Tag Archives: Field Sobriety Tests
A 10-year-old girl is being hailed as a hero by both law enforcement and her mother for recording and calling 911 on, get this, her mother who was driving drunk.
Stephanie Davis, 31, was stopped shortly after 4pm on Saturday in Glendale, Arizona after police received a 911 call from Davis’s daughter that Davis was driving drunk. According to Maricopa County court records, when police arrived, Davis was found stumbling around outside her car, exhibiting slurred speech and bloodshot eyes.
“When she walked, she had to be supported by officers, and when she tried to exit the patrol vehicle, she fell down and had to be caught by officers,” according to court documents.
Police also found Davis’s three children in the car, one of which had recorded Davis’s drunk driving and had called 911. The 10-year-old provided police with the video of the incident and, according to court records, the children could be heard in the background yelling at Davis to pull over so that she wouldn’t crash the vehicle.
Davis later confessed to drinking wine while watching the Lion King with her daughter and 4-year-old nieces. She also later failed field sobriety test and was served a warrant for a blood test.
“This is the most embarrassing thing to happen in my life…the most failed moment of being a mother,” Davis told KTVK of Phoenix.
As Davis prepares to go to court on September 23rd, she has praised her “heroic” daughter for “absolutely [doing] the right thing.”
As a first-time DUI offender in Arizona, Davis faces a minimum of 24 hours in jail (the law provides for 10 days minimum with nine days suspended) up to six months, up to $2,500 in fines and fees, a license suspension between 90 and 360 days, installation of an ignition interlock device, possible probation for three years, possible community service, and possible alcohol assessment coupled with an alcohol education class.
While not exactly the same had Davis’s DUI been in California, she’d be facing similar consequences. In California, Davis would have faced three years of informal probation, up to six months in jail, between $390 and $1,000 in fines (not including “penalties and assessments” which increase the fine by about three to four times), a minimum three-month DUI course, possible jail, possible community service and/or labor, possible installation of an ignition interlock device, possible MADD Victim Impact Panel, possible Hospital and Morgue Program, and a license suspension.
California also treats DUI with children in the car very seriously. Not only would Davis be looking at the punishment under California’s DUI law above, she would also be looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.
Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.
The prosecutor need only prove that you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.
Davis’s words of advice to parents: “Save the wine for at home.”
Anyone who has known someone that has been convicted of a DUI, or who has themselves had the unfortunate experience of suffering the consequences of a DUI, might know that there is the possibility of a obtaining a restricted license during the period of time where driving privileges are suspended. While driving privileges might be restricted during this time, a driver can still drive to and from work with a restricted license.
If a law enforcement officer happens to get caught for a DUI, wouldn’t we expect to hold the officer to the same standard as the rest of us drivers, possibly even a higher standard?
I bring this up because a police officer from Melbourne, Florida is now back behind the wheel of her police cruiser after having been charged with DUI while off duty back in September.
Audrey Poole of the Melbourne Police Department was pulled over for driving 20mph above the speed limit in Palm Bay. Her arrest affidavit as well as a statement from the arresting officer indicates that her eyes were bloodshot, and she smelled of alcohol even before she attempted field sobriety tests. She allegedly failed multiple field sobriety tests and refused to submit to a breathalyzer test, which led to her arrest. The interaction was even caught on dashboard camera footage.
Poole had been working in dispatch since 2012 and was hired as an officer in March 2018. After the arrest, she was suspended for a week without pay, then was placed on administrative leave with pay until Nov. 12th and was assigned desk duty. Under Florida law, she automatically lost her license for one year for refusing a chemical test. A month after the arrest, the state attorney’s office dismissed the DUI charge. According to Assistant State Attorney Leo Domenick, “Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant’s performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial.” After two months, Poole was reinstated and allowed to drive a Melbourne police cruiser under a “business purpose only” license which allows her to drive during her on duty hours.
Following the dismissal of charges, she was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law, and unlawful consumption of alcohol. In addition, she was also required to complete an alcohol education course and had her probationary status as a new officer extended.
