Monday, August 31, 2009

Avoid a DUI when cop mistakenly thinks of location of registration decal in place believed by cop it should be (but not legally required)

A case that helps California DUI criminal defense attorneys out of the 9th Circuit Court of Appeals is USA v LOPEZ SOTO.

UNITED STATES OF AMERICA,No. 99-50201Plaintiff-Appellee,D.C. No.v.CR-98-02396-BTM ARMANDO LOPEZ-SOTO,OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding Argued and Submitted January 5, 2000--Pasadena, California Filed March 8, 2000Before: Stephen S. Trott and William A. Fletcher,Circuit Judges, and Donald W. Molloy,1 District Judge.

Opinion by Judge William A. Fletchering that indicates erroneously that the vehicle is not displaying a current registration decal in the correct manner. San Diego Police Officer Randall Hill noticed that the car driven by appellant Armando Lopez-Soto had Baja California license plates. Hill had been instructed at the police academy that Baja California requires that registration decals be affixedto a vehicle so that they are visible from the rear. In fact, the relevant Baja California code section provides that the sticker must be placed on the upper right-hand corner of the windshield. Hill did not check the windshield. Had he done so, he would have seen that there was no registration decal on it.Hill pulled the car over and asked Lopez-Soto for proof of registration. Lopez-Soto motioned to a piece of paper stuck to the rear window. Because the writing on the paper was light, Hill could not read it from outside the vehicle. When he opened the rear door for a closer look, he smelled a strong odor that he recognized as marijuana, and saw foil-wrapped bricks protruding from beneath the rear floor mats. Hill's search of the car revealed 400 kilos of marijuana. Lopez-Soto was charged with possession of marijuana with intent to distribute. He moved to suppress the evidence on the ground that Hill had no legal basis for stopping the car.The district court denied the motion, ruling that the stopwas valid. Alternatively, the court concluded that the evidencewas admissible under the "inevitable discovery " exception tothe exclusionary rule because Hill would have seen theabsence of a registration sticker on the windshield when hepassed Lopez-Soto's car. Lopez-Soto appealed.[1] The Fourth Amendment requires only reasonable suspi-cion in the context of investigative stops. [2] Reasonable sus-picion is formed by specific, articulable facts which, togetherwith objective and reasonable inferences, form the basis forsuspecting that the person detained is engaged in criminalactivity. An officer is entitled to rely on his training and expe-rience in drawing inferences from the facts he observes, butthose inferences must be grounded in objective facts and becapable of rational explanation.[3] Officer Hill stopped Lopez-Soto because he had beeninstructed that the absence of a registration sticker visiblefrom the rear provided a reasonable basis for suspicion of aBaja California vehicle code violation. However, that policyacademy training was in error. Hill stopped Lopez-Sotobecause he had a mistaken view of the law.[4] The traffic stop was not objectively grounded in thegoverning law. What Officer Hill reasonably suspected,namely that Lopez-Soto had not affixed a registration stickerto his rear window, was not a violation of Baja California law.This could not justify the stop under the Fourth Amendment.Nor was it possible to justify the stop objectively with thefacts available to Hill when he made the stop: Hill did notcheck the windshield.[5] There was no doubt that Hill held his mistaken view ofthe law in good faith, but there is no good-faith exception tothe exclusionary rule for police who do not act in accordancewith governing law. To create an exception in this case wouldhave defeated the purpose of the exclusionary rule, for itwould have removed the incentive for police to make certainthat they properly understand the law they are entrusted toenforce. [6] Hill violated the Fourth Amendment when hestopped Lopez-Soto. The evidence had to be suppressed.[7] The inevitable discovery exception to the exclusionaryrule is available when the government demonstrates by a pre-ponderance of the evidence that it would inevitably have dis-covered the evidence through lawful means. However, thegovernment provided no evidence of what Officer Hill wouldhave done if he had not stopped Lopez-Soto when he did, andnever argued inevitable discovery to the district court. Theevidence before the court did not show that Hill intended todrive to the front of Lopez-Soto's car to check the windshield.The court committed clear error in concluding that Hill wouldinevitably have discovered that Lopez-Soto had not affixed aregistration sticker to his windshield. _____________________________COUNSEL Benjamin L. Coleman, Federal Defenders of San Diego, Inc.,San Diego, California, for the defendant-appellant.Paul C. Johnson, Jr., Assistant United States Attorney, SanDiego, California, for the plaintiff-appellee. _____________________________OPINION W. FLETCHER, Circuit Judge:Defendant-appellant Armando Lopez-Soto appeals fromthe district court's denial of his motion to suppress evidencethat was the basis of his conviction. Because the police officerwho discovered the evidence did so only after he had stoppedLopez-Soto's car without reasonable suspicion, we concludethat the stop violated the Fourth Amendment and that the evi-dence must be suppressed.IOn July 22, 1998, San Diego Police Officer Randall Hillwas driving behind and to the left of Lopez-Soto's MercuryGrand Marquis as it headed northbound on Interstate 805.Officer Hill noticed that the car displayed license plates fromBaja California, Mexico. Aware that California law requiresforeign vehicles traveling on state roadways to be properlyregistered in their home jurisdictions, Officer Hill checked thecar for a valid Baja California registration sticker.According to affidavits submitted to the district court, Offi-cer Hill had been instructed at the police academy that BajaCalifornia requires motorists to affix registration stickers insuch a manner that they are visible from the rear of the vehi-cle. Officer Hill looked for a sticker on the rear window andon the left side windows, but he did not check the windshield.When he did not see a registration sticker, he stopped Lopez-Soto's car to investigate whether it was in fact properly regis-tered.Officer Hill approached Lopez-Soto's car from the right,leaned into the front passenger-side window, and askedLopez-Soto for proof of registration. In response to OfficerHill's question, Lopez-Soto motioned to a piece of paperaffixed to the rear window. Because the printing on the paperwas light, Officer Hill could not make out the writing fromoutside the car. He therefore opened the right rear passenger-side door and leaned into the car to remove the paper for acloser look.2 At this point, he was assailed with a pungentodor that he recognized as marijuana, and he noticed somefoil-wrapped bricks sticking out from beneath the rear floormats. His subsequent search of the car and its trunk revealedapproximately 400 kilograms of marijuana.Lopez-Soto was arrested and charged with possession ofmarijuana with intent to distribute, in violation of 21 U.S.C.S 841(a)(1). Lopez-Soto moved to suppress the marijuana,arguing that it had been discovered in violation of the FourthAmendment. The district court denied this motion. Lopez-Soto then entered a conditional guilty plea, reserving his rightto appeal the denial of his motion to suppress. That appeal isnow before us, and we reverse for the reasons set forth below.IIWe review the district court's determination of reasonablesuspicion or probable cause de novo and its underlying factualfindings for clear error. See Ornelas v. United States, 517U.S. 690, 699 (1996).Before reaching the question of the constitutionality of thestop in this case, we must first decide whether reasonable sus-picion or the higher standard of probable cause is required tosupport an investigatory traffic stop under the Fourth Amend-ment. Lopez-Soto argues that the Supreme Court's decision inWhren v. United States, 517 U.S. 806 (1996), stands for theproposition that an officer must have probable cause to makea traffic stop. He relies on the Court's observation that, "[a]sa general matter, the decision to stop an automobile is reason-able where the police have probable cause to believe that atraffic violation has occurred." Id. at 810.Prior to Whren, it was settled law that reasonable suspicionis enough to support an investigative traffic stop. As theSupreme Court explained, the usual traffic stop is more analogous to a so-called Terry stop than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose observations lead him rea- sonably to suspect that a particular person has com- mitted, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion.Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (citations,footnotes, and internal quotations omitted). Likewise, in thecontext of a traffic stop, the Ninth Circuit has held that "[t]odetain a suspect, a police officer must have reasonable suspi-cion . . . ." United States v. Michael R., 90 F.3d 340, 346 (9thCir. 1996); see also 4 Wayne R. LaFave, Search and SeizureS 9.4 n.3 (3d ed. 1996) (noting that the Terry standard appliesto vehicle stops).We do not believe that the Court in Whren intended tochange this settled rule. The passage on which Lopez-Sotorelies tells us only that probable cause is sufficient to supporta traffic stop, not that it is necessary. If the Supreme Courtannounced in Whren a new rule of law, as Lopez-Soto con-tends, we would expect it to have acknowledged the changeand explained its reasoning. Such an explanation is notablyabsent from the Whren opinion. Instead, the facts of Whreninvolved speeding and failure to signal, and the parties agreedthat, from these facts, the police had probable cause to makethe disputed stop. See 517 U.S. at 810 . This threshold agree-ment allowed the Whren Court to address a different issue,namely the constitutional relevance of the officers' subjectiveintent in making the stop, to which the Court gave sustainedattention. Given that probable cause was clearly satisfied onthe facts before the Court in Whren and that the Courtdirected its focus elsewhere, we do not believe that the casualuse of the phrase "probable cause" was intended to set a newstandard.[1] Moreover, none of our sister circuits, either before orafter Whren, has concluded that a traffic stop must be justifiedby more than reasonable suspicion. Where the facts before thecourt would satisfy both reasonable suspicion and probablecause, many of the more recent cases echo the language inWhren and simply analyze the facts for probable cause, see,e.g., United States v. Sanders, 196 F.3d 910, 913 (8th Cir.1999); United States v. Brown, 188 F.3d 860, 864 (7th Cir.1999); United States v. Jones, 185 F.3d 459, 464 (5th Cir.1999); United States v. Wellman, 185 F.3d 651, 656 (6th Cir.1999), but none of these cases suggests that probable cause isthe minimum threshold for constitutionally permissible policeaction in making a traffic stop. In fact, some circuits haveexplicitly held, post-Whren, that reasonable suspicion is allthe Fourth Amendment requires. See, e.g., United States v.Hill, 195 F.3d 258, 264 (6th Cir. 1999); United States v.Navarrete-Barron, 192 F.3d 786, 790 (8th Cir. 1999); UnitedStates v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999). Wejoin those circuits and reaffirm that the Fourth Amendmentrequires only reasonable suspicion in the context of investiga-tive traffic stops.[2] Accordingly, we must determine whether Officer Hillhad reasonable suspicion when he stopped Lopez-Soto. Rea-sonable suspicion is formed by "specific, articulable factswhich, together with objective and reasonable inferences,form the basis for suspecting that the particular persondetained is engaged in criminal activity." Michael R., 90 F.3dat 346 (quoting United States v. Garcia-Camacho, 53 F.3d244, 246 (9th Cir. 1995)). An officer is entitled to rely on histraining and experience in drawing inferences from the factshe observes, but those inferences must also "be grounded inobjective facts and be capable of rational explanation." Id.;see also United States v. Sokolow, 490 U.S. 1, 7 (1989) ("TheFourth Amendment requires some minimal level of objectivejustification for making the stop." (internal quotation omit-ted)).[3] Officer Hill stopped Lopez-Soto because he had beeninstructed that the absence of a vehicle registration sticker vis-ible from the rear provided a reasonable basis for suspicion ofa Baja California vehicle code violation. That police academytraining, however, was in error. In fact, the applicable BajaCalifornia code section directs that the sticker be displayed onthe windshield. According to a translation provided by theparties, the relevant section provides that "[t]he State Trafficand Transportation Department will provide together with thelicense plates a sticker which should be placed on the upperright hand corner of the windshield." See Ley de Transito yTransportes art. 44 (Baja California, Mex.). Officer Hillstopped Lopez-Soto because he held a mistaken view of thelaw.This case is analogous to two recent Fifth Circuit cases inwhich officers similarly made traffic stops based on a mistakeof law. In United States v. Lopez-Valdez, 178 F.3d 282 (5thCir. 1999), a Texas Department of Public Safety Trooperpulled over a car because it had a broken taillight. The trooperbelieved that driving with a broken taillight violated state law,see id. at 285, but in fact it did not, see id. at 288. The courtof appeals found the stop unconstitutional because, eventhough it may have been made in good faith, it was not objec-tively reasonable. See id. at 289 & n.6. Similarly, in UnitedStates v. Miller, 146 F.3d 274 (5th Cir. 1998), the court foundthat a traffic stop was unreasonable because the allegedinfraction, having a turn signal on without turning, was not aviolation of Texas law. See id. at 279. The Fifth Circuitexplained: The rule articulated by the Supreme Court in Whren provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justi- fications for their actions. But the flip side of that leeway is that the legal justification must be objec- tively grounded.Id. We agree with the Fifth Circuit's rationale.We note that the Eighth Circuit recently upheld a trafficstop of a trailer that had two operating taillights, one of whichwas missing its red lens and emitting a white rather than a redlight. See Sanders, 196 F.3d at 913. State law required alltrailers built after 1973 to have two red taillights, but allowedtrailers built before that date to have only one red taillight.The trailer in question had been built before 1973 and wastherefore not in violation of the law. See id. The court none-theless sustained the reasonableness of the stop, noting thatthe officer could reasonably have believed that the taillightson the trailer were in violation of the statute: Even if the trailer was not technically in violation of the statute, Officer Jorgenson could have reasonably believed that the trailer violated the statute because one light was missing a red lens or because he believed that the trailer was manufactured after 1973. . . . In fact, given the apparent attempt to have two functioning taillights on the trailer, Officer Jor- genson could have reasonably believed at the time that the trailer was subject to the two taillight requirement.Id. The officer's factual belief that the trailer was manufac-tured after 1973 was not unreasonable simply because it wasmistaken. As the Supreme Court has explained, "what is gen-erally demanded of the many factual determinations that mustregularly be made by agents of the government . . . is not thatthey always be correct, but that they always be reasonable."Illinois v. Rodriguez, 497 U.S. 177, 185 (1990); see also, e.g.,United States v. Garcia-Acuna, 175 F.3d 1143, 1147 (9th Cir.1999) (basing reasonable suspicion determination in part onfactually erroneous, but reasonable, belief that license platedisplayed by stopped vehicle did not belong to it); UnitedStates v. Hatley, 15 F.3d 856, 859 (9th Cir. 1994) (upholdingwarrantless search of vehicle that police reasonably believedwas mobile but was in fact immobile); United States v.Shareef, 100 F.3d 1491, 1503 (10th Cir. 1996) (finding noviolation of the Fourth Amendment where the police reason-ably but erroneously believed that the suspect's identitymatched a "hit" from the National Crime Information Centercomputer); United States v. Lang, 81 F.3d 955, 966 (10th Cir.1996) (upholding stop based on reasonable misidentificationof vehicle's passenger); United States v. Gonzales, 969 F.2d999, 1006 (11th Cir. 1992) (remanding probable cause deter-mination for factual finding as to whether officer's mistakenbelief that defendant's wife was conducting countersurveil-lance was objectively reasonable).[4] As in the Fifth Circuit cases of Lopez-Valdez andMiller, the traffic stop in the case before us was not objec-tively grounded in the governing law. What Officer Hill rea-sonably suspected, namely that Lopez-Soto had not affixed aregistration sticker to his rear window, simply was not a vio-lation of Baja California law. This cannot justify the stopunder the Fourth Amendment. Nor is it possible to justify thestop objectively, as did the court in Sanders , with the factsavailable to Officer Hill when he made the stop: in his mis-taken belief that Baja California law required the registrationsticker to be visible from behind, Officer Hill did not checkthe windshield for the sticker. The information that he didgather -- that there was no sticker on the rear or left windows-- did not make it any less likely that Lopez-Soto was operat-ing his car in conformity with the law.[5] We have no doubt that Officer Hill held his mistakenview of the law in good faith, but there is no good-faithexception to the exclusionary rule for police who do not actin accordance with governing law. See United States v. Gantt,194 F.3d 987, 1006 (9th Cir. 1999). To create an exceptionhere would defeat the purpose of the exclusionary rule, for itwould remove the incentive for police to make certain thatthey properly understand the law that they are entrusted toenforce and obey.[6] We therefore hold that Officer Hill violated the FourthAmendment when he stopped Lopez-Soto, and that the evi-dence gathered as a result of the unconstitutional stop must besuppressed. See Wong Sun v. United States, 371 U.S. 471 ,484-85 (1963).IIIAs an alternative basis for its denial of the motion to sup-press, the district court sua sponte applied the inevitable dis-covery exception to the exclusionary rule. The district courtconcluded that, had Officer Hill not stopped Lopez-Soto whenhe did, he would inevitably have passed Lopez-Soto, checkedhis windshield, noted the absence of a registration sticker, andstopped Lopez-Soto after developing a proper factual basis forreasonable suspicion.[7] The inevitable discovery exception to the exclusionaryrule is available when the government demonstrates, by a pre-ponderance of the evidence, that it would inevitably have dis-covered the incriminating evidence through lawful means. SeeUnited States v. Mejia, 69 F.3d 309, 319 (9th Cir. 1995). Thegovernment can meet its burden by demonstrating that, "byfollowing routine procedures, the police would inevitablyhave uncovered the evidence." United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989). In this case,however, the government provided no evidence of what Offi-cer Hill would have done if he had not stopped Lopez-Sotowhen he did, and it never argued inevitable discovery to thedistrict court. The government conceded in its brief to thiscourt that the evidence before the district court did not showthat Officer Hill ever intended to drive to the front of Lopez-Soto's car to check the windshield, and it reiterated its con-cession at oral argument. We therefore find that the districtcourt committed clear error in concluding that Officer Hillwould inevitably have discovered that Lopez-Soto had notaffixed a registration sticker to his windshield.IVBecause we hold that the evidence leading to his convictionshould have been suppressed, we need not reach Lopez-Soto'sclaim regarding the length of his sentence.REVERSED. ___________________________FOOTNOTES 1 Honorable Donald W. Molloy, United States District Judge for the Dis-trict of Montana, sitting by designation.2 Lopez-Soto's attorney asked to inspect the paper and the car, but thegovernment informed him that it could not locate this evidence. Appar-ently, it had sold the car at auction and lost the paper. It is now impossibleto determine whether the paper affixed to the rear window, though not asticker, was nonetheless valid proof of registration.

