California Criminal Lawyer Blog

How effective are these highly touted field sobriety tests? Consider the research funded by the National Highway Traffic Safety Administration (NHTSA), which resulted in the later adoption of the so-called "standardized" field sobriety tests. In a 1977 study, researchers determined that the three most effective field sobriety tests (FSTs) were walk-and-turn, one-leg stand, and horizontal gaze nystagmus. Yet, even using just these supposedly more accurate tests, the researchers found that 47 percent of the subjects who would have been arrested based upon test performance actually had blood-alcohol concentrations of less than the legal limit of. 10 percent. In other words, almost half of all persons 'failing" the tests were not legally under the influence of alcohol! Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA (1977).

In 1981, these same researchers conducted further tests in an attempt to improve the credibility of the proposed "standardized" battery of FSTs. The error rate improved somewhat: The false results dropped to 32 percent-i.e., "only" a third of all persons judged to be guilty by these tests were, in fact, innocent. Tharp, Burns, and Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA (1981). Critics of this second "study," however, point out that the "reliability coefficients" for this self-serving research were far below accepted levels in the scientific community. See Cole and Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, 79 Perceptual and Motor Skills 99 (1994), where the authors noted, among other problems:

The fact that these tests are largely unfamiliar to most people and not well practiced may make it more difficult for people to perform them. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of the unfamiliarity with the test.

And, in fact, it appears the NHTSA-funded researchers used methods that ensured improved reliability figures. Apparently, to reduce the number of borderline subjects (those with blood-alcohol levels of, say, .09 or .11 percent), most of the subjects received either excessive amounts of alcohol so that their BACs were elevated to .15 percent, or very small amounts so that they were below .05 percent.

In 1983, NHTSA conducted a study to determine the efficacy of the various field sobriety tests. Anderson et al., Field Evaluation of a Behavioral Test Battery for DWI (DOT HS-806-475, September 1983). The study found that "at present, the tests and procedures used vary between local agencies and officers" and that "for many of these tests, the relationship between performance and specific BAC levels has not been well documented." As a result of this and other studies, NHTSA now recommends only three field sobriety tests: walk-and-turn (walk-the-line), one-leg-stand, and nystagmus.

In 1986, another group of researchers tested the efficacy of the proposed standardized FSTs. The study, reported in Halperiri, Is the Driver Drunk? Oculomotor Sobriety Testing, 57 Journal of the American Optometer Association 654 (1986), involved testing the ability to determine whether a suspect's blood-alcohol level was above or below. 10 percent -- that is, whether he was "under the influence" in most states. The test, conducted under laboratory conditions, indicated that the walk-and-turn tests resulted in a correct assessment 75.1 percent of the time, the one-leg-stand 75.5 percent, and nystagmus 81.8 percent; when all three were given, a correct determination was arrived at in 83.4 percent of the cases. Put another way, these "improved" FSTs still identify roughly one-fourth of innocent DUI suspects as guilty -- and this presumes honest and accurate administration of the tests by an experienced officer under ideal laboratory conditions.

In 1987, many of the original researchers at the Southern California Research Institute who had been federally funded to come up with a standardized battery published findings of their research. The study concluded that FSTs do not accurately measure driving impairment. In an article entitled Sobriety Tests for the Presence of Drugs, 3(1) Alcohol, Drugs and Driving 25 (1987), researchers recognized that such tests are designed to determine balance, steadiness, and reaction time but concluded that a connection between these factors and driving ability "is not apparent since neither a steady stance nor simple movement time is essential to the safe operation of a motor vehicle." While conceding that field sobriety tests may indicate the presence of alcohol, the researchers found that they do not necessarily measure driving ability.

In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped 21 individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink to drive." Unknown to the officers, the blood-alcohol concentration of each of the 21 subjects was .00 percent. The results: 46 percent of the time the officers gave their opinion that the subject was too inebriated to drive. In other words, the FSTs were hardly more accurate at predicting intoxication than flipping a coin. Cole & Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, 79 Perceptual and Motor Skills 99 (1994).

Vehicle Code section 23612 sets forth the requirements of California's implied consent law, including the information which the officer is required to give a suspect who has been arrested for drunk driving. The language of the statute is mandatory, repeatedly stating that "the officer shall advise the person..."