According to some local DUI lawyers, a complete dismissal is unusual for Poole’s case. “It’s pretty rare that you see cases completely dropped, but every case is different. They might get knocked down to a reckless driving or a careless driving sometimes, but with more refusals they won’t negotiate… a dismissal,” says Melbourne-based DUI lawyer Mark Germain.
However, despite earlier reports that Poole failed multiple field sobriety tests, State Attorney spokesperson Todd Brown explained that the lack of a breath test and Poole’s actual performance on the field sobriety tests were sufficient enough to make the burden of proof for trial difficult to meet. Since prosecutors also have an obligation to drop charges that do not meet the burden of proof, it was decided that they would drop the charges. He believes that a member of the public charged in the same circumstances would have resulted in the same conclusion.
Let’s put aside the question that we have regarding the dropped charges for a moment. As an officer of the law, who is supposed to be enforcing the very laws that she disregarded, she was allowed to apply for and was approved for a “business only” license during her license suspension period.
There are multiple factors that can be considered to reach the conclusion that was reached. Poole was off duty, so the charge should have no bearing towards the responsibility she holds during her on duty hours. No chemical test seemed to have taken place, even after her arrest, so there is no factual evidence that she was over the legal limit. Because the charges were dropped, there is no conviction on her record. These are all arguments to allow her to continue to drive for work purposes. Would the same treatment have been given to a non-police officer?
When it comes to the actual charges, at least here in California, Poole would have been charged with a DUI. Prosecutors here in California have actually said that they would rather go to trial and lose a DUI case for lack of evidence than to dismiss it for lack of evidence. As the local DUI attorneys have pointed out, it’s extremely rare for a prosecutor to dismiss a DUI case give the facts of Poole’s case. In fact, drivers have been charged with a DUI with much less evidence than in Poole’s case.
Again, questions remain: Had Poole been anyone other than an officer, would she have been treated differently? Probably. Would she have been approved for the “business only” driving license? Probably not. Are police held to a different standard when it comes to DUI prosecutions than the rest of us? Although I’d like to answer in the negative, Poole’s case has me thinking otherwise.
We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.
In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).
A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.
I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.
Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.
After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.
If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).
The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.
Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.
If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.
If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).
I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.
Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.
South Carolina, a state that carries the unfortunate honor of having one of the highest rates of DUI-related deaths in the country, also has one of the most unique DUI laws in the country. But it’s not a law that you would have expected, such as a lower BAC limit or unusually high punishment for a DUI. Rather, the law requires that law enforcement video record all DUI stops.
The law and the repercussions for not following the law has led to law enforcement, prosecutors and even the media to call the law a “camera loophole” that allows drunk drivers “off the hook.”
This week, WBTW News13 reported on this so-called “loophole.”
News13 investigates: ‘Camera loophole’ still letting drunk drivers off the hook
May 9, 2019 – WBTW News13 – South Carolina’s per-mile rate of DUI fatalities is among the highest in the nation every year.
A report released last year ranks the Palmetto State second in the U.S. for drunk driving deaths.
Police and prosecutors say current state law is putting you and your family in danger, because drunk drivers that should be getting convictions are walking away scot-free.
They say one contributing factor is a loophole in the state’s DUI law. It’s called the “camera loophole.”
News13 investigated the camera loophole in 2016. Since then, there has been little effort to fix the law.
The South Carolina chapter of Mothers Against Drunk Driving released a three-year report last year. It found that DUI cases that were resolved in less than a year resulted in a 52 percent conviction rate compared to 33 percent in cases that dragged on for more than a year.
South Carolina law requires police to videotape DUI traffic stops. Any small misstep could jeopardize a case — if the driver stumbles out of frame, the driver’s feet can’t be seen, or the shot is too dark.
One video shows a Horry County officer giving a field sobriety test to a man who ran off the side of the road. He can’t walk in a straight line, and the officer said he also failed an eye test.
But because you can’t clearly see his face, Horry County Solicitor Jimmy Richardson said this situation probably wouldn’t hold up in court.
“You’re not all the way on. Or, if your feet as you get closer to the car cut off for a second then that throws the case out,” Richardson said.
You read that correctly: a blip, static, or stumble doesn’t just get the video dismissed, it can get the whole case dropped.
PFC Shon McCluskey with the Myrtle Beach Police Department said a lot of effort goes into setting up the perfect shot.