Sunday, August 30, 2009

Rising BAC "Big Gulp" Defense alive and well say DUI criminal defense lawyers who are permitted such defense in California and now Alaska

California DUI criminal defense attorneys have clients who drink alcohol right before driving. A 'rising bac defense' is legitimate. That is a valid California drunk driving criminal defense lawyer defense. Especially since California DUI prosecutors often "guess" one's BAC.

Alaska's Supreme Court agrees. A silly state law prohibiting one's possible “delayed absorption” defense is unconstitutional. 1 man will get a new DUI trial.

Folks accused of DUI are reasonably permitted to point out they were less impaired at the time of driving than when a chemical test was given later.

The well-know reasonable contention — known informally as the Big Gulp defense — asserts there is a delay between a person’s consumption of alcohol and the absorption of it into the bloodstream. Because of that, a driver could drive a motor vehicle while legally sober, only to have their blood-alcohol level rise climb into the illegal range after being pulled over.

Without any understanding of science, their Legislature prohibited the defense in 2004, but now the State's high court unanimously ruled that the law denies due process rights to drunken driving defendants.

This was a victory for “the application of fairness and science” in the courtroom.
“I just believe this is an important decision for the accused and to have people who are innocent actually presumed innocent.”

2 breath-alcohol tests that followed seemed to show a climbing rate of intoxication. A test given about 35 minutes later showed a blood-alcohol level of 0.099, followed by a second, independent test 25 minutes after that showing a level of 0.119%.

If you need help with your California DUI by a trusted defense attorney, try the online Survey.

Thursday, August 27, 2009

Folks ask California DUI criminal defense attorneys if they should believe what the officer told them about this or that - can you trust him?!

Folks ask California DUI criminal defense attorneys if they should believe what the officer told them about this or that. California drunk driving criminal defense lawyers can easily twit that question with these questions:

Do you think a California DUI arresting officer is on your side?

Do you know the California DUI officer is competing for most California DUI arrests award given annually by MADD?

Do you think the California DUIofficer may possibly be keeping information from you? (e.g. test record?)

Did the California DUI cop tell you the hand-held gadget was optional and you did not have to blow?

[California DUI statute requires California DUI officer to inform you it is voluntary; you do not have to blow in the field, only at the station or jail.]

Do you think the California DUI officer wants you to challenge him and fight him?

Why might someone have suggested you may not not need a California DUI attorney, yet alone a California DUI Lawyer Specialist?

[In all California DUI misdemeanor cases in courts throughout San Diego County, one cannot represent oneself. You must get a California DUI attorney. Misdemeanors are serious, punishable by up to 6 months in jail + many very serious ramifcations including fine, etc.]

