Can You Fail Field Sobriety Tests While Sober?

Monday, May 11th, 2015

I have never seen a police report say that a California DUI suspect “passed” the field sobriety tests performed after a DUI stop. Does that mean that all of those suspects were intoxicated? No.

This necessarily means that people can fail field sobriety tests while sober. But how?

Unfortunately it’s not all that difficult.

Field sobriety tests are notoriously unreliable. Yet law enforcement agencies continue to employ the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test to determine intoxication. These are the tests that the National Highway Traffic Safety Administration has designated as standard. Other tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Field sobriety tests are used to gauge a person’s coordination, balance, and simple motor skills after they have consumed alcohol. And while they may, in fact, test coordination, there are a number of reasons why a sober person might fail a field sobriety test.

Needless to say, most people are both stressed and nervous when they are pulled over and asked to step out of their vehicle. The stress and nervousness inevitably make it difficult to concentrate. Yet officers regularly fail a person for having trouble following the field sobriety test instructions.

A person who is intoxicated may likely exhibit trouble with balance. Lack of balance is what officers look for when a suspected drunk driver performs field sobriety tests. However, balance can be affected by many things, one of which is inner ear problems. The inner ear contains a small organ called the labyrinth that helps us maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.

Physical problems and disabilities can also affect a person’s performance on field sobriety tests. Physical problems such as knee pain or lower back pain may make it difficult to, say, walk heel to toe in a straight line or stand on one leg perfectly still for 30 seconds.

For the same reasons, people who are older or who are overweight may also have trouble performing field sobriety tests that require coordination and balance.

While it may be dangerous to drive while tired, it is not illegal like driving under the influence. However, lack of sleep can cause many of the same symptoms as intoxication. When people are tired they can experience poor balance, lack of coordination, and trouble with motor skills. What’s more, when someone is sleep deprived and tired, they exhibit bloodshot, watery eyes. Unfortunately, bloodshot, watery eyes are amongst law enforcement’s favorite indicators of intoxication.

Perhaps one of the most powerful factors affecting a person’s purported performance on field sobriety tests is the officer’s interpretation of that person’s performance. Law enforcement officers have already decided that a person is intoxicated even before the person performs the field sobriety test. As a result, the officers are going to see what they expect (or want) to see.

I could go on with many other reasons why sober drivers fail field sobriety tests, but that would make this post extremely lengthy. Suffice it to say, field sobriety tests are unreliable and sober people do fail them.

Having said that, drivers have a right not to and should not ever agree to perform field sobriety tests because they will fail whether they were intoxicated or not.  


CHP Officer Stole Nude Photos of DUI Suspect from Her Phone

Monday, October 27th, 2014

I remember as a kid being told to find a police officer if I was ever in trouble, the idea being that we, as citizens, should be able to trust that law enforcement will protect and serve our best interests. As a child, I had no reason to question my parent’s advice. However, as an adult, I find it increasingly difficult to follow my parents’ words of wisdom.

So what is the latest transgression in, what seems like, an ever-increasing upsurge of law enforcement transgressions?

According to court documents obtained by the Contra Costa Times, a California Highway Patrol officer is alleged to have gone into the phone of a DUI suspect whom he pulled over and sent nude images to himself of the DUI suspect.

Sean Harrinton, a five-year veteran of the California Highway Patrol, and his partner pulled over a woman on August 29th of this year for making an unsafe lane change in Northern California. The woman allegedly failed field sobriety tests and was determined to have a blood alcohol content of 0.29 percent. She was subsequently arrested and taken to the local county jail for booking.  

While at the county jail, Harrington secretly went into the woman’s phone and sent himself images of the woman, both nude and in a bikini.

Although the District Attorney’s office and the CHP declined to comment on the case, the Contra Costa Times has reported that a Contra Costa District Attorney investigator has recommended felony computer theft charges against Harrington.

Harrington has been assigned to desk duties pending the investigation.

"We think it’s a horrendous breach of the public trust," said Rick Madsen, a private Danville attorney representing the woman. "We believe Officer Harrington committed a clandestine and illegal intrusion into her privacy which is unspeakable considering his sworn duty to protect the public. My client remains understandably distraught as we await further information about who else may possess the photos and what further investigation may uncover."

