DUI BLOG

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

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

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

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

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

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

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

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

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

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

Of all the questions I get about what to do and what not to do during a California DUI stop, the question about whether a person has to give a breath sample after a DUI stop is among the most common of the questions.

Strangely enough, the answer is both “yes” and “no” depending on which breath sample we’re talking about.

When law enforcement pulls someone over, chances are they already think the person is driving under the influence. However, in order to arrest them for a California DUI, law enforcement needs probable cause. This means that the officers must have facts that would lead a reasonable person to believe that the person is driving drunk. In other words, the officers cannot just arrest someone on the hunch that the person is driving while under the influence. They need facts to suggest that the person is actually driving drunk.

The officers get the probable cause, or facts, through their own observations and when the driver performs and fails the field sobriety tests. In addition to the field sobriety tests that people typically think of, there is the preliminary screening alcohol (PAS) test. This is a roadside breathalyzer that is also considered a field sobriety test. And like the other field sobriety tests, the PAS test is optional. If the PAS test shows that a person has alcohol in their system, then the officers have the facts that would suggest that the person is driving under the influence.  

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The officer who makes the stop, by law, must advise the person that the PAS test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If the PAS test detects alcohol in the person’s system, they’ll likely be arrested for a DUI. Once the person is arrested, they must take a chemical test which can either be a breath or a blood test according to California’s Implied Consent Law.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you’re licensed to drive in California, you have impliedly consented to give either a breath or a blood sample when you are lawfully arrested on suspicion of a California DUI.

The key word here is “lawfully” arrested. If the officer did not observe any poor driving and the person does not perform any field sobriety tests including the PAS test, the officer may not have the probable cause to arrest the person. And if the officer does not have probable cause that the person is driving under the influence, yet they arrest the person anyways, the arrest is no longer lawful.  

When an arrest is unlawful, all evidence obtained after that arrest, including the results of the chemical test are inadmissible.

As you can see, it can be rather complicated. So simply put, you do not have to take the pre-arrest breathalyzer called the PAS test, but you do have to take a post-arrest chemical test which could include a breathalyzer.

Stephen Miller, 40, of Pennsylvania was arrested and charged early last month with two counts of driving under the influence, two counts of endangering the welfare of children and various traffic citations. Miller championed Pennsylvania’s “Kevin’s Law,” the name of which honored his son who was killed by a hit-and-run driver suspected of drunk driving. The law increased the penalties for hit-and-run drivers in fatal accidents.

Miller’s son, Kevin, was killed in 2012 after being hit by a driver who fled the scene. It was suspected that the driver, Thomas W. Letteer Jr., 26, was driving under the influence at the time, however never faced charges of DUI because he was not caught until much later.

On June 12^th, Miller was stopped because law enforcement spotted his vehicle traveling at night without headlights and unlit tail lights. At the time of the stop, Miller had this two other children in the vehicle, one of which was Kevin’s twin. It was later determined that Miller’s blood alcohol content was more than three times the legal limit at 0.27 percent.

Miller is set to appear on August 17^th.

In addition to the penalties for the DUI, Miller is facing 100 hours of mandatory community service and a fine of at least $1,000 under Pennsylvania law.

California, on the other hand, is not as forgiving.

In California, if you are charged with a DUI under California Vehicle Code section 23152 and at the time of driving, you have a minor under the age of 14, you also face an enhancement to the DUI charge under California Vehicle Code section 23572.

In addition to any penalties given for a DUI conviction, if the enhancement is found to be true, the person faces an additional and consecutive 48 hours in a county jail for a first DUI conviction, 10 days for a second DUI conviction, 30 days for a third DUI conviction, or 90 days for a fourth or subsequent misdemeanor DUI conviction.

For other reasons, I’ve said that it is extremely important to hire an experienced California DUI when facing criminal charges. The same absolutely holds true for a California DUI charge with a child endangerment enhancement.

If an experienced California DUI attorney can successfully defend against the underlying DUI charge, the child endangerment enhancement cannot stick nor can a person be punished under it. This is true if the underlying California DUI charge is found to be untrue by a jury after a trial, the charges dismissed, or if the charge is reduced to what is known as a “California wet reckless.”

It should also be noted that drunk drivers who have children in the vehicle at the time of driving can also be charged under California Penal Code section 273(a), otherwise known as California’s child endangerment law. Child endangerment can be charged as either a felony or a misdemeanor when a person places a child under the age of 18 in a situation where his or her heath or welfare can be endangered. If charged with child endangerment, a person faces up to a year in county jail for a misdemeanor and up to six years in a California state prison for a felony.

If a person is convicted of a DUI and child endangerment under California Penal Code section 273(a), they, however, cannot face the DUI enhancement under California Vehicle Code section 23572.

Field sobriety tests and DUI stops go hand in hand. In fact, field sobriety tests are the things that my clients most closely associate with a DUI stop. Yet, very few people know that they are optional. Because most people mistakenly believe that they are mandatory, they take them and “fail” even though they may not even be under the influence.

So how does a person fail the field sobriety tests while without even being under the influence?

Law enforcement agencies in California and throughout the country use a number of field sobriety tests to gauge a person’s coordination, balance, and simple motor skills. The National Highway Traffic Safety Administration has approved three field sobriety tests as “standardized.” These test include the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test. However, police officers also use non-approved field sobriety tests to gather the probable cause necessary to make a DUI arrest. Those tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Although field sobriety tests are intended to gauge a person’s coordination, balance, and simple motor skills after having consumed alcohol, standardized or not, field sobriety test can be unreliable for a number of reasons.

Tiredness:

We all know that driving tired is dangerous. However, while it may be dangerous, it is not illegal. When a person is tired, they exhibit many of the same symptoms of intoxication. Poor coordination, lack of balance, and trouble with motor skills are symptoms of both tiredness and intoxication. Whether the symptoms come from tiredness or intoxication, they can cause a person to fail field sobriety tests. What’s worse is that when a person is tired, they also display other symptoms of intoxication that officers often look for during a DUI stop; bloodshot water eyes and slurred speech.

Physical Problems:

Many people experience physical problems or disabilities which may affect how a person performs on field sobriety tests. Problems such as knee or back pain would make it difficult to perform the physical requirements of field sobriety tests.

People who are older or over weight, may have trouble performing the field sobriety tests for the same reasons.

Balance Problems:

Many times people are suspected of driving drunk following a vehicle collision and are often given field sobriety tests shortly after the collision. Poor performance on the field sobriety tests is attributed to intoxication rather than the after-effects of a vehicle collision.

Without even knowing it, many people suffer from inner ear problems. The inner ear contains a small organ called the labyrinth that helps people maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.

Nervousness:

Have you ever been pulled over? We you nervous? My guess is that you answered yes to both questions. It goes without saying that people are nervous and stressed when they get pulled over. When people are nervous and stressed, they have difficulty concentrating. Unfortunately, concentration is a key component in completing the field sobriety tests. Officers will “fail” a person if they cannot follow instructions in performing the field sobriety tests even though it was due to a lack of concentration, not intoxication.

Officer Interpretation:

Much of the time, officers have already made up their minds that a person is driving under the influence when they make the DUI stop. This pre-conceived notion in conjunction with a psychological phenomenon called the “confirmation bias” causes the officer to interpret field sobriety test performance as “failing” regardless of how the person actually performs.

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

…except when the suspect is a district attorney.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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