What about the California DUI field tests? Did he say how you did? Was he real fair about the way he subjectively judged your performance or ability to follow instructions?

Why did he still take your California license?

Do you trust the California Drunk Driving cop now? If not, complete the free Survey

Wednesday, August 26, 2009

CHP Tricks on how to flunk a possible California DUI Suspect taken right from CHP DUI Enforcement Manual

California Highway Patrol DUI Enforcement Techniques

PRE-ARREST SCREENING.
a. Pre-arrest screening consists of establishing a safe location to administer field
sobriety tests (FSTs), asking a series of pre-test questions, and administering a
series of FSTs.
b. It is imperative that the officer select a safe location to administer FSTs.
Where possible, administer psychophysical FSTs on a smooth flat surface with
adequate lighting.
c. A DUI investigation should not be given at a location that may be hazardous.
Although it is recognized that any area can be potentially hazardous, it is generally
agreed that certain places rank high on the list as being imminently dangerous.
These areas include:
(1) In front of a drinking establishment.
HPM 70.4 2-8
(2) In front of the subject's residence, with a gathering of people consisting of
family and/or friends.
(3) In an area which has a history of being a source of racial strife and
rioting.
(4) Within sight of any large gathering of people.
(5) Within a traffic lane.
(6) Between vehicles.
d. In the event that such a situation should present itself, the subject should be
removed from the hazardous area as quickly as possible, and the examination
conducted elsewhere. If the subject displays signs of having been drinking,
do not allow the subject to drive. Careful consideration should be given when
moving a subject so as to not violate his/her rights. In order to ensure a lawful
detention when moving the subject, one of the following should occur:
(1) Attempt to gain the subject's consent to move to another location, or;
(2) Evaluate the facts present at the time.
(a) If after contact the driver is determined not to be DUI, the
enforcement contact should be handled accordingly.
(b) If after contact reasonable suspicion exists that the driver may be
DUI, the officer may remove the driver from the hazardous area, to a
safe location, and conduct the FSTs. This is a lawful investigative
detention as long as the officer acts in a manner to quickly confirm or
dispel his/her suspicions. FSTs may be conducted as they are
investigative in nature.
(c) If after contact probable cause exists to arrest the driver for DUI, the
officer should arrest the driver. FSTs may be conducted after arrest in
order to gather additional evidence to support prosecution.
e. Officers should ask a series of pre-test questions. These questions are
designed to illicit information that will assist the officer in developing an opinion as
to alcohol and/or drug impairment. The questions contained on page 2 of the
CHP 202, DUI Arrest-Investigation Report, may be asked without a Miranda
admonition during an investigative detention. However, if the driver is placed
under arrest, officers shall advise him/her of his/her Miranda rights prior to asking
any questions intended to solicit incriminating statements.
2-9 HPM 70.4
5. OVERVIEW AND ADMINISTRATION OF FSTs.
a. Psychophysical FSTs are designed to evaluate a person’s ability to divide
his/her attention. That is, they require the subject to concentrate on several things
at once. In order to operate a motor vehicle safely, a driver must react
appropriately to a constantly changing environment while simultaneously
controlling steering, acceleration, and braking.
b. Alcohol and other drugs substantially reduce a person’s ability to divide
attention. Even when under the influence, many people can handle a single,
focused attention task fairly well. For example, a driver may be able to keep a
vehicle well within the proper traffic lane as long as the road remains straight.
When the road curves, the impaired driver may not perceive the curvature and run
off the road.
c. The concept of divided attention has been applied to psychophysical FSTs.
Most FSTs simulate the divided attention characteristics of driving. In order to
operate a vehicle safely, a driver must exercise the following mental and physical
capabilities:
(1) Information processing.
(2) Short-term memory.
(3) Judgment and decision making.
(4) Balance.
(5) Steady, sure reactions.
(6) Clear vision.
(7) Small muscle control.
(8) Coordination of limbs.
d. FSTs require a person to demonstrate at least two or more of these
capabilities simultaneously. FSTs must be simple and an average person should
have no difficulty performing the tests when sober. Each test must be thoroughly
explained and demonstrated in such a manner that the subject understands what
is expected.
e. The CHP 202S, Driving Under the Influence Field Evaluation Notes,
(Annex 2-A) is an optional tool available for officers needing to document signs of
impairment during DUI investigations. Officers who elect to utilize the CHP 202S
HPM 70.4 2-10
shall tape the original to an 8 ½ x 11 inch sheet of paper and attach it to the arrest
report. All information outlined on the CHP 202S is in strict accordance with
standards set forth by NHTSA and this manual.
6. STANDARDIZED FSTS.
a. General.
(1) In February 1975, the first major scientific study within the United States
was conducted to identify the most reliable FSTs and study their relationship
to intoxication and driving impairment. The study was conducted by the
Southern California Research Institute (SCRI) under contract from NHTSA
(DOT-HS-5-01242). The study successfully identified three reliable FSTs and
the results were published in 1977 (Psychophysical Tests for DWI Arrest).
Two subsequent studies were conducted under contract from NHTSA in order
to further develop and study the three reliable FSTs within a laboratory
controlled environment and, additionally, “out in the field.” The 1981 study
was entitled Development and Field Test of Psychological Tests for DWI
Arrest (DOT-HS-8-01970); and the 1983 study was entitled Field Evaluation
of a Behavioral Test Battery for DWI (DOT-HS-806-475). The three test
battery consisted of:
(a) Horizontal Gaze Nystagmus.
(b) Walk and Turn.
(c) One-Leg-Stand.
(2) Since 1983, the three test battery has been further studied for its
accuracy in assisting the officer in DUI investigations. The studies are:
(a) 1995 - A Colorado Validation Study of the Standardized Field
Sobriety Test (SFST) Battery, PN-95-408-17-05.
(b) 1997 - A Florida Validation Study of the SFST Battery, AL-97-05-
14-01.
(c) 1998 - Validation of the Standardized Field Sobriety Test Battery at
BACs Below 0.10 Percent, DTNH-22-95-C-05192.
(3) By utilizing the three test battery, the reliability rate for identifying drivers
with a blood alcohol level at or above the legal limit is at least 90 percent.
This information is based on the exhaustive studies regarding the three test
battery.
2-11 HPM 70.4
(4) The Department utilizes the three test battery, commonly referred to as
standardized field sobriety tests or SFSTs, and the preliminary alcohol
screening (PAS) device to assist an officer in identifying the impaired driver.
The Department recognizes five alternative FSTs and accepts that additional
FSTs may be given if approved and authorized by the local district attorney.
Officers should not rely on one test as the sole criteria for making a DUI
arrest. It is imperative that an officer base his/her opinion to arrest a
suspected DUI driver on the totality of the circumstances presented. It is
important to note that a subject DOES NOT pass or fail a field sobriety
test. As the subject performs the FST, an officer makes note of the
observable signs of impairment.
b. Horizontal Gaze Nystagmus (HGN).
(1) Because of the unique nature of this test, it should be used only by
officers who have received formal training in its administration. HGN is not a
psychophysical test. The clues associated with HGN provide valid and
reliable indicators of whether a driver is above or below the statutory Blood
Alcohol Concentration (BAC) limit.
(2) Types of Nystagmus. Nystagmus is defined as the involuntary jerking of
the eyes. There are numerous circumstances under which nystagmus may
occur. These circumstances are classified as having the following three
origins:
(a) Vestibular Nystagmus. Caused by movement or action to the
vestibular system. The vestibular system is a sense organ located in the
inner ear. It provides information to the brain and, consequently, to the
eyes about position and movement of the head to maintain orientation
and balance of the body.
(b) Neural Nystagmus. Neural nystagmus is defined as, of or relating
to, affecting a nerve or the nervous system.
(c) Pathological Disorders. Nystagmus may be caused by certain
pathological disorders. They include brain tumors, other brain damage,
or certain diseases of the inner ear. Persons suffering from these
disorders are rarely able to drive.
(3) HGN is a type of neural nystagmus. HGN is defined as the involuntary
jerking of the eyes occurring as the eyes gaze toward the side. HGN is the
most accurate and reliable FST for determining alcohol influence. In addition,
its presence may indicate use of PCP, inhalants, and central nervous system
depressants.
HPM 70.4 2-12
(4) Test Administration. It is important to administer the HGN test
systematically to ensure that nothing is overlooked.
(a) Set-up.
1 Instruct the subject to remove eyeglasses. Eyeglasses may
impede the subject’s peripheral vision, and may also impede the
officer’s ability to observe the eyes carefully. It does not matter
whether the subject can see the stimulus with perfect clarity, as
long as the subject can see and track the stimulus. Visual acuity is
not a factor with this test.
2 Inquire if the subject is wearing colored contact lenses.
Contact lenses (hard or soft) will not affect the HGN test; however,
colored contact lenses may impede an officer’s ability to evaluate
pupil size. Officers should not ask a subject to remove contact
lenses.
3 Instruct the subject to stand with his/her feet together and
hands to his/her sides. The subject shall keep his/her head still and
focus his/her eyes on the tip of the specific stimulus (e.g., eraser on
a pencil, the tip of a pen-light, or the tip of a finger) and follow the
movement with the eyes only.
4 Position the stimulus approximately 12-15 inches in front of the
subject’s nose and slightly above eye level.
(b) Step One: Tracking Ability.
1 From the center position, move the stimulus smoothly all the
way out to the subject’s left; then immediately bring the stimulus
smoothly across the face all the way out to the subject’s right and
then back to the center position (should take approximately
four [4] seconds).
2 While performing this, observe the subject’s eyes and ensure
that they track evenly. If the eyes do not track together, there is a
possibility the subject is suffering from a neurological disorder or
the subject may have an artificial eye. If the eyes do not track
together, it is recommended that HGN not be administered.
2-13 HPM 70.4
(c) Step Two: Pupil Size.
1 With the stimulus held in the start or beginning position,
visually check to see if both pupils appear to be equal in size
(should take four to five [4-5] seconds).
2 The size of the subject’s pupils may be affected by some
medical condition or injury. If the two pupils are distinctly different
in size, it is possible that the subject has an artificial eye, suffering
from a past or present head injury, or has a neurological disorder.
(d) Step Three: Lack of Smooth Pursuit.
1 Starting with the stimulus at the center position, move the
stimulus smoothly all the way out to the subject’s extreme left
(should take two [2] seconds). Immediately move the stimulus all
the way to the subject’s extreme right (this should take four [4]
seconds). At least two (2) passes should be performed on each
eye. When at the extreme, no white should be seen in the corner
of the eye.
2 While checking the left and right eye for “lack of smooth
pursuit,” look for the jerking of the eye while it is moving.
A person’s eyes that do not display “lack of smooth pursuit” will
look similar to a marble that is rolling across a polished pane of
glass. A person’s eyes that exhibit this clue will look similar to a
marble that is rolling across a sheet of coarse sand paper.
(e) Step Four: Distinct Nystagmus at Maximum Deviation.
1 While at the center position, move the stimulus to the subject’s
extreme left until no white is seen in the corner of the left eye. Hold
the stimulus at that position for at least four (4) seconds. Move the
stimulus to the subject’s extreme right until no white is seen in the
corner of the right eye. Hold the stimulus at that position for at least
four (4) seconds. At least two (2) passes should be performed on
each eye.
2 Look for a distinct, sustained jerking of the eye while the eye
gazes to the side. While unimpaired, it is possible that
approximately half the population will exhibit a slight jerking of the
eye while gazing to the extreme. This slight jerking will not be the
very distinct jerking evident when the subject is impaired.
HPM 70.4 2-14
(f) Step Five: Onset of Nystagmus Prior to 45 Degrees.
1 From the center position, move the stimulus slowly to the
subject’s left. Stop moving the stimulus once it reaches a
45 degree angle relative to the center position. The stimulus
should be moved at a speed that would take approximately
four (4) seconds to reach a 45 degree angle. If the subject’s left
eye begins jerking prior to reaching a 45 degree angle, stop moving
the stimulus and note that nystagmus was seen prior to
45 degrees.
2 The right eye should then be checked in the same fashion. At
least two (2) passes should be performed on each eye. Studies
have indicated that approximately four percent of the population,
