Should You Take a Breath or a Blood Test?

Monday, November 16th, 2015

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:

https://www.duiblog.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.

 

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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.  

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Lawmakers Seek to Close “Loophole” in SC DUI Law

Monday, March 2nd, 2015

In 2009, an amendment to South Carolina’s DUI laws required arresting agencies to video record any field sobriety testing during a DUI arrest. Prosecutors and law enforcement are now complaining that it is nearly impossible to convict a person of a DUI because the word “any” is being used as a loophole to get DUI cases thrown out.

 Earlier this month, in a room at the South Carolina capitol, 16th Circuit Solicitor Kevin Brackett presented examples of such cases to a crowd of over 100 people including lawmakers, advocates and law enforcement officials. The cases he presented never made it to a jury trial because of video  “problems” such as the suspects’ feet being briefly obscured by the police cruisers’ hoods, shadows partially obscuring a person’s head, and a person’s back foot obscuring the view of their front foot as they perform field sobriety tests.

"A person could wreck into another vehicle, blow a .25 (BAC), have thrown up all over themselves and admit to drinking 20 beers over the course of the day," Assistant Solicitor Matthew Shelton explained to NBC Charlotte, "but if your feet are blocked by the officers patrol car hood during the field sobriety test, the case is being thrown out before it even goes to a jury. We’re not talking about just the video being tossed out as evidence. The whole case. A jury never gets to see the case."

I’ve written in the past on the need for transparency in DUI investigation and I am fully in favor of requiring law enforcement agencies to be equipped with dashboard cameras. You may remember my previous complaints, however, about law enforcement taking DUI suspects out of the view of the dash-cam to conduct field sobriety tests. In their police report, officers claim that suspects fail the field sobriety tests without an explanation as to how the suspect failed. Then, notwithstanding the officer’s report indicating that they failed, it is later determined that these DUI suspects were not actually driving under the influence.

The 2009 amendment was intended to prevent such devious methods of circumventing the transparency provided by a dash-cam.

This notion is lost on lawmakers as they have since introduced bill H.3441 into the South Carolina House. The proposed law changes the wording of the 2009 amendment to no longer require that any field sobriety test given be recorded. Additionally, the law would prevent a case from being totally dismissed due to a technicality in the video.

The wording of the proposed law reads in part:

“When a law enforcement officer is investigating a person suspected of [driving under the influence] that officer or another officer participating in the investigation or arrest should make a reasonable attempt to video record the person’s conduct at the incident site and the breath test site.”

Furthermore, under the H.3441, the original words of the 2009 amendment “The video recording at the incident site must include any field sobriety test administered” are completely stricken.

If the investigating officer is unable to record the incident, they “shall submit a sworn affidavit” stating one or several enumerated justifications for not being able to do so.

Unfortunately, this proposed change once again opens the door to potential dishonesty by law enforcement in investigating DUIs. In my experience, officers are often dishonest in writing their police reports which, by law, must be truthful. If such is the case, what good is requiring them to submit an affidavit that the video was unavailable under the proposed law? Dishonesty is dishonest regardless of the title of the document.

There is nothing wrong with the 2009 amendment and if law enforcement and prosecutors want to convict people of driving under the influence, they need to do a better job adhering to the law.

The only thing to ensure accuracy and truthfulness in DUI investigations is actual transparency, not the promise of accuracy and truthfulness.

 

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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.

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Law Enforcement and the Confirmation Bias

Monday, August 4th, 2014

While I have a bachelor’s degree in psychology, I’m by no means a psychologist. Nor can I say that there’s much that I remember from my college studies except those things that are proving to be particularly relevant in my law career. One of those things is the “confirmation bias.”

The confirmation bias occurs when a person has beliefs or expectations and unconsciously seeks out and interprets information to confirm those beliefs and expectation while ignoring contradictory information. Put in simple terms, people see what they want to see.  

The confirmation bias is proving to be particularly relevant in criminal law because unfortunately, it affects law enforcement decisions, particularly in DUI cases, more often than I’d like to admit.

Although proven to be unreliable, the purpose of field sobriety tests are to allow officers to obtain information sufficient to establish probable cause that a person has been driving drunk. However, often is the case that the officers have already decided that a person is guilty of drunk driving even before the field sobriety tests are conducted.

Regardless of how the DUI suspect performs on the field sobriety tests, the officers will interpret the performance to justify their own expectations about the DUI suspect. This is exactly why I always advise my clients and anyone else who may happen to find themselves in the unfortunate predicament of being stopped on suspicion of DUI: never agree to perform field sobriety tests.

While I’ve seen this psychological phenomenon play out in more than a number of California DUI cases that I’ve handled, until recently I was unaware that the confirmation bias effect on law enforcement in DUI cases has actually been empirically tested.

In 1977, the National Highway Transportation Safety Administration (NHTSA) commissioned a study by the Southern California Research institution to test the best field sobriety tests. Ten police officers observed several hundred subjects who were given varying amounts of alcohol. Neither the officers nor the participants knew how much alcohol was ingested by each participant. Based on the subject’s performance on the field sobriety test, the officers incorrectly identified subjects as having a blood alcohol content above 0.10 percent a whopping 47 percent of the time.

In 1994, Dr. Spurgeon Cole, a researcher at Clemson University, conducted a study which tends to confirm the 1977 study. Dr. Cole videotaped 21 sober individuals performing six field sobriety tests. Fourteen police officers, with a median experience level of 11.7 years, viewed the videotapes. I would be remiss not to mention that all of the officers had completed state-mandated DUI detection training courses. Even though the subjects were completely sober, the officers determined that the subjects were too drunk to drive an astonishing 46 percent of the time.

Leo Tolstoy once said, “The most difficult subjects can be explained to the most slow-witted man if he has not formed any ideas of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of a doubt, what is laid before him.”

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