Despite this, however, even a willful failure of the officer to properly advise a suspect of the implied consent provisions will not constitute grounds for suppression of the blood-alcohol test results: in short, Veh C § 23157 gives DUI arrestees "a right without a remedy." A defective advisement may, however, negate the usual sanctions for refusing to submit to chemical testing.

A commonly encountered situation occurs when the arresting officer fails to give an arrestee a choice of three tests, as required by Veh C § 23612. ("The person has the choice of whether the tests shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.") Many officers find it too time-consuming to arrange for a blood sample to be withdrawn. The breath instrument, however, is located in the police station, is clean and easy to administer, and gives an instant result to facilitate the arrest and booking decision. Rather than advise the individual that he or she has such a choice, therefore, the officer finds it much more convenient to simply tell the suspect that he or she must take a breath test, omitting any mention of alternatives.

Unfortunately, even this obvious denial of a right specifically granted by statute does not constitute grounds for suppression of the test results. [People v. Brannon, 32 Cal.App.3d 971, 108 Cal.Rptr. 620 (5th Dist.1973)]. However, on cross-examination at trial, defense attorneys should be permitted to bring out the officer's noncompliance with the implied consent statute. This can serve to cast doubt on whether the officer complied with such other regulations and procedures as demonstrating the field sobriety tests or properly administering the breath test.

A defendant charged in a criminal complaint with drunk driving will also, in most jurisdictions, be facing parallel administrative or civil proceedings. These proceedings, usually requested by the driver, are held for the purpose of deciding whether to uphold a suspension or revocation of his driver's license, either for (1) refusing to take a blood-alcohol test, or (2) for taking one that reflects a blood-alcohol concentration of at least .08 percent. That suspension is usually imposed -- and the license confiscated -- by the arresting officer.

In effect, these latest examples of the double standard prevalent in the DUI field constitute a presumption of guilt. But, as with sobriety checkpoints, they are being upheld by the state courts. Due process, apparently, is afforded by the fact that the individual is given a temporary license, usually good for 30 days, and a written notice that he has the right to an administrative hearing on the issue if he so demands within a given period of time.

These relatively new summary suspensions are authorized by so-called implied consent laws, which are the direct result of the federal government's successful "carrot-and-stick" attempt to get the states to adopt relatively uniform laws on drunk driving. Incorporated into the Alcohol-Impaired Driving Countermeasures Act of 1991, the summary license suspension proceedings reflect the "new philosophy" imposed upon the states of implied consent laws. The previous implied consent laws of the various states were aimed solely at the driver refusing to submit to blood-alcohol testing, and were theoretically designed to discourage such lack of cooperation. The new federal approach, however, abandons that view and emphasizes instead the immediate removal of the driver from the highways -- and a circumvention of the cumbersome criminal justice system. In effect, it creates a dual-track system of punishment (although the courts, to avoid nagging double jeopardy issues, like to refer to the suspensions as "administrative sanctions" rather than punishment). As of January 1999, first-offense administrative license suspensions ranged from as low as seven days (Virginia) to as high as one year (Georgia); ninety days appeared to be the most common period.

Although the original implied consent statutes passed decades ago were subject to procedural infirmities, today's statutes have largely survived broad constitutional attacks. Thus, for example, the admissibility of a refusal to submit to chemical testing has been held not a violation of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). The Sixth Amendment right to counsel has been held not to apply to proceedings where there is no risk of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 5. Ct. 2006, 32 L. Ed. 2d 520 (1972).

One recurrent problem with the new per se statutes stems from the common prosecutorial practice of charging a defendant with both the traditional and the per se offenses. (The phrase "per se" is also applied to the DMV's "administrative per se" (APS) driver's license suspension automatically imposed by the arresting officer where the driver has a .08% blood alcohol test result.) Although the defendant may not be punished for both offenses, many jurisdictions have permitted him to be convicted of both.