while unimpaired, may have nystagmus prior to a 45 degree angle.
(g) Step Six: Vertical Gaze Nystagmus (VGN). Vertical Gaze
Nystagmus occurs as the eyes gaze upward. The presence of this type
of nystagmus is associated with high doses of alcohol for that individual
and certain other drugs. The drugs that cause Vertical Gaze Nystagmus
are the same ones that cause Horizontal Gaze Nystagmus.
1 Position the stimulus horizontally, approximately 12-15 inches
(30-38 cm) in front of the subject’s nose. Instruct the subject to
hold the head still, and follow the stimulus with the eyes only.
Raise the stimulus until the subject’s eyes are elevated as far as
possible. Hold for approximately four (4) seconds. Watch the eyes
closely for jerking as they are moved up and are held in the up
most position.
2 There is no drug that will cause Vertical Gaze Nystagmus that
does not cause Horizontal Gaze Nystagmus. If Vertical Gaze
Nystagmus is present and Horizontal Gaze Nystagmus is not, it
could be a medical condition.
NOTE: Vertical Gaze Nystagmus was not examined in the original
research that led to the validation of the Standardized Field
Sobriety Test battery (Horizontal Gaze Nystagmus, Walk-and-Turn,
and One-Leg Stand).
(h) Validated Clues. There are six (6) validated clues for HGN. Based
upon extensive developmental research into HGN, the criterion for this
test is four (4) out of the six (6) clues. Based on validated research,
2-15 HPM 70.4
77 percent of subjects who exhibit at least four (4) of the possible six (6)
clues will have a BAC at or above 0.10 percent.
1 Lack of smooth pursuit in the left eye.
2 Lack of smooth pursuit in the right eye.
3 Distinct nystagmus at maximum deviation (left eye).
4 Distinct nystagmus at maximum deviation (right eye).
5 Angle of onset prior to 45 degrees (left eye).
6 Angle of onset prior to 45 degrees (right eye).
(i) Scientific Validity and Reliability. The following cases are landmark
court decisions relevant to the admissibility of HGN.
1 Arizona State v. Blake (1986). This is considered a landmark
case on HGN because it was the first state supreme court level
ruling. The Arizona Supreme Court found that HGN satisfies the
Frye standards for evidence to corroborate or attack the issue of a
suspect’s impairment (the Frye case set the standards governing
the admissibility of “new” scientific evidence).
2 People v. Joehnk (1995) 35 Cal.App.4th. Joehnk was stopped
by a San Diego Police officer for a defective brake light. The officer
observed outward signs of intoxication. After the officer correctly
administered HGN and other FSTs, the officer formed the opinion
that Joehnk was under the influence and arrested him.
a Joehnk was convicted of DUI. On appeal, he argued that
HGN did not meet the requirements of Frye. Under Frye, a
court must determine whether a clear majority of the relevant
scientific community accepts that the three-part HGN test is
useful, when viewed with other relevant indications, in
deciding whether a subject is under the influence of alcohol.
b Finding: The court upheld the definition of the relevant
scientific community as behavioral psychologists, highway
safety experts, criminalists, and medical doctors concerned
with the recognition of alcohol intoxication.
HPM 70.4 2-16
c The court further concluded that HGN is accepted in the
scientific community as one indicator that a person is under
the influence of alcohol.
(j) Relationship of HGN to Specific BAC Level.
1 People v. Loomis (1984) 156 Cal.App.3d Supp.1. The court
held that the officer was not entitled to testify as either a lay or
expert witness about HGN, or to give his opinion about the
defendant’s BAC.
2 Stephen Loomis was driving his red Ferrari on US 101 in
San Diego County when he was stopped by a CHP officer for
speeding and straddling a lane. The officer noticed objective signs
of intoxication and administered “Lateral Gaze Nystagmus.” The
officer testified that based on this test, he formed an opinion as to
Loomis’ BAC. He stated that Loomis’ eye reaction was less than
20 degrees and estimated his BAC between 0.15 and 0.16 percent.
3 Finding: “Without a showing of scientific expertise, a police
officer is not qualified to make a numerical correlation between
HGN and the numerical level of blood alcohol.”
(k) Officer Training, Experience, and Application.
1 Iowa State v. Murphy (1990). The court ruled that the results
of a HGN test could be admitted into evidence because HGN was
one of the SFSTs and the observations of intoxication obtained
from the test were objective in nature. The court noted that the
officer was properly trained to administer the test and that there
was no need that an officer be specially qualified to be able to
interpret the results.
2 People v. Ojeda (1990) 225 Cal.App.3d 404. Two sheriff
deputies stopped Ojeda for driving erratically. The deputies
observed objective signs of intoxication and administered five
FSTs. One of the FSTs was HGN. Ojeda was arrested for DUI. At
the trial, one deputy testified that he observed distinct nystagmus at
the extremes and a lack of smooth pursuit. Ojeda was found guilty.
a Upon appeal, Ojeda argued that any testimony
concerning the test results required scientific expertise which
the deputy did not possess. Furthermore, he argued that the
deputy did not have the medical expertise to offer an opinion
2-17 HPM 70.4
that there is a correlation between nystagmus and intoxication.
b Court Finding: “We hold only that an officer with
sufficient experience may testify based on his/her own
experience with relationship between HGN and alcohol
intoxication, to an opinion that the subject was or was not
under the influence.”
3 In order to document personal experience and training relating
to HGN, officers may use the CHP 202C, Influence Evaluations
(Rolling Log).
c. Walk and Turn.
(1) Based on scientific research, the Walk and Turn SFST is considered to
be the most sensitive psychophysical test. This SFST should be conducted
on a reasonably smooth flat surface with enough room for the subject to take
nine (9) heel-to-toe steps. This SFST can be used with or without a line for
the subject to walk on. If a line is not available, it should be explained to the
subject to walk an imaginary straight line.
(2) The Walk and Turn test requires the subject to stand in a heel-to-toe
fashion with the arms at the sides while a series of instructions are given.
Then, the subject must take nine (9) heel-to-toe steps along a straight line,
turn in a prescribed manner, and take another nine (9) heel-to-toe steps along
the line. All of this must be done while counting the steps aloud, keeping the
arms at the sides, and looking at his/her feet. The subject must not stop
walking until the test is completed.
(3) This SFST requires the subject to divide attention among mental tasks
and physical tasks. The mental tasks include comprehension of verbal
instructions, processing of information, and recall of memory. The physical
tasks include balance and coordination while standing still, walking, and
turning.
(4) Test Administration. The Walk and Turn test has two (2) stages: the
instruction stage and the walking stage.
(a) Instruction Stage.
1 Instruct the subject to place his/her left foot on a line.
2 The subject’s right foot is then placed ahead of the left foot with
the heel of the right foot against the toe of the left foot.
HPM 70.4 2-18
3 Instruct the subject to place his/her arms to his/her sides and
to remain in that position during the instruction phase and until told
to begin.
4 Instruct the subject to take nine (9) heel-to-toe steps along the
line, turn on the line, and return taking nine (9) heel-to-toe steps.
5 The turn is executed by keeping the ninth (left foot) step in
place and rotating around that foot (counter-clockwise) by taking
small steps with the right foot 180 degrees or until the subject is
facing in the opposite direction.
6 The subject should watch his/her feet while walking, keep
his/her hands to his/her sides, while counting each step taken out
loud.
7 Instruct the subject that once the walking begins, not to stop
walking until the test is completed.
(b) Walking Stage. The subject executes the test.
(5) Validated Clues. Based on validated research, 68 percent of subjects
who exhibit at least two (2) of the following eight (8) validated clues will have
a BAC at or above 0.10 percent:
(a) Cannot balance during the instructions. This clue is recorded only if
the feet actually break apart. Do not record this clue simply because the
subject raises his/her arms or wobbles slightly. Even though raising the
arms or wobbling is not a validated clue, officers may document the
observation as an objective sign of intoxication.
(b) Starts too soon. This clue would be recorded only after the subject
has been told not to start walking until told to do so. These first two (2)
clues, like all clues in this SFST, can be accumulated only once. If the
subject loses balance twice during the instruction stage, it only
constitutes one (1) clue.
(c) Stops while walking. Record this clue if the subject stops walking
during the test. This includes a pause during walking.
(d) Misses heel-to-toe. In order to document this clue, a gap between
the heel and toe of at least one-half inch is necessary.
(e) Steps off the line. Document this clue if the subject steps either
right or left of the line.
2-19 HPM 70.4
(f) Uses arms to balance. In order to document this clue, a movement
of the arms of six (6) or more inches from the side is required.
(g) Improper turn. Document this clue if the subject turns other than the
way the officer has demonstrated the turn. This includes if the subject
staggers, stumbles, or falls during the turning movement.
(h) Takes the wrong number of steps. Document this clue if the subject
takes more or fewer than nine (9) steps in either direction. Mistakes in
the verbal count only do not justify recording this clue.
(6) The SFST may be terminated if the subject cannot safely complete it.
Count all eight (8) clues if the SFST is terminated for this reason. Keep in
mind, if the subject is performing poorly on this or any FST, but is still
relatively safe, allow them to continue.
(7) While performing this SFST, it is possible that the subject may exhibit
signs and symptoms of impairment that are not included as one of the
validated clues. These signs and symptoms should be documented and
considered by an officer when forming his/her opinion to arrest.
d. One-Leg-Stand.
(1) This SFST is the last of the three SFSTs. This SFST should be
conducted on a reasonably smooth flat surface. The One-Leg-Stand SFST
requires the subject to stand on one leg while the other leg is extended in
front of the subject in a “stiff-legged” manner with the foot held approximately
six (6) inches above the ground. The subject is to stare at the elevated foot
and count out loud in a designated fashion for 30 seconds.
(2) The One-Leg-Stand is another SFST that employs divided attention. The
subject’s attention is divided among such simple tasks as balancing, listening,
and counting out loud. Although none of these tasks are particularly difficult
by themselves, the combination can be very difficult for someone who is
impaired.
(3) Test Administration.
(a) Start by instructing the subject to stand with his/her feet together
and his/her arms down to his/her sides. The subject shall maintain that
position while the officer provides instructions on how to complete the
test. Instruct the subject not to begin until told to do so.
(b) Instruct the subject that, when given instructions to begin, he/she
must raise one (1) leg of his/her choosing in a “stiff-legged” manner and
HPM 70.4 2-20
hold the foot approximately six (6) inches off the ground with the toes
pointed forward so that the foot is parallel with the ground.
(c) The subject must keep his/her arms at his/her sides and must keep
looking directly at his/her elevated foot while counting out loud in the
following fashion: “one thousand and one, one thousand and two, one
thousand and three, and so on until told to stop.”
1 One purpose of having the subject count in this fashion is to
observe his/her internal clock. To estimate the passage of 30
seconds, a person will normally count in the following fashion: “one
thousand and one, one thousand and two, one thousand and
three…” Counting in this fashion will usually allow a person to
estimate or actually determine a 30 second passage of time.
2 It is important that the SFST last for 30 seconds. Accordingly,
officers should note the time for 30 seconds and stop the SFST
after the passage of 30 seconds. For example, if the subject
counts slowly, stop the test when 30 seconds have gone by, even if
the subject has only counted to “one thousand and twenty.”
Contrarily, if the subject is counting rapidly, allow them to continue
counting until the passage of 30 seconds has expired.
3 The validation studies have shown that many impaired people
can maintain his/her balance for up to 20 seconds, but seldom for
up to 30 seconds.
(4) Validated Clues. Based on validated research, 65 percent of subjects
who exhibit at least two (2) out of the following four (4) clues will have a BAC
at or above 0.10 percent:
(a) Swaying. Swaying means a very distinct, very noticeable side-toside,
front-to-back, or rotational movement of the subject’s elevated foot
or of the subject’s body. Slight tremors of the foot or body should not be
interpreted as swaying.
(b) Using arms to balance. Document this clue when the arms come
away from the sides six (6) or more inches.
(c) Hopping. Document this clue if the subject hops on the support foot
during the test.
(d) Putting the foot down. Document this clue if the subject puts his/her
elevated foot down during the test. If the subject does drop his/her foot
2-21 HPM 70.4
during this SFST, instruct the subject to lift his/her foot up and continue
counting where he/she left off.