Although Harrington’s search of the phone may not have been for the purpose of obtaining evidence against the woman, the breach of privacy is nonetheless disturbingly illegal.

The United States Supreme Court recently unanimously held in Riley v. California, 573 U.S. ___ (2014), that warrantless searches and seizures of digital contents of a cellphones during an arrest are unconstitutional.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ wrote the Court. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The woman apparently had given Harrington the password to her phone for the purpose of obtaining a number from the phone. The scope of her consent was to the phone number and only the phone number, nothing more.

According to court records, the woman’s DUI case has since been dismissed as a result of the investigation into Harrington’s actions. And rightly so. If Harrington was willing to violate the woman’s privacy rights, what else was he willing to do to taint the DUI investigation?


California DUI for Sleep Driving

Monday, September 29th, 2014

We’ve all heard crazy stories about the things people do when they sleepwalk. Robert Wood, a 55 year old chef sleepwalks over to his kitchen to cook on a regular basis. Rachel Ward, a teenager, stepped right out of her second story window while sleeping and fell 25 feet to the ground (she was okay). A woman by the name of Rebekah Armstrong woke to find her husband, Ian, mowing the lawn naked while sleepwalking.

People have also been known to hop into their vehicles and take a drive while sleeping. Under these circumstances, DUI law doesn’t come into play because no intoxicants have been ingested. However, what if the “sleep driving” was induced by sleep aid medication?

California DUI law prohibits people from driving “under the influence” of, not only alcohol, but drugs as well. This includes legal sedative-hypnotic sleep aids like Ambien, Halcion, Sonata, Rozerem and Lunesta.

Now it’s one thing to take one of these drugs and voluntarily drive while conscious. The sedative effects of the drugs can certainly prevent someone from driving with the same caution as that of a sober person of ordinary prudence under the same or similar circumstances.  Therefore, California’s “under the influence” DUI law applies.

But what if someone unconsciously sleep drives as the result of taking sleep aids?

According to the FDA, sleep driving occurs when someone “[drives] while not fully away after ingestion of a sedative-hypnotic product, with no memory of the event.” In 2007, the FDA recognized sleep driving as an “involuntary” act. This was significant because unconsciousness is a complete defense to a criminal charge where the defendant’s actions are the involuntary and the product of the unconsciousness.

The caveat to this principal, however, was that the unconsciousness must not have been produced by voluntary intoxication. This was exactly the issue in the 2012 California Court of Appeals case of People v. Mathson (2012) 210 Cal. App. 4th 1297.

Terry Jack Mathson took prescribed Ambien in an amount that exceeded the prescribed dose. Mathson claimed he was sleep driving when he was arrested for driving while under the influence. The charge was a felony because Mathson suffered three prior convictions within 10 years. He was also charged with being a habitual traffic offender, driving with a suspended license, and driving a vehicle that was not equipped with an ignition interlock device.

Mathson was convicted after the trial judge rejected a jury instruction that they had to find that Mathson was involuntarily intoxicated if it determined that he did not know or have reason to know that the Ambien would cause him to sleep drive.

On appeal, the trial court determined that the proposed jury instruction would give people one “free” sleep driving incident without legal consequences because they would not have reason to know the Ambien would cause them to sleep drive.  Prior to that first incident, sleep driving would be considered involuntary. This would essentially make driving under the influence a specific intent crime, which it is not.

The court concluded that Mathson was liable for driving under the influence because, after taking Ambien for seven or eight years, he should have had reason to know of the drug’s intoxicating effect. In other words, the court rejected the notion that Mathson had to specifically know that he would sleep drive.

Although this is what the court concluded, I question whether Mathson should have reasonably known about his propensity to sleep drive if this was the first incident of sleep driving after seven or eight years of taking the drug.

So a word of caution for those readers out there who take sleep aids: If you sleep drive after taking a sleep aid, you can be convicted under California’s DUI laws even though you are unconscious and may have no recollection of hopping into your car.


PAS Test vs. Chemical Breath Test

Monday, September 22nd, 2014

People are often confused about whether the law requires them to take a breathalyzer during a California DUI arrest. Unfortunately, the answer is just a little more complicated than just “yes” or “no.”