A California case, People v. Cosko, 152 Cal. App. 3d 54, 199 Cal. Rptr. 289 (1984), discusses the issue of whether the defendant could be convicted twice under separate subdivisions of the California Vehicle Code. The driver's argument was presented as follows:
Appellant contends that he was improperly convicted of two counts of driving under the influence, one for violating Vehicle Code section 23153, subdivision (a), and another for violating subdivision (b) of the same section based on one incident. We conclude that the Legislature added the 0.10 percent blood alcohol offense subdivision (subd. b) to facilitate proof of driving under the influence and that it did not intend a single driving under the influence incident to result in two driving under the influence convictions under Vehicle Code section 23153.

We are not concerned with the question of double charging, which is within the prosecutor's discretion, or with double punishment, which is clearly prohibited by Penal Code section 654. The question of double conviction, however, requires analysis of the legislative intent behind the addition of the 0.10 percent subdivision. [Id. at 290.]

The court concluded that the legislature did not intend that routine driving under the influence convictions would result in two convictions. The court based this opinion on an examination of the legislative history and the sentencing scheme of the statute. The court therefore held:
The general rule in the case of an improper combination of convictions is that the less serious offense is vacated while the more serious stands. (E.g., People v. Cole, supra, 31 Cal. 3d at p.582.) Since neither the under the influence offense nor the 0.10 percent offense is more serious than the other, the determination which conviction should stand is a discretionary matter. [Id. at 291-292.]

The Cosko decision was subsequently ordered by the California court not to be published. However, a later case was published. In People v. Duarte, 161 Cal. App. 3d 438 (1984), a California appellate court held that a defendant may be convicted under both statutes. However, he may only be punished for one; the judge must choose which one. Technically, punishment for the second conviction is temporarily stayed until after completion of sentence on the first -- at which time the stay is made permanent. Also, only one of the convictions may be used as a prior conviction for purposes of enhanced punishment on future DUI convictions.

A defendant's unusual driving is often the reason an officer pulls him or her over, hence this presumably unusual driving is often the first piece of evidence offered to the jury. On the off chance that the officer did not witness the defendant's driving, lay witnesses or circumstantial inference become part of the corpus delicti. This typically happens when there has been an accident and the officer arrives after the fact.

Most seasoned prosecutors would agree that the absolute most important evidence presented in a case is the testimony from the officer on the state of the defendant's driving. However, many defense lawyers hold the level of alcohol in the blood as the most vital piece of evidence, followed closely by the assessment of any field sobriety tests.

The types of evidence have been broken down into several groups in a manual developed by one of the most prominent prosecuting agencies in California. The categories in the order of importance are as follows: driving, appearance and demeanor, field sobriety tests (FSTs), and blood-alcohol test (or refusal). The manual dubs driving behavior as the most critical and states that FSTs, "which are not generally viewed by jurors as highly persuasive," are the least important.

Consider the following illustration of a particularly incriminating testimony by the officer to observe the defendant's driving. The officer first witnessed the defendant's car traveling at a very high speed. After the officer followed in pursuit, he/she observed the driver swerve across the lane lines 4 times. From there the officer could have witnessed the driver run through a stoplight, or disregard pedestrians attempting to cross at an intersection. When the officer turned on his flashing red lights, the defendant failed to pull over for nearly a quarter of a mile. When the defendant finally pulled to the side of the road, he/she parked the car at an irregular angle to the curb. The angle could possibly be a threat to traffic passing by.

With such condemnatory evidence to begin a case, how can the defense counsel respond? Naturally, each case is unique in itself. Accusing the officer of ulterior motives for condemning a defendant is not usually the best way to go about a defense. It is often most successful when the defense tackles each observation, one at a time, and produces a reasonable justification for the defendant's driving actions; the actions that caused the officer to misconstrue that the client was inebriated.

Speeding

Tackling first the issue of speeding, one method is to inquire how many speeding tickets the arresting officer has ever issued. How many of these tickets involved drunk driving? The answer to the latter question will most likely be "none". When an officer makes an arrest for driving while intoxicated, it is unusual that they also issue a speeding ticket. The series of questions brings up issues that will later evolve into an argument for the jury.

A. Why wasn't a speeding ticket issued if the defendant was actually speeding?
B. If speeding is a common trait among drunk drivers, why is it that the officer has never issued a ticket in any of his/her DUI arrests?
C. If speeding is not, in fact, a common trait among drunk drivers, why was the officer using it as evidence that the defendant was drunk in the first place?