(5) Terminate the SFST if the subject cannot safely complete it. Count all
four (4) clues if the SFST is terminated for this reason. Keep in mind, if the
subject is performing poorly on this or any FST, but is still relatively safe,
allow them to continue.
(6) While performing this SFST, it is possible that the subject exhibits signs
and symptoms of impairment that are not included as one of the validated
clues. These signs and symptoms should be documented and considered
when forming an opinion to arrest.
NOTE: DUE TO THEIR SCIENTIFIC VALIDATION, HGN, WALK AND
TURN, AND ONE-LEG-STAND SHOULD BE USED AS PRIMARY FSTs
WHENEVER POSSIBLE.
7. PRELIMINARY ALCOHOL SCREENING (PAS) DEVICE. The PAS test should be
given in conjunction with SFSTs or the alternative FSTs listed in this chapter. Except
for unusual circumstances, the PAS device shall be the last FST given to a subject.
Refer to Chapter 7 of this manual for PAS device operating instructions.
8. ALTERNATIVE FSTs. Alternative FSTs should be used if for some reason the
SFSTs cannot be given. The remaining tests are considered alternative or additional
FSTs:
a. Romberg Balance.
(1) The Romberg Balance FST was among one of the sobriety tests
considered by SCRI during the 1977 study. It was also considered one of
six optimal sobriety tests during a 1974 Finnish study. This FST was
implemented by the Los Angeles Police Department (LAPD) during the
formation of their Drug Recognition Evaluator (DRE) program and it was
accepted by NHTSA due to its unique divided attention qualities.
(2) Test Administration. The Romberg Balance FST requires the subject to
stand with his/her feet together, head tilted slightly back, and eyes closed
while estimating the passage of 30 seconds. When the subject believes that
the 30 seconds have passed, he/she should tilt his/her head forward, open
his/her eyes, and say, “stop.”
(a) Instruct the subject to stand straight with his/her feet together and
arms down to his/her sides. That position is to be maintained while the
HPM 70.4 2-22
test instructions are given. Emphasize that the subject must not start the
test until told to “start.”
(b) When told to do so, instruct the subject to tilt his/her head back
slightly and close his/her eyes. Ensure that the subject tilts his/her head
back prior to closing his/her eyes. Closing the eyes first, then tilting the
head back, may impair an individual’s normal equilibrium.
(c) Instruct the subject that when told to “start,” he/she must keep
his/her head tilted back with his/her eyes closed until he/she thinks that
30 seconds have passed by. Do not tell the subject to count to
30 seconds or use any other specific procedure to keep track of time.
Likewise, do not tell the subject that he/she is not allowed to count to 30
seconds.
(d) When the subject believes that 30 seconds have passed, he/she
should bring his/her head forward, open his/her eyes, and say, “stop.”
(e) Officers should glance at a watch and pick a convenient time to start
the test. When the subject says “stop,” record the passage of time. If 90
seconds elapses before the subject opens his/her eyes, stop the test
and ask, “how much time was that?”
(3) Test Interpretation. Some drugs tend to “speed up” the subject’s internal
body clock; so, the subject may open his/her eyes after only 10 or 15
seconds. Other drugs may “slow down” the bodies internal clock; so, the
subject may keep his/her eyes closed for 60 or more seconds. The major
clues associated with the Romberg Balance FST are:
(a) Subject’s ability to follow instructions.
(b) The amount and direction in which the subject sways.
(c) The subject’s estimated passage of 30 seconds.
(d) Eyelid tremors and body/leg tremors.
(e) Muscle tone (either more rigid or more flaccid than normal).
(f) Any statements or unusual sounds made by the subject when
performing the test.
b. Finger to Nose. The Finger to Nose FST was among the six optimal sobriety
tests that were tested during the initial 1977 study conducted by SCRI. It was also
included in a Finnish study conducted in 1974 and was implemented by the LAPD
2-23 HPM 70.4
during the formation of their DRE program. The test is also accepted by NHTSA
due to its unique divided attention qualities and depth perception issues.
(1) Test Administration. The subject is required to bring the tip of the index
finger up to touch the tip of the nose while his/her eyes are closed and his/her
head is tilted slightly back (standing in a manner identical to that required for
the Romberg Balance FST). The subject will attempt this six (6) times,
three (3) with each hand. The officer will instruct the subject as to which hand
to use on each attempt. The Finger to Nose FST differs from the other
psychophysical tests in that the examiner must continue to give instructions to
the subject throughout the test.
(a) Start by instructing the subject to place his/her feet together and
place his/her arms down at his/her sides.
(b) Instruct the subject to make a fist with the index finger extended and
rotate his/her palms forward.
(c) When told to do so, the subject should tilt his/her head back slightly
and close his/her eyes.
(d) Ensure that the subject tilts his/her head back prior to closing his/her
eyes. Closing the eyes first, then tilting the head back, may impair an
individual’s normal equilibrium.
(e) The subject will be instructed to bring either the left or right index
finger up to touch the tip of his/her nose. As soon as the finger touches
the tip of his/her nose, they must return the arm back down to his/her
side.
1 The arm shall come straight out in front of the subject and then
the extreme tip of the index finger brought back to touch the
extreme tip of the nose.
2 The following sequence should be followed when giving this
FST: “Left, Right, Left, Right, Right, Left.”
(2) Test Interpretation. The major clues associated with the Finger to Nose
FST are:
(a) The subject’s ability to follow instructions.
(b) The amount and direction in which the subject sways.
(c) Eyelid tremors and body/leg tremors.
HPM 70.4 2-24
(d) Muscle tone (either more rigid or more flaccid than normal).
(e) Any statements or unusual sounds made by the subject when
performing the test.
(f) The subject’s depth perception when attempting to touch the nose.
Was the speed slow or fast when bringing the finger to the nose?
(g) Document where the subject touches his/her index finger on his/her
face. Did the subject use the correct sequence as directed?
c. Hand Pat.
(1) Although the Hand Pat test has not been tested under scientific
conditions, experienced officers have indicated that it is a reliable FST. It
requires the subject to divide his/her attention between simple mental and
physical tasks. Many of the same necessary exercises used to drive a
vehicle are tested with the Hand Pat FST. Tasks such as:
(a) Information processing.
(b) Short-term memory.
(c) Judgment and decision making.
(d) Steady, sure reactions.
(e) Clear vision.
(f) Small muscle control.
(g) Coordination of limbs.
(2) The Hand Pat FST requires a subject to place one hand extended, palm
up, out in front of him/her. The other hand is placed on top of the first with the
palm facing down. The top hand then begins to pat the bottom hand. The top
hand rotates 180 degrees alternating between the back of the hand and the
palm of the hand. The bottom hand remains stationary. The subject counts
out loud, “ONE, TWO, ONE, TWO, ONE, TWO, etc.,” in relation with each
pat.
(a) Test Administration. Start by instructing the subject to stand with
his/her feet together and arms to his/her sides. Instruct the subject not
to begin until told to do so.
2-25 HPM 70.4
1 When told to do so, instruct the subject to put one hand out in
front of him/her with the open palm facing upward. The opposite
hand is then placed on top of the first hand with the open palm
facing downward.
2 The hand with the palm facing upward is held in a stationary
position. The hand on top with the palm facing downward will be
the only hand moving.
3 When told to begin, the subject will rotate the top hand
180 degrees and pat the back of the top hand to the palm of the
bottom hand simultaneously counting out loud, “ONE.” The top
hand then rotates 180 degrees so the palm of the top hand pats the
palm of the bottom hand simultaneously counting out loud, “TWO.”
The process then repeats. The subject should start at a slow
speed then, gradually increase the speed until a relatively rapid
pace is reached.
4 The subject should perform this FST for a minimum of
10 seconds but no more than 15 seconds.
(b) Test Interpretation. The major clues associated with the Hand Pat
FST are:
1 The subject’s ability to follow instructions.
2 Starts too soon.
3 The subject does not count as instructed.
4 The subject does not pat his/her hands as instructed.
5 Stops before instructed to do so.
d. Finger Count.
(1) The Finger Count FST has been used by experienced officers to assist
them in DUI investigations for several years and was among one of the six
primary FSTs studied by SCRI during the 1977 scientific research of FSTs.
The Finger Count FST is also recommended by NHTSA as an additional test
to assist an officer with a DUI investigation. Many of the same necessary
exercises used to drive a vehicle are tested with the Finger Count FST.
Tasks such as:
(a) Information processing.
HPM 70.4 2-26
(b) Short-term memory.
(c) Judgment and decision making.
(d) Steady, sure reactions.
(e) Clear vision.
(f) Small muscle control.
(g) Coordination of limbs.
(2) The Finger Count FST requires a subject to put one hand in front of
him/her with the extended palm facing upward. The tip of the thumb is then
touched with the tip of the index, middle, ring, and little finger. After each
touch, the finger and thumb are separated. The subject is required to count
out loud, “ONE, TWO, THREE, FOUR” in relation to each finger-thumb
connection. The process is then reversed. Three (3) complete sets are
performed.
(a) Test Administration. Start by instructing the subject to stand with
his/her feet together and arms to his/her sides. Instruct the subject not
to begin until told to do so.
1 When told to do so, instruct the subject to extend one hand
directly in front of him/her. Open the hand with the palm facing
upward. The thumb is then touched with the index finger and the
subject shall count out loud, “ONE.” The thumb is then touched
with the middle finger and the subject shall count out loud, “TWO.”
The thumb is then touched with the ring finger and the subject shall
count out loud, “THREE.” The thumb is then touched with the little
finger and the subject shall count out loud, “FOUR.”
2 The process is then reversed. The thumb is touched with the
little finger and the subject shall count out loud, “FOUR.” The
thumb is touched with the ring finger and the subject shall count out
loud, “THREE.” The thumb is then touched with the middle finger
and the subject shall count out loud, “TWO.” The thumb is then
touched with the index finger and the subject shall count out loud,
“ONE.”
3 The subject is then instructed to perform three (3) complete
sets. Ensure that the subject understands the FST instructions.
2-27 HPM 70.4
(b) Test Interpretation. The major clues associated with the Finger
Count FST are:
1 The subject’s ability to follow instructions.
2 The subject starts too soon.
3 The subject does not count as instructed.
4 The subject does not touch fingers as instructed.
5 The subject does not perform the correct number of sets.
6 The subject stops before instructed to do so.
e. Alphabet.
(1) The Alphabet FST has been used for several years to assist law
enforcement officers in DUI investigations. It also has been recommended by
NHTSA as an additional test to assist an officer with a DUI investigation since
many of the same tasks used to drive a vehicle are tested with this FST
(tasks such as information processing, short-term memory, judgment and
decision making, balance, steady and sure reactions, clear vision, small
muscle control, and coordination of limbs).
(2) Test Administration. The Alphabet FST requires a subject to recite the
English alphabet out loud. An alternate method to conduct the Alphabet FST
requires a subject to write the English alphabet and then sign and date the
paper.
(a) Verbal Method.
1 Start by instructing the subject to stand with his/her feet
together and arms to his/her sides. Instruct the subject not to begin
until told to do so.
2 Ask the subject if they know the English alphabet. Ascertain
what education level the subject may have to ensure his/her ability
to perform this FST.
3 Instruct the subject to verbally recite the English alphabet.
HPM 70.4 2-28
(b) Written Method.
1 Start by instructing the subject to stand with his/her feet
together and arms to his/her sides. Instruct the subject not to begin
until told to do so.
2 Ask the subject if they know the English alphabet. Ascertain
what education level the subject may have to ensure his/her ability
to perform this FST.
3 Place a piece of paper on a solid stationary object and give a
pen to the subject. The paper should be a piece of note paper or
other paper small enough to be attached to the report.
4 Instruct the subject to write the English alphabet on the piece
of paper. Also, instruct the subject to sign and date the paper.
5 If the subject is arrested, the paper shall be attached to the
arrest report and retained with the original file. If the subject is not
arrested, the paper may be destroyed since there is no legal
requirement to retain the paper.
(3) Test Interpretation. The major clues associated with the Alphabet FST
are:
(a) The subject’s ability to follow instructions.
(b) The subject starts too soon.
(c) The subject does not recite the alphabet correctly.
(d) The subject does not write the alphabet correctly (e.g., omits,
repeats letters, runs out of space on paper, size of letters are
inconsistent, writes in cursive, etc.).
(e) The subject exhibits slurred or incoherent speech.

