Breath or Blood Test After a California DUI Stop?

Thursday, October 19th, 2017

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.

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DA Walks Away from what should have been a DUI Stop

Tuesday, July 5th, 2016

Police are supposed to be neutral and gather the evidence whether incriminating or exculpatory. They are not supposed to side with either the prosecution or the defense. This simply isn’t the case. More often than not, police try to find incriminating evidence, and only incriminating evidence, even when it might not exist…

…except when the suspect is a district attorney.

Earlier this month, a driver called 911 to report a suspected drunk driver in Silver City, New Mexico. Cell phone video confirmed the suspected drunk driver’s poor driving.

When Silver City police arrived, they noticed that the suspect was recently re-elected district attorney of Grant, Luna, and Hidalgo counties, Francesca Estevez.

An officer’s body camera captured the bizarre interaction between police and Estevez.  

"I have a flat! And I kept going over, and over!" Estevez said from inside the car. "I was coming in from Deming and the car kept swinging this way!"

Moments later, Estevez said that she was coming from Lordsburg.

In addition to the inconsistent statement, Estevez was slurring her speech, having trouble on her feet, fumbling with her phone, and went on a strange rant.

“We don’t want the U.S. Department of Justice to start looking down here,” she said. “It’s gotten to that point. Most of you are good.”

“What do you think?” asked Officer Leticia Lopez who was wearing the body camera. “She’s loaded, she almost fell down,” responded Officer Kyle Spurgeon.

New Mexico State Police were called in to assist with the stop. However, Officer Alyssa Carasco of the New Mexico State Police Department appeared to be disinterested in initiating a DUI investigation.

“If you have a problem with me not doing anything, then you can go ahead and do something. I’m not,” Carasco told Lopez.

Then the video appears to show Estevez appear to practice a heel-to-toe field sobriety test along a crack in the sidewalk.

What’s more, as Estevez was allowed to drive away, she ran into a curb right in front of the officers.

Had this been anyone else (well except maybe another officer), they would have been investigated and arrested on suspicion of DUI.

And so I ask: Who are the police working for?

New Mexico State Police has launched an internal investigation. It has yet to be determined whether Silver City Police will do the same.

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Can Body Cameras Assist in DUI Stops?

Monday, March 14th, 2016

It’s no big secret that many people have come to distrust law enforcement. The public distrust peaked in recent times after the highly publicized, and criticized, officer-involved shootings of Kelly Thomas, Eric Garner, Michael Brown, and Freddy Gray, to name a few.

In response, several law enforcement agencies began to issue body cameras to their officers with the hopes that incidences like these stop or, at a minimum, provide unbiased, objective information on what actually occurred.

In fact, even President Barack Obama urged law enforcement agencies throughout the country to issue body cameras to officers and offered $20 million in federal funds towards obtaining them.

As of April this year, Davis Police will be the latest law enforcement agency to be equipped with body cameras to record interactions with the public.

“It’s a great evidence-gathering tool for us,” said Lt. Tom Waltz. “It’s also another level of transparency. In situations where there’s a dispute about what occurred, we have a recording of it.

Davis officers will not be allowed to delete or modify footage obtained from the body cameras. They will however, be allowed to view the footage before giving a statement or preparing a police report. The footage will be uploaded to a server following an officer’s shift, or the footage can be uploaded immediately in cases where it is necessary to view the footage immediately.

With the use of body cameras increasing amongst law enforcement agencies here in California, the questions arises, “what effect will body cameras have on DUI stops?”

Many law enforcement agencies currently use what are commonly known as “dash cams;” cameras mounted to the dash of police squad cars. The cameras capture the DUI stop and provide information on whether the officer had the probable cause to make the traffic stop. The camera, however, is limited in that it cannot capture what the officer regularly uses as a justification to begin investigating and ultimately making an arrest for a DUI; the up-close interaction with the person whom they’ve pulled over.

What’s more, when officers have a person perform field sobriety tests, they often take them out of the view of the dash cam. The officers then prepare a police report which indicates that the person failed the field sobriety test, sometimes without even explaining how or why they came to the conclusion that the person failed.

The job of police is to obtain information and evidence objectively. Unfortunately, this is often not the case.  Officer testimony and police reports are regularly made for the purpose of securing a DUI conviction and, as such, are biased.

A body camera, however, would serve to provide first-hand evidence to support officer claims that a person was, in fact driving drunk. If an officer justifies a DUI arrest by claiming that an arrestee had slurred speech and bloodshot, watery eyes, the footage would verify the officer’s claims. If an officer determines that a person failed field sobriety tests, the footage from the body camera could support the officer’s interpretation of the person’s performance.