For apparent reasons, California DUI lawyers should not provide the officer with a window of opportunity to further explain themselves during cross-examination. The topic should be discussed during argument if it has not been covered in redirect.

If the defendant did not have an accident, the issue of speeding could be used to his/her advantage, compelling the officer to acknowledge that driving above the normal speed limit requires better judgment. Speeding also requires faster coordination and better reflexes. With this in mind, speeding, itself, is evidence of sobriety. Therefore, rather than deny that the defendant was speeding, the fact that they were speeding at all can be used to their benefit. The attorney does not need to deny everything in this case. The defendant is not being charged for speeding, but for driving while intoxicated.

Blood samples obtained in drunk driving cases are generally -- but not always -- analyzed as whole blood (sometimes called "legal blood"). If the sample is withdrawn for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood"). Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum. A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called "supernatant," which is then analyzed.

Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood? In a study entitled Distribution of Ethanol: Plasma to Whole Blood Ratios, Hodgson and Shajani, 18 Forensic Science journal 73 (1985), scientists attempted to determine the answer to this very question. The conclusion: Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant samples were about 5 percent higher.

Thus, for example, evidence of a subject's blood-alcohol analysis indicating a .10 percent BAC may in fact reflect a true .09 percent if the plasma separation method of analysis was used. This has been confirmed in another study in which researchers concluded that a "person with an ethanol concentration of [.09 percent] in whole blood could have a reported concentration above [.10 percent] if either serum or plasma is analyzed." Winek & Carfagna, 11 Journal of Analytical Toxicology 267 (1987). Since many states permit the three types of "blood samples" to be used interchangeably in blood-alcohol analysis, counsel should certainly determine which type was actually used.

A simple technique for visually demonstrating the concept of testing blood that has aged and been subject to possible fermentation is to bring in a fresh vial of blood and compare it to the evidentiary sample withdrawn months earlier from the defendant. The fresh blood will be bright red, while the test sample will be nearly black.
For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, Blood Alcohol Testing in the Clinical Laboratories: Problems and Suggested Remedies, 39(3) Clinical Chemistry 377 (1993).
For legal case decisions, see Commonwealth v. Wanner, 605 A.2d 805 (Pa. Super. 1992), where the defendant appealed his DUI conviction on the grounds that the evidence of his blood-alcohol concentration was based on tests conducted on blood plasma rather than on whole blood, as required by statute. The appellate court agreed, citing the Bartolacci opinion; although that case addressed the use of blood serum rather than plasma, both involved tests on only portions of the blood. The court further found that tests on plasma resulted in BACs 15 to 20 percent higher than tests on whole blood.

As in any criminal prosecution, Probable Cause for DUI Arrest to stop the driver of a motor vehicle may be an issue in a drunk driving case. Lacking sufficient cause, any evidence obtained as a result of the stop - which should include all evidence except observations of driving, must be suppressed. Assuming the existence of grounds for the stop, the prosecution must then justify the investigatory detention. Again, if there are insufficient objective and articulable facts upon which to warrant detaining the driver beyond a temporary stop, then a motion to suppress all subsequently-obtained evidence should be made. If successful, this will suppress all evidence but observations and statements made during the brief stop. Finally, if there existed probable cause to detain the individual for a field investigation (field sobriety tests and brief questioning) there must still exist a considerably greater amount of evidence of intoxication to warrant an arrest. (There must also exist the authority to arrest, involving the question of whether the offense was committed in the officer's presence.) Without such cause, evidence obtained after the arrest, consisting in most cases primarily of the blood-alcohol test or refusal, is subject to suppression.

In essence, this usually means in a DUI case that the prosecution must establish a considerably escalating amount of evidence at each of the three stages-stop, detention, and arrest. Lacking the sufficient quantum of evidence at any stage results in suppression of all evidence obtained thereafter.

