Should You Take a Breathalyzer During a California DUI Stop?

Thursday, October 4th, 2018

There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”

There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

Under 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.”

Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.

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.”

Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.

If the officer has the required probable cause to make an arrest for a DUI, 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 roadside breath test and a chemical test.

Under California’s Implied Consent law, which is 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 is like me and hates giving 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, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.

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How Do Police Spot Drunk Drivers?

Monday, October 24th, 2016

Most of the time, officers don’t know that a person is actually drunk when they pull that person over. You can bet, however, that they’re suspicious. It’s not just the commission of a traffic violation itself that gives them suspicion. It could very well be a number of things.

So what do officers look for when spotting a suspected drunk driver?

Because people who are under the influence have trouble with vision and balance, they often have trouble driving in a straight line. This means that they may weave through traffic, cannot stay in their own lane, drift, straddle one side of a lane, swerve, and/or make wide turns. The California Court of Appeals has held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.”

Drivers who are under the influence also often have trouble gauging speed and distances. As a result, many drunk drivers have trouble stopping their vehicles as a sober person would. This includes stopping their vehicle too far from a curb or a stop sign as well as stopping their vehicle too suddenly.

Similarly, drunk drivers may also have trouble accelerating and often accelerate abruptly rather than gradually. They might also have trouble maintaining a consistent speed. Now it would be unreasonable to expect a person to maintain the speed perfectly, however the speed of drunk drivers often fluctuates more drastically than one might reasonably expect of a sober driver.

What I’ve mentioned are what officers look for, but what about what they listen for? I’m not talking about the sound of drunk drivers. I’m talking about anonymous tips from callers who may suspect that a person is driving under the influence. Can an officer use an anonymous tip to help him or her “spot” a drunk driver?

In the recent case of Navarette v. California, the United States Supreme Court held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence. This is true even though it is impossible to verify the reliability of the tip and the officer has not witnessed any driving that would indicate intoxication.

Like I said at the beginning of this post, these are the things that give officers the authority to pull someone over with only the suspicion that they may be driving under the influence. These things alone, however, are not enough to give the office the probable cause to arrest the person on suspicion of driving under the influence.

Once pulled over for the reasons mentioned above, the officer can substantiate their suspicion that the driver is under the influence with their own observations in making the stop. These are the pieces of information that have become as common in DUI police reports as the officer’s name, namely the smell of alcohol, the slurring of words, and the bloodshot and watery eyes of the driver. The officer can then further substantiate their suspicion and produce the probable cause needed to make the DUI arrest if the driver agrees to and fails field sobriety tests and/or produces a pre-arrest breathalyzer result above a 0.08 blood alcohol content.

Whether you’ve had a drink or not, be mindful of what the prying eyes of law enforcement officers are looking for in spotting drunk drivers.

 

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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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Legal Defenses to a California DUI of Marijuana

Tuesday, April 19th, 2016

While we’ve been on the topic of DUI of marijuana, it only seemed appropriate to talk about some of the legal defenses that may be raised with this charge.

Just like with a DUI of alcohol, the officer must have probable cause to believe that you are driving while under the influence before he or she can arrest you. The officer has probable cause when they have apparent and trustworthy facts that would lead a reasonably intelligent and prudent person to believe that the driver is driving under the influence. The information that officers use to “find” probable cause is poor driving, the smell of marijuana, blood shot watery eyes, slowed speech, poor performance on field sobriety tests, and admissions by drivers that they have ingested marijuana. Only after a lawful arrest must a driver submit to a chemical test. If an officer makes an unlawful arrest because they didn’t have probable cause, the results of a chemical test showing the presence of marijuana should be inadmissible.

This is precisely why I always advise my clients to not say anything to law enforcement and decline field sobriety tests. Not only is it your right to do so, it preserves the argument that the arrest was unlawful and therefore evidence of marijuana use from a chemical test is inadmissible.

While the defense of an unlawful arrest applies to both DUI of alcohol and DUI of marijuana, there are a few defenses that are unique to a DUI of marijuana.

Unlike alcohol, Delta-9-tetrahydrocannabinol (THC), the psychoactive component of marijuana stays is a user’s system long after ingestion. Therefore, a person can test positive for THC well after the person smoked marijuana and well after the person was intoxicated, sometimes as much as weeks afterwards.

There is a strong correlation between blood alcohol content and intoxication. In other words, law enforcement knows that if a person has, for example, a blood alcohol content of 0.12 percent, it is highly likely that the person is intoxicated and unfit to drive a vehicle. The correlation between THC and intoxication, on the other hand, is not as clear. THC is measured in nanograms per milliliter of blood. For example, Colorado, which have legalized recreational marijuana, has made it illegal to drive with 5 nanograms of THC per milliliter of blood. A person, however, can have 5 nanograms of THC per milliliter of blood in their system weeks after smoking marijuana and certainly well after the person is unfit to drive. Therefore, there is the defense that you are not driving under the influence of marijuana even though you may have THC in your system.

Should California approve the roadside test to determine whether a person has ingested marijuana “recently,” prosecutors still need to prove that the use of marijuana actually impaired a person’s ability to drive to secure a DUI of marijuana conviction. If the driver refuses field sobriety tests, there’s not much evidence, other than the driving pattern, that a person’s ability to drive was impaired. Therefore, another realistic defense is that the person’s driving was not impaired even though they had recently smoked marijuana.

In any event, hiring a qualified California DUI attorney is essential to be able to successfully assert any of the aforementioned legal defenses to a California DUI of marijuana charge. As you can see, they are quite complex and I’ve only scratched the surface.

 

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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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