Lt. Waltz of the Davis Police Department used a word that I think captures what will hopefully become effect of using body cameras for law enforcement; transparency. The purpose of the body camera is not necessarily to find incriminating evidence, exculpatory evidence, or even evidence of police misconduct. The purpose of the body camera is to find the truth and if that’s what it provides, I’m on board.

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What is the Difference between a PAS Test and a Chemical Test?

Monday, January 25th, 2016

Most people are unaware that many California DUI stops include two separate and distinct breath tests. And people are often confused about whether they must provide a breath sample to both or either test. It is admittedly confusing, and most people are surprised when I tell them that one of the breath tests is required and the other is not.

The two tests I am referring to are 1.) the preliminary alcohol screening test (PAS test), and 2.) the chemical breath test. While they are both “breathalyzer” tests, their distinction lies in when the DUI arrest is made.

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.”

Following a California DUI stop, but before a DUI arrest, an officer may request that the suspected drunk driver perform field sobriety tests which, most people know, includes the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. What most people don’t know, however, is that the breathalyzer test requested by officers before an arrest is also a field sobriety test. This is the PAS test. And like the other field sobriety tests, the PAS test is optional.

The investigating officer must advise the DUI suspect 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.”

Field sobriety tests, including the PAS test, are a means to determine if the officer has the required probable cause to arrest the DUI suspect for a California DUI.

If the officer has the requisite probable cause to make an arrest, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a PAS test and a chemical 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].”

In other words, licensed California drivers have impliedly consented to provide a chemical test following a lawful DUI arrest.

The post-arrest chemical test can be either a breath test or a blood test. If a person opts against providing blood, they must provide a breath sample. And for this breath test, they will be taking a breathalyzer very much like the PAS test.

The short version of this article is this: A 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 and provided that the arrest was lawful.

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Body Cameras for Law Enforcement Could Assist in DUI Cases

Monday, January 12th, 2015

In the wake of the recent events surrounding Michael Brown’s death, Eric Garner’s death, and other similar incidences raising concerns of excessive force by law enforcement, many police agencies are considering and some actually using body mounted cameras.

In August, The Wall Street Journal reported that, following the use of body-mounted cameras on police in Rialto, California, use of force by police declined by 60 percent and citizen complaints about the police fell 88 percent.

In addition to reducing instances of excessive force by police, how else might body cameras affect criminal investigations? More specifically, how might they affect DUI investigations?

Well, let me ask you this: How valuable might it be to a DUI investigation to see exactly what the officer saw when they arrested a DUI suspect rather than merely relying on a police report?

Unfortunately, officers write their police reports hours after the arrest took place. By the time the officer actually sits down to write their report, memory fades, opinions replace fact, and the decision fabricate in order to justify an arrest is sometimes made.

In my practice as a DUI defense attorney, I cannot remember a DUI police report that didn’t allege that the suspect “had bloodshot watery eyes, slurred speech, and emitted the distinct odor of alcohol.” This was true even in cases when it was later determined that my client was, in fact, not under the influence. While these clients were eventually cleared of driving drunk, the unverified police report led to DUI charges.

Currently, many law enforcement agencies use dashboard mounted camera videos which can capture the DUI stop. They cannot, however, capture whether the officer actually observed bloodshot watery eyes or slurred speech. A body camera would serve to provide the first-hand evidence to justify the allegations made in a police report written hours after the incident occurred. If the officer alleges that a suspect’s eyes are bloodshot or that they have slurred speech in a police report, the footage from a body camera can ensure that those allegations are, in fact, true.

You may remember my previous complaints 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.” As was the case with the supposed bloodshot watery eyes and slurred speech, people are often cleared of DUI charges notwithstanding a police report alleging that they “failed” field sobriety tests. Footage from body cameras can confirm whether the suspect actually “failed” the field sobriety test, thus confirming credibility of the police report or exposing its flaws.

Opponents of body cameras argue that, in addition to being an “encumbrance,” the cost of equipping every officer with a body camera and the cost of storing and managing such a voluminous amount of data outweighs any benefit the footage might provide.

Fortunately, the argument that body cameras are too costly is losing merit with price of technology and cloud-based storage systems dropping precipitously. Ultimately, when a criminal conviction (…and the punishment associated with such a conviction) is on the line, there should not be a price too large to ensure the accuracy and integrity of a criminal investigation.

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