9. REFUSAL TO COOPERATE.
a. It is impossible to demand or force anyone to complete an FST against
his/her will. If a subject refuses to take one or more of the FSTs, the significance
of the test and of his/her refusal should be explained in the narrative of the report.

Source CHP's December 2007 memo re: HPM 70.4 (Driving Under the Influence Enforcement Manual)

If arrested for a california dui by the chp, contact a criminal defense attorney asap.

Tuesday, August 25, 2009

California DUI Lawyers use Instruction to explain accuracy of breath test result depends on one's partition ratio which varies from statutory ratio

California DUI attorneys attacking breath test results (.08 to .14) want the jury to be properly instructed in a drunk driving jury trial. Here's what should be used.

JURY INSTRUCTION UNDER CALIFORNIA VEHICLE CODE 23610
PEOPLE v. MCNEAL __ (2007) Cal. App. 4th __ Case no. E041226 filed 9 21 07

Alcohol contained only in the breath does not cause impairment. It is the impact of alcohol on the central nervous system, particularly on the brain, that causes the physical and psychological changes associated with impairment. Alcohol reaches the central nervous system through the blood. When used to establish blood alcohol levels, breath testing devices use a mathematical constant to approximate the percentage of alcohol in the blood based on the amount of alcohol present in a breath sample.

Because intoxication occurs when alcohol in sufficient amounts is carried to the central nervous system through the bloodstream, evidence of alcohol in a person’s bloodstream is relevant to proving that a defendant was under the influence of alcohol. When the evidence of blood alcohol is based on a breath test, the accuracy of the breath alcohol measurement as an indicator of the amount of alcohol in the defendant’s bloodstream is important. Such accuracy depends in part on the extent to which the defendant’s actual partition ratio varies from the statutory partition ratio. Evidence of a defendant’s personal partition ratio may show that the breath test overstates or understates the amount of alcohol in his bloodstream, thereby reducing or increasing the likelihood that he was impaired.

Monday, August 24, 2009

DUI Lawyer posts lists of California Victories

California DUI criminal defense attorney Rick Mueller has a list of just some of the California DUI / DMV Victories & Drivers' Licenses Saved In Past Several Years

