol a person drank and how intoxicated they may be.
The wristbands have sensors built in that collect raw transdermal alcohol concentration (TAC) data which essentially measures how much ethanol is in your sweat on your skin. The data is then sent to an app via Bluetooth and a graph to shows the amount of alcohol in the wearer’s system. Another version of the wristband works with Apple Watches by swapping the bands with a sensor-equipped band.
The system is not yet perfect as it is no surprise that TAC is not quite as accurate as law enforcement-used blood tests in determining someone’s blood alcohol content (BAC). Studies maintain that the most accurate way to determine the amount of alcohol in one’s system is through a BAC reading from a breathalyzer, blood, or urine test.
Researchers are working to perfect the correlation between the TAC numbers taken from the device and actual BAC. The current data shows that the numbers are close, but aren’t identical. The hope is that by being able to find an accurate correlation between the data points, they will be able to offer a less invasive method of blood alcohol content testing.
One of the issues that researchers are still trying to work out is the initial time lag of the device. It currently takes between 24 and 30 minutes for the readings to start from the start time of drinking. Medical journals have pointed out that “More reliable and robust prototypes will be required. Also, field testing in large and diverse groups of people drinking variable alcohol doses in real-world conditions will be necessary for comprehensive assessment of the relationship between transdermal and blood alcohol concentrations.”
It will be interesting to see how quickly the analysis can be processed with the progress of science. It will also be interesting to see if the integration of such products into the mainstream public will help to reduce the incorrect assumption of some drivers believing that they are not impaired and can safely drive themselves and others home. Or perhaps the first official integration will not be to the public at all, but rather in the hands of law enforcement who will start to use a simple touch to quickly and accurately determine a person’s alcohol level.
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).
I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.
According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”
With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”
Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.
In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution. In some instances, there were no standards on how to prepare and operate the machines.
The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.
Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.
In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.
The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.
At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.
“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”
The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.
Unfortunately, the California Supreme Court sided with Goldsmith.
“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”
The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”
Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.
Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.