There are, of course, thousands of federal and California cases interpreting in general terms what constitutes sufficient probable cause to justify stopping, detaining, and arresting a citizen. Certainly such authority should be used in a DUT motion to suppress. It should be clearly understood by defense counsel, however, that a "double standard" appears to exist when it comes to drunk driving situations. Put another way, both the trial and appellate courts often prove more willing to find probable cause in DUI cases than in other types of offenses.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

When a California driver is arrested for driving under the influence of alcohol, his driver's license is immediately confiscated by the police and he is served with the DMV's "Notice of Suspension". This one-page document (fine print on both sides) serves to (1) formally suspend the license, (2) provide a temporary driving privilege for 30 days, and (3) explain some aspects of the applicable law. Buried in this fine print on the back side is the most important legal provision: there is a right to an administrative hearing to contest the suspension and force the DMV to return the license -- but only if the individual or his DWI attorney contacts the DMV's local Driver Safety Office (DSO) and formally demands a hearing WITHIN 10 CALENDAR DAYS of the arrest. If the call is not made, on the eleventh day the right to contest the suspension is lost and it will begin 30 days from the arrest regardless of any possible defenses.

This immediate suspension is for either (1) having .08% or higher blood-alcohol (.01% for drivers under 21); (2) providing a blood or urine sample when the officer believes the eventual analysis will be .08% or higher; or (3) refusing to take a chemical test. This is referred to as an administrative suspension (or sometimes "administrative per se" or "APS" suspension), and is to be distinguished form a license suspension or restriction which may (and probably will) later occur in the criminal courts -- in addition to the administrative suspension. Although this may seem to constitute "double jeopardy" or multiple punishment, the courts in their infinite wisdom have decided that the first suspension is only an "administrative sanction", as opposed to the second suspension in court which is a true "punishment".

If the driver is from another state, the officer has no right to seize the license, as that document is the property of another state. Similarly, California has no jurisdiction to suspend a driver's license issued by another state. The officer can and will, however, issue a "Notice of Suspension" identical to that given California license holders; this acts only as a suspension of the right to drive (after 30 days) within the State of California. If there is a conviction, California (as a member of the Interstate Driver's License Compact) will notify the home state of that fact; that state will then usually suspend the license in the same way as if the person had been convicted in the home state.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)

It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.

The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.

CA DUI Guide

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)

It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.

The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.

To find out more about your rights and how to protect them contact our office at (916) 447-7842.
CA DUI Guide

The Right to have an attorney at all stages of a criminal proceeding is regarded as a component of the general right to a fair trial, a fundamental right in the American justice system. This right exists whether the accused can or cannot afford a defense lawyer. In cases where a defendant is indigent, the court is required to appoint counsel free of charge to the defendant. This however was not always the case.

The right to counsel in trial in federal cases was indeed recognized early on the U.S. Bill of Rights, however the right was extended in cases before the state court much later. The US Supreme Court in another landmark 1963 decision of Gideon v. Wainwright, 372 U.S. 335, ruled that state court have to provide an attorney in all criminal cases where the defendant was unable to afford an attorney for their defense. This was a unanimous decision by the Court and it was based on the Sixth Amendment.

In 1966 along came the famous decision of Miranda v. Arizona, one of the most recognized Supreme Court decisions in the last century. The Court held that a person in police custody must be informed of the right to speak with an attorney and of the right against self-incrimination prior to being questioned by police. This important ruling has been interpreted in several subsequent Court decisions but still serves as a landmark case emphasizing the importance of the Sixth Amendment right to counsel.

More recently an important question was raised before appellate courts: Does the right to counsel extend to civil proceedings that can lead to loss of liberty? The question recognizes the fact that people can face fail time even without facing a criminal case. Certain administrative or civil proceedings can have the same results of jail time. Many states, including California, already provide attorneys for people in cases where jail time is a possibility. Such cases may include parole administrative hearings and civil contempt hearings. In 2006 the New Jersey Supreme Court held in Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127, that the right to have an attorney should extend regardless of the nature of the proceeding if the defendant faces a possible loss of liberty. The court ruled that indigent clients involved in such proceedings are entitled to counsel. Most recently the Supreme Court in Turner v. Rogers, Docket 10-10, took up the question of whether the South Carolina Supreme Court erred in holding that an indigent defendant has no constitutional right to appointed counsel at a civil contempt preceding that could result in his incarceration. The Supreme Court took up this case for decision because the South Carolina court decision was in conflict with over twenty federal courts of appeal and state court of last resort. The Court is scheduled to hear argument in the case on March 23, 2011.

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