Name BAC% Type of Test/Other



Adams


.14


Breath/Military Gate + Prior

Adams


Neg


Blood + Refusal

Ames


.02


Breath - Under 21/Accident

Arana


.03


Breath - Under 21/Speeding

Archer


.08


Breath/Erratic, weaving

Arcia


.14


Breath/Accident

Arredondo


.21


Blood/Weaving

Atkinson


.30


Blood/Accident + child in car

Babak


.20


Blood/Refusal + Prior

Babauta


.08/.09


Breath

Badway


.10


Breath/Accident

Bafi


.16


Breath/Improper U-turn

Bak


.13


Blood/Driving without headlights

Balmer


.08/.07


Breath/California roll+ Prior

Becerra


.01/.01


Breath/Trespass - Under 21

Beckel


.07


Blood/Ran Red Light

Beglinger


.08/.07


Breath/Ran out of gas

Bohs


.22


Breath/Weaving per citizen

Boughner


.10/.06


Blood + Breath/Speeding

Boud


.06


Breath - Under 21/Accident

Boud


.06


Breath - Under 21/Accident

Brady


.13


Blood + Prior

Brooks


.13/.14


Breath/Drive on Center Median

Burgess


.16


Blood/Almost Struck Another Vehicle/p>

Burns


.14


Blood/Speeding

Buettgenbach


.08


Breath/Checkpoint

Cameron


.27


Blood

Camper


.08/.07


Breath

Carrillo


.05/.06


Breath + Under 21/US Border

Cheney


.19/.17


Breath-Mouth Alcohol/Weaving

Cherico


.14/.15


Breath + Blood/Accident

Chipman


neg op


Accident

Choitner


.11/.11


Breath/Speeding - stop others

Comer


.17


Blood/Ex. of Speed, Backing Up @ Red Light

Cotton


neg op


Speeding/illegal movement

Coulthard


.22


Breath/Weave/No signal/Speed

Cox


.08/.07


Breath/Blood

Demoranville


neg op


Accident, DUI

Diehl


.18


Breath/Accident

Downing


Drugs


Blood/Weaving

Dolan


.22


Blood/Speed/Straddle + Prior

Dufau


.20


Blood + Under 21/Accidente

Eaves


.12/.13


Breath/Weaving

Edmett


.15/.16


Breath/Failure to stop

Elmashini


.11


Breath/Blood/90/30 mph zone

Erbschloe


.17


Blood/Accident + Hit & Run

Ericson


Drugs


Blood/Breath + Hit & Run

Espindola


.08/.07


Breath/Blood + Accident

Even


.23


Blood/Erratic per citizen

Ezzati


.17/.18


Breath/Accident

Fall


.23


Blood/Accident

Frederick


.10


Breath/Obstructed license plate

Gallaher


.04


Breath/50/20 mph zone + Under 21

Gichuki


.19


Blood/Accident

Gonzales


.21


Blood/Accident

Greer


.08/.09


Breath/Blood/Speeding

Guiterrez


.15/.17


Breath/No headlights

Gundersen


.13


Breath/Not Stop @ stop sign

Gunion


.17


Blood/Breath/Ignition running
in #1 lane + Under 21 years old

Hall


.09


Breath/No front license plate

Hammett


.07/.08


Breath

Harpell


.19


Blood/Weaving

Harris


.15/.16


Breath/Failed to go on green

Hauck


.11


Blood/Speeding + Prior

Hawkins


.09/.10


Blood/Breath + Under 21 years

Hawkins


.28


Blood/Drunk per citizen

Heinonen


.10


Blood/Headlight not on

Hernandez


.17


Blood/Blocking a roadway + Prior

Hersum


.07/.08


Blood/Breath/Speeding/Tailgating + Under 21

Heitman


.05/.06


Breath + Under 21 years old

Hughes


.03


Breath + Under 21/No Seatbelt

Hunt


.19


Blood/DUI Checkpoint

Iburg


.08


Breath/Impede Right of Way

Jackson


.15


Breath/Refusal

Johnson


.15


Breath + Under 21 years old

Johnston


.14/.15


Breath/Accident

Kelley


.06


Breath/Under 21

Kennedy


.15


Blood/Weaving

Ko


.17


Breath/Accident + Prior

Kohrig


.16


Breath

Kowalski


.08


Breath

Kruger


.19


Blood/Accident, no license

Kuma


.17


Blood + Accident

Lam


.16


Breath/Under 21

Ledyarb


.10/.07


Breath/Blood + Accident

Lewis


.11/.12


Breath/On side of highway

Lind


.17


Blood/Failure to use turn signal

Logsdon


.40


Blood/Accident + Hit & Run

Lorber


Refusal


Refusal + Prior

Lowe


.15


Blood/Wide turns

Machida


neg op


No stop/illegal movement-red arrow/reckless driving

Mal


.12


Breath/Fell asleep, blocking road + Prior

Maldonado


.20/.21


Breath/unsafe speed

Manglicmot


.13


Blood/911 call, 20/25

Mannion


.20/.21


Breath/U.S. Border + Prior

Marek


Drugs


Blood/Brake light out

Martin


.08


Breath/Stopped on side of road

Martineau


.25


Blood/Speeding + Straddling

Mason


neg op


Speeding/DUI

McCalley


.13


Breath/Weaving

McCarthy


.09/.10


Breath/Drove to Military gate

McMahon


.11


Blood/Speeding

Mejia


.15


Blood/Broken Tail Lamp

Michael


.09


Breath/Weaving

Montoya


.15


Breath/Weaving

Montoya


.12/.12


Breath/Driving w/out lights + Prior

Morgan


.22


Blood/Sleeping in vehicle

Murphy


.13


Blood/Weaving

Navarro


.08


Breath/95 mph

Neu


.09/.10


Breath/Wrong way street + prior APS

O'Connell


.08


Breath/Accident

Pardoen


.04


Breath/No stop + Under 21

Parish


.05


Breath/Accident

Parsons


neg op


Six moving violations

Patton


.15


Blood/Urinating in Public

Patil


.07/.09


Blood/Breath/Weaving

Peck


.11


Breath/Straddling, Fluctuating speeds

Peter


.16


Forced Blood/95 mph + Refusal

Philip


.11


Breath

Porter


.06


Breath + Under 21

Porter


.24


Blood/Accident + Prior

Proctor


.08/.09


Breath/El Centro Bureau of Land Management + Prior

Purkey


.08/.07


Breath - Under 21/Checkpoint

Pyne


.08/.07


Breath/Weaving + Prior

Quintero


.08/.06


Breath/Speeding + Under 21

Ramirez


.10


Breath/Stopped by MP at Gate

Reilly


.14/.13


Breath/BUI - Negligent

Reinicke


.11


Blood/Wrong side, nearly hit cop

Rinard


.08/.07


Breath

Roberts


.20


Blood

Robeiro


.09


Breath + Accident

Rothblatt


.11


Blood/Accident

Rudden


.19


Blood/Speeding

Sadiarin


.15


Blood/Passing thru Cal Trans

Scales


.18


Breath + Accident

Scanlon


.14


Breath/Friends throwing cans

Schaefer


.04/.03


Breath/Speeding + Under 21

Schmidt


.16


Breath/Red Light/Speed+ Prior

Schulte


Drug


Blood/Accident

Schwartz


.12


Blood/Weaving

Segovia


Refusal


Accident

Serrano


.11


Breath/Officer Miller

Servis


.05/.06


Breath/U.S. Border Stop

Shoemaker


09/.10


Breath

S Shirey


.08


Blood/Speeding

Shook


.09/.10


Breath/Driving without headlights

Shubert


.08/.06


Breath

Snyder


.05


Blood/Drugs

Sorooshian


.13/.14


Breath/Stopped to use cell phone

Spindler


.06/.08


Blood/Breath

Sticka


.16


Breath/Tailgating

Sukhinin


.09


Blood/Unauthorized BL. Drawer

Tangeman


.11


Blood

Taylor


.16


Breath/No front license plate

Tchernycheva


skills


Rear-end accident

Thomas


.16


Blood/Unauthorized BL. Drawer

Thompson


.08/.06


Breath

Thurm


.11


Breath/Weaving + Speeding

Vanbibber


.09


Breath/Disregard signal

Vera Cruz


.17


Blood/Weaving side to side

Virk


.09/.06


Breath/Ran out of gas

Wait


.021


Breath/Under 21-no headlights

Watts


skills


Improper turning

Weaver


.09/.07


Breath

Weber


.18


Blood/Accident

Whitcomb


.26/.27


Breath/Accident + Prior

White


.09


Blood/Accident

Whiteman


.08


Blood + Accident

Williams


.22


Blood/Tinted Windows

Wilson


.19


Blood/Drifting + Child in car

Yeargin


.09


Breath

Yen


.15/.16


Breath/Weaving

Zuckerman


.08


Breath/Accident

DMV Orders of Set Aside (of each DMV suspension action) are public records, available upon request. Above are all DMV victories resulting in saving driver license or privileges - avoiding DMV APS suspensions ranging from 4 months to 1 or 2 years.

Every case Mr. Mueller defends is different with respect to the facts, strategy and/or tactic. The victories listed were dependent on the facts of the particular cases. The results will differ if based on different facts. The victories do not in themselves constitute or guarantee a prediction in your DMV or DUI outcome. Of course, your likelihood of prevailing increases significantly if you retain a California DUI Lawyer Specialist.

Sunday, August 23, 2009

15,000 Chinese arrested for DUI in a couple of days

Chinese police arrested about 15,000 people for DUI in a 2 month nationwide crackdown on drunk driving.

The DUI campaign was launched to prevent serious traffic accidents two months ahead of the 60th anniversary of the founding of the People's Republic of China in October.

There's been no decline in the number of DUI cases were reported since the campaign was launched a week ago.

Among these drivers, 2,052 or 13.7 percent recorded a blood alcohol concentrations at or above 80 mg per 100 ml when seized by the police, according to State Ministry.

Males make up about 98% of drunk drivers while 72% of DUI drivers are 30 to 49.

Once DUI drivers are caught, drivers licenses are suspended for 3 or 6 months. In serious cases, the drunk driver is detained for 15 days. If a DUI driver is caught 2 times in a year, his or her license will be revoked for 2to 5 years.

No idea on how a DUI criminal defense attorney operates in this system.

Friday, August 21, 2009

Weekend Warning - Cops' DUI Checkpoints in California, per Defense Attorney

News Alert!! DUI Checkpoints in California. Be careful as secret dui police do not disclose drunk driving roadblock locations. These dui checkpoints must be constitutional in California.

List of California DUI / Drunk Driving Checkpoints for this weekend, to date:

San Bernardino Police Department will be conducting a DUI/Drivers License checkpoint on Friday, August 21, 2009, from 6:00 PM to 2:00 AM, in the 300 block of South Pepper Avenue, in San Bernardino.

On Friday August 21, 2009, the Napa Police Department will be conducting a DUI/Drivers License checkpoint somewhere in the city limits of Napa.

The Crescent City Police Department plans to set up a sobriety checkpoint late Friday through early Satur­day with the assistance of the California Highway Patrol.
The location was not disclosed, but police will be “targeting roads where there is a high volume of vehicular traffic and a high frequency of drunk driving.

Riverside County Sheriff’s Department: Officers from the Moreno Valley Police Department announced they will be conducting a DUI/Drivers License Checkpoint this Friday between 6:00 p.m. and midnight. They will be partnering with thousands of other law enforcement, beginning August 21st, throughout the county. The message this end of summer season is that drunk driving won’t be tolerated. If you drive drunk, we will be looking for you. If you’re over the limit and we catch you, you will be arrested.

On Friday evening, August 21, the Roseville Police Department will conduct a sobriety and driver’s license checkpoint at an undisclosed location.

Orange County is running a California DUI crackdown in an effort to curb drunk driving. The Orange County DUI crackdown will involve drunk driving enforcement operations in the form of DUI sobriety checkpoints and DUI saturation patrols that will begin Friday and run through Labor Day weekend.

The Orange County DUI crackdown will be funded by the California Office of Traffic Safety which is part of a nationwide effort that includes $13 million in advertisements.