“It is a process. We’ve actually joked around at times saying sometimes you feel like you have to have an entire live PD scene with you to get every aspect of the case to make sure that everything is perfect.”
McCluskey said he takes extra precaution to make sure his dash cam video frame is wide enough and that there is nothing blocking the shot. But some things are out of his control.
“We’re not working in perfect environments out here every day. It’s not always sunny, it’s not always calm. Sometimes it can be a little windy, it can be rainy.”
Efforts at the legislative level in recent years to change the video requirements have failed. Bills introduced in the House and Senate in 2015 adding more wiggle room to the video requirements never moved out of committees.
None have been introduced in the current session.
News13 asked Jimmy Richardson why little progress has been made.
“Some of my best friends are in the legislature,” Richardson replied, “So present company excluded, about 40 percent of our legislature are attorneys. Only two or three of them are former prosecutors, the other 39.9 percent are defense attorneys. And this is where defense attorneys make their money. So, I would suggest that’s probably why the law is so complicated.”
Attorney and South Carolina Senator Stephen Goldfinch said it’s so complicated, because lawmakers are trying to balance the constitutional rights of everyone.
“Even if they are the lowest of the low, the murderers, the DUI drivers that kill people, the people that none of us want to protect, we have a legal duty, a constitutional duty to protect,” Goldfinch said.
Goldfinch said video evidence isn’t being tossed out of cases as often as law enforcement and advocates claim, but he admitted there are problems with the law.
“There are cases out there that show us that there have been problems in past history in regards to the loophole that you’re talking about,” Goldfinch said. “And I think there are some cases where we could probably close that loophole on. But we’ve got to be careful not to interject ourselves into the middle of the court system and the judicial system and the province of the judge.
Richardson also said that closing any DUI loopholes may need to come from the judges instead of the lawmakers.
“Case law will probably be the way to change that, saying that it doesn’t have to be 100 percent, it’s what is reasonable under the circumstances,” Richardson said. “And just with those four or five words you fix the entire system.”
But is it really fair to call the South Carolina law a loophole?
The purpose of the law is transparency, plain and simple, and for good reason. At a time when the public trust in law enforcement is waning, due in large part to police getting caught engaging in less-than-honest interactions with people, transparency with law enforcement is absolutely essential.
I can tell you firsthand that there is a problem with law enforcement fabricating information in DUI police reports. I have personally handled a case where the police deliberately took a DUI suspect out of dashboard camera range to perform the field sobriety tests, stated in the police report that the suspect failed the tests, and then the person’s blood alcohol content later turned out to be only 0.02 percent, well below the legal limit and an extremely strong indication that the suspect was sober. When handling the case, the prosecutor, who I personally knew, admitted that this was a problem she had seen with several DUI cases.
Let me simplify what I’ve just said. The police deliberately tried concealing their own lie just to put someone in jail for a DUI when that person wasn’t even drunk!
This South Carolina law is not “loophole.” It is ensuring transparency to protect the rights of the public. And if people who are actually driving drunk are “let off the hook,” it’s not because there’s a problem with the law. Rather, it’s because there’s a problem with law enforcement’s ability to abide by the law.
Here are some suggestions: Give better training to your officers, invest in some better dash cam equipment, or better yet, get some body cameras.
Personally, and I hope you would agree, I would rather see law enforcement take a few extra steps towards ensuring transparency than see wrongful DUI arrests by police who just want to add a notch on their belt.
The law surrounding California DUI’s is so expansive and complicated that sometimes it’s worth wild to take a step back and just talk about the basics of a California DUI.
In California, it is illegal to drive with a blood alcohol content of 0.08 percent or higher. It is also illegal to drive while under the influence. While every person is different, with a different metabolism and different tolerances, a mere two drinks in an hour can certainly get a driver to a 0.08 percent. Additionally, person is “under the influence” if they cannot operate a vehicle as a reasonable and sober person would have under similar circumstances.