Let me clear up the confusion.

I often use the term “breathalyzer” in my posts for both a preliminary alcohol screening test and a chemical breath test. They, however, are not the same thing. In fact, the type of test being administered will determine whether a person is required to take the test or not.

For chronological clarity, let’s start with the preliminary alcohol screening (PAS) test.

When an officer stops a driver and begins investigating a possible California DUI, they may conduct several field sobriety tests. These tests include the horizontal gaze nystagmus test, the one-leg stand test, or the walk and turn test. The PAS test is a breathalyzer test which is considered a field sobriety test. Like the other field sobriety tests, the PAS test is optional.

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.”

As a field sobriety test, the PAS test is not required. Law enforcement is required to advise that the PAS test is, in fact, voluntary. 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.”

In other words, the PAS test is only used as a means to determine if there is enough probable cause to arrest a person for a California DUI.

However, once a person is lawfully arrested for a California DUI, California’s Implied Consent Law requires a person to submit to a chemical test which can be either a breath or a blood 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].”

This essentially means that if you are licensed to drive in California, you have impliedly given consent to submit to a chemical test if you have been lawfully arrested for a DUI. The operative words here are “lawful arrest.” The obligation to submit to a chemical test only attaches once a person is lawfully arrested. Before that point, no obligation exists.

So then what does it mean to be lawfully arrested for a California DUI?

An officer can arrest someone if they have probable cause to believe that the person is driving drunk. Probable cause exists when an officer has reasonable and trustworthy facts that would lead a reasonable person to believe that the person has been driving drunk.

Officers obtain probable cause for a DUI arrest through the driver’s statements that they have been drinking, driving patterns consistent with intoxication, observations of signs of intoxication, and failure of field sobriety tests…including the PAS test.

Okay, let’s put this whole process into a nutshell.

The officers use the PAS test, which is optional, to determine if there is probable cause for a DUI arrest. If there is probable cause for an arrest, and a person is arrested, they must submit to a chemical test which can be either a blood or a breath test.

Bottom line is: Don’t give the officers the probable cause when you don’t have to. Like other field sobriety tests, always respectfully decline the PAS test.


Can a Person Be Charged and Convicted of Attempted DUI?

Monday, August 11th, 2014

Let’s envision a scenario: a man is drinking rather heavily at a bar. Barely able to stand, the man closes out his tab and stumbles to his car intending to drive home. However, after getting into his car, the man unsuccessfully attempts to fit the key into the ignition because he’s just that drunk. The man then passes out before he is able to start his vehicle. Unbeknownst to the man, an officer has witnessed the man’s unsuccessful attempts at driving home.

Since California DUI law requires that a person actually drive a vehicle, the question becomes, “can a person be arrested for attempted DUI?” Does such an offense even exist?

States are divided as to the answer. However the issue in California was addressed by the California Appellate Court in the 1989 case of People v. Garcia, 262 Cal. Rptr. 915.

In People v. Garcia, the defendant was found in the driver’s seat of her vehicle. Her vehicle, at the time, was in the fast lane of the highway with the hazard lights on. Her vehicle began to roll backward and the defendant unsuccessfully attempted to start the car. She was, however, able to stop the vehicle from rolling backward by putting it in park. Unfortunately, for the defendant, officers were observing and arrested her.

The court held that the California Penal Code sections dealing with the crime of “attempt” are applicable to DUI cases.

California Penal Code section 21(a) states that an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Murder, for example, is a specific intent crime because it requires that the person have the specific intent to kill someone. If someone is killed unintentionally, say during a traffic collision, the crime becomes involuntary manslaughter which is a general intent crime.

In applying California’s attempt laws to DUI, the court in Garcia essentially made attempted DUI a specific intent crime. In doing so, the court created an interesting paradox.

If attempted DUI requires the specific intent to commit the crime of driving drunk, the mere fact that a defendant was drunk may serve to negate the possibility that they specifically intended to commit the crime of DUI.

Perhaps this paradox is exactly what the Garcia court was referring to when it said that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later case.”

Troublesome questions indeed…