The following is a partial list of scheduled DUI sobriety checkpoints and saturation patrols:

• Checkpoint – Friday, Aug. 28, 7 p.m.–3 a.m., Fullerton

• Checkpoint – Friday, Sept. 4, 7 p.m.–3 a.m., Dana Point

• Task force operation – Saturday, Sept. 5, 8 p.m.–2 a.m., La Habra

• Saturation patrols – Saturday, Aug. 29, 8 p.m.–3 a.m., County of Orange

• Checkpoint – Saturday, Aug. 29, 7 p.m.–3 a.m., Anaheim

• Checkpoint – Friday, Aug. 28, 7 p.m.–3 a.m., Irvine

• Saturation patrols – Saturday, Sept. 5, 8 p.m. – 3 a.m., County of Orange

• Saturation patrols – Sunday, Sept. 6, 8 p.m. – 3 a.m., County of Orange

• Saturation patrols – Friday, Aug. 21, through Monday, Sept. 7

All told, a total of 30 DUI sobriety checkpoints and saturation patrols will be conducted by law enforcement agencies during the Orange County DUI crackdown in the following cities: Brea, Buena Park, Cypress, Fountain Valley, Fullerton, Huntington Beach, La Habra, Los Alamitos, Newport Beach, Orange, Placentia, Seal Beach, and Westminster, and at UC Irvine and the Cal State Fullerton.

Sheriff's deputies will conduct a DUI and driver's license checkpoint Saturday in Vista, San Diego California DUI report and the time and location of the checkpoint was not disclosed.

The Norco Office of the Riverside County Sheriff’s Department will conduct a DUI/Driver’s License Safety checkpoint in Norco on August 22, 2009, from 7 p.m. to 3 a.m.

Marin, California police are planning DUI checkpoints the next 3 weekends leading up to the Labor Day holiday. The first checkpoint will be from 6 p.m. Friday to 2 a.m. Saturday in San Rafael, while the second take place from 6 p.m. Aug. 28 to 2 a.m. Aug. 29 in Sausalito. Police did not disclose the locations. A third checkpoint will be from 8 p.m. Sept. 4 to 1 a.m. Sept. 5 on Red Hill Avenue at Ancho Vista Avenue in San Anselmo.

Officers of the Chino Police Department will conduct two DUI / Drivers License Checkpoints: one on Friday, August 28 and the other on Wednesday, September 2.

If you need help by a criminal defense attorney specializing in California DUI cases, take this free Survey today.

Thursday, August 20, 2009

Quality assistance to cope with the unfortunate DUI pop in California

Who you gonna twit?! San Diego California DUI Lawyers twit the top San Diego California Drunk Driving Attorney for those unfortunately facing the potential cruelties of a San Diego California DUI: San Diego DUI Attorney Rick Mueller is a very experenced, "Superb" rated, Premier San Diego California Drunk Driving Lawyer, San Diego California DUI & San Diego California DMV Defense Attorney with over 25 years of experience. Recognized as the San Diego California DUI - DMV Guru, San Diego California DUI Lawyer Rick Mueller dedicates every minute of his San Diego DUI law practice to vigorously defending those accused of San Diego Drunk Driving, DUI or Driving Under the SuperbInfluence.



San Diego California Criminal Defense Attorney Rick Mueller recently spoke August 1, 2009 at Loyola Law School's annual DUI defense & strategy seminar in LA, and at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California. The California criminal defense lawyers who attended told the President of the California DUI Lawyers Association that San Diego California DUI criminal defense attorney Rick Mueller was fantastic. For help today, complete the Free San Diego California DUI Evaluation for your best San Diego California DUI defense attorney strategy and to vigorously protect your important driving privilege, as has been done for many good people who necessarily become San Diego California DUI Clients.

Online assistance orcontact a DUI Lawyer in San Diego California:

San Diego DUI Lawyer


California DUI Attorney


San Diego DUI Help

Wednesday, August 19, 2009

What about my "Miranda Rights?" Can Cops Use my Statements against me after a California DUI or will my attorney exclude those elicited statements?

California DUI criminal defense attorneys are often asked if the police can use the person's statements against the person even though the person was never advised of his or her Miranda Rights after a California drunk driving stop or arrest.

California DUI criminal defense lawyers need to file these objections at trial:

The defendant objects to the admission in this trial of any and all evidence related to his admissions supposedly made after he was seized but prior to being advised of her Miranda rights. Objection is especially made to the introduction of any statements made prior to the FST’s were sought to be administered.
The defendant was stopped for a moving violation. The police then and there had probable cause to arrest him for both offenses. VC 21658(a); VC 22356(b). Under recent Supreme Court teachings, those are both custodial offenses for purposes of arrest. Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354. After the stop, the police never told the defendant he was free to leave nor that he would not be arrested.
The defendant was grilled and tested.
The FST, pre-formal arrest, questions were asked per a pre-printed form presenting many detailed (not general) inquiries amounting to upwards of a dozen or more questions relating to drinking, eating, sleeping, etc. This is clearly an “interrogation” as defined in Rhode Island v. Innis (1980) 446 U.S. 291, 301. An interrogation is either express questioning or its functional equivalent that is reasonably likely to elicit an incriminating response. Id. See also People v. Underwood (1986) 181 Cal.App.3d 1223, 1231.
A person is in custody when as a suspect he is “deprived of his freedom of action in any significant way, or is led to believe, as a reasonable person, that he is so deprived.” People v. Arnold (1967) 66 Cal.2d 438, 448. The defendant here assuredly was, prior to the FSTs being administered; the Supreme Court has said so.
As has been noted, and which remains the law, when the police physically stop a person for the observed commission of a custodial crime, that person is thereby “arrested.” Henry v. United States (1959) 361 U.S. 98, 103 [“The prosecution conceded below, and adheres to the concession here, … that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.”] [emphasis added], Peters v. New York (1968) 392 U.S. 40, 67.

The police chased after the defendant and arrested him for a moving violation / infraction. The courts have laid out a number of factors to be considered on the question of Miranda custody. These include: focus of investigation, type of questioning, whether freedom of movement is deprived, whether the focus of the investigation is communicated to the detainee, how would the reasonable person in the suspect’s position have understood his situation, did the police communicate to the suspect that he was being investigated. See People v. Lopez (1985) 163 Cal.App.3d 602, 605-608. I hope no one thinks the defendant was free to leave in this drive-off-and-talk setting. As has been authoritatively noted, “The ultimate ‘in custody’ determination for Miranda purposes [involves] [t]wo discrete inquires [including] would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane (1995) 516 U.S. 99, 112. Here, the person was questioned at length about this incident. That is not the sort of conversation which temporary roadside questioning about the grounds for an infraction stop like a moving violation is made.

The People may, as usual, attempt to rely on Berkemer v. McCarty (1984) 468 U.S. 420, for the proposition that the disputed questioning of defendant in this case is allowable. However, a careful reading of that case does not support the view that the types of detailed questions asked of the defendant are admissible. In Berkemer only one question was asked after an officer had stopped a vehicle for weaving in and out of traffic, respondent was asked to get out of the car, the officer noticed respondent had difficulty standing, and could not perform FST’s without falling. The officer then asked the respondent if he had taken any intoxicants. The respondent replied that he had consumed two beers and smoked marijuana a short time before. The respondent was then arrested. The court held that the police may ask a “moderate” number of questions to obtain identity information and to try to obtain information confirming or dispelling the officer’s suspicions. Here, there were no suspicions to dispel, as to the moving violations; they spoke for themselves and supported arrest.
The Court there expressly noted that it was discussing the matter solely in terms of a “Terry stop,” and not where there was probable cause. Id., at pages 439-440. The Court further points out that the exception to Miranda it is there concocting is because “detention of a motorist pursuant to a traffic stop is presumptively temporary and brief.” Id, at page 437. Not anymore. Lago Vista has changed much of that, and citizens are presumed to know the law, R. Perkins and P. Boyce, The Criminal Law 1030 (3rd ed. 1982), and this federal peace officer assuredly does, and the law is that where there is probable cause for a traffic seizure, as here, the person stopped can now be placed in custody, even if the offense does not call for custody as a matter of punishment. Lago Vista, supra.
The detailed and accusatory and evidence-collecting questioning of the defendant in this case, did not serve any limited purpose. The questions were asked to obtain incriminating statements for use in the prosecution, and they are being so used.
The Berkemer court was also quick to point out that respondent’s contention that to exempt traffic stops from coverage of Miranda would open the way to widespread abuse; of course, misunderstanding/mischaracterizing what Berkemer held has caused widespread abuse to increasingly come to pass. The court was confident that it would not become the norm that policemen would delay formal arrest of detained motorists and subject them to sustained and intimidating interrogation at the initial detention. Of course, that has become the norm: prolonged, detailed police interrogation, pre-formal arrest, as in this case, is now standard and tutored police practice.
The presumptively limited nature of the traffic stop, from which all could reasonably be presumed to depart after citation, which animates the Berkemer exception to Miranda [Berkemer, supra @439-440], has now evaporated: people, all of whom are presumed to know the law in this Republic, now know that their supposedly protective Supreme Court has decreed that they can be shackled and trussed up like a Christmas goose for the most minor of offenses.
Therefore, they can never presume to go on their way from a traffic stop, and hence the time of the sort of custody dictating the right to Miranda advisals that still exist in a traffic stop [Berkemer, supra @440] commence at the git-go of the traffic detention. Dark clouds and silver linings and all that!
Miranda clearly applies here.
The standard by which the court must judge the admissibility of pre-Miranda admissions is set forth in the U.S. Supreme Court case of Pennsylvania v. Muniz (1990) 496 U.S. 582. In that case, the arresting officer asked the defendant during his “initial” investigation and “prior” to any Miranda rights being read to the Defendant, questions the court felt were not necessary for booking and of a possible incriminating nature. The Supreme Court held the officer had a right to “secure the biographical data necessary to complete the booking.”
The court, however, further concluded that the defendant’s admissions to non-routine booking questions are incriminating not only because of the manner in which they are delivered, but also because of the content. These included statements made during FST’s performed at the police station. Therefore, the admissions to those sorts of questions should be suppressed.
Of course, if those admissions are suppressed [as they must be], then the post-Miranda statements must also be such, because the initial violation taints the later grilling. See Missouri v. Seibert (2004) 542 U.S. 600, 616-617.

Captain Motion, Michael Kennedy, is a top California DUI criminal defense attorney who any citizen should strongly consider representing him or her if facing a drunk driving or other criminal arrest! He is the foremost California criminal defense lawyer expert at excluding improperly gathered evidence.

The public and the police need to know it's not right to violate one's Miranda Rights. The more people that become aware of this concept the better. "Get our country back" finally means something when we get the message out and it makes a difference in police tactics which often go unquestioned, self-perpetuating improper police techniques and methods.