Now, let’s be very clear. A person does not have to be above a blood alcohol content of 0.08 percent or more to be charged with a California DUI if they were under the influence. Similarly, a person does not have to be under the influence to be charged with a California DUI if they have a blood alcohol content of 0.08 percent or more. Having said that, most people who are caught driving with a blood alcohol content of 0.08 percent or higher will be charged with both under California Vehicle Code section 23152(a) and section 23152(b) respectively. Yes, you read that correct. Most people who get a DUI are actually looking at two separate charges.
For example, John is heavy in weight and is an alcoholic. If John drinks four beers in an hour, he may likely have a blood alcohol content of above a 0.08 percent, but he’ll probably not be “under the influence” because he can function as though he were sober. He will still be arrested, charged, and may be convicted of driving with a blood alcohol content of 0.08 percent or more under Vehicle Code section 23152(b).
On the other hand, for example, Jane is underweight and very rarely drinks. If she were to have one glass of wine, she may not be above a blood alcohol content of 0.08 percent or more, but she may certainly not be able to function as a sober person would. As such, while she cannot be charged with having a blood alcohol content of 0.08 percent or higher, she may very well be arrested and charged with driving under the influence under Vehicle Code section 23152(a).
Whether a person is a 0.08 percent or higher, or if they are under the influence, officers have no knowledge of either when they decide to pull someone over. They might suspect that a person is under the influence based on observed driving patterns, but that alone is not enough to arrest a person. An officer must have probable cause to arrest a driver for a DUI. An officer has probable cause when they have trustworthy facts that would lead a reasonable person to believe that the driver was either a 0.08 percent or higher, or that they were driving under the influence.
The key is that the officer must have facts that the driver is DUI before they can make the arrest. The officer can obtain the facts to meet the probable cause standard through observation of driving patterns, statements made by the drive (ex. “I had a few beers with dinner”), smell of alcohol on the driver’s breath, bloodshot and watery eyes, slurred speech, poor performance on field sobriety tests, and failure of a roadside breathalyzer.
Just because these may be what an officer uses to justify a DUI arrest, there are things that drivers can do to limit the amount of “facts” that they give the officer.
Drivers do not need to talk to the officers, nor should they. The 5th Amendment exists for a reason. Use it. Rather than potentially providing incriminating statements and allowing the officer to smell the driver’s breath, the driver should simply invoke his or her 5th Amendment right to remain silent, request their attorney, and then keep their mouth shut.
Drivers do not need to perform the field sobriety tests, nor should they. The officer might threaten arrest if the driver does not perform them, but the driver has that right. Chances are that the officer has already made up his or her mind to arrest the driver. However, by not performing the field sobriety tests, the driver has prevented the officer from obtaining any facts that the driver is impaired.
Lastly, drivers do not need to perform the roadside breathalyzer, nor should they. This test, referred to as a preliminary alcohol screening test or “PAS” test, is optional. That is not to say that a driver will not have to perform any test.
Once a person has been lawfully arrested for a DUI, meaning the officer does have the requisite probable cause to make the arrest, the driver must submit to either a breath test or a blood test under California law. Not doing so can lead to increased penalties with both the court as well as the California DMV.
Speaking of the California DMV, when a person is caught driving with a blood alcohol content of 0.08 percent or more, it triggers an action by the DMV to determine whether the driver’s license should be suspended. The driver or their attorney must contact the DMV within 10 days to request a hearing and stop the automatic suspension of the driver’s license. If the hearing is lost, then the person’s license will be suspended, the time of which will be dependent upon prior DUI’s and whether the driver refused the required breath or blood test. If the hearing is won, albeit unlikely, the driver’s driving privileges are saved…for now.
After the arrest, the driver must challenge the DUI in court. If convicted, the driver faces some serious consequences. For a first time DUI, the driver is facing a minimum of $390 in fines, which will increase to about $2,000 after court fees are included, three years of informal probation, a three-month DUI course, additional license suspension time, and a DUI on their criminal record. Now, these are minimums. A driver could face a whole host of other penalties including jail of up to six months.
Since this post is about the basics, I won’t get into the penalties for a second or more DUI, or other penalties for various DUI scenarios.
Needless to say, even the basics are extremely complicated. A driver absolutely should not try to tackle a DUI case on their own. They should hire an experienced California DUI attorney who has studied California DUI law and who practices it day in and day out. Simply put, having a California DUI attorney can be the difference between going to jail and not.