DUI BLOG

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The short version of this article is this: A pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample and provided that the arrest was lawful.

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

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

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

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

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

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

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

You may remember my previous complaints about law enforcement taking DUI suspects out of the view of the dash-cam to conduct field sobriety tests. In their police report, officers claim that suspects “fail” the field sobriety tests without an explanation as to how the suspect “failed.” As was the case with the supposed bloodshot watery eyes and slurred speech, people are often cleared of DUI charges notwithstanding a police report alleging that they “failed” field sobriety tests. Footage from body cameras can confirm whether the suspect actually “failed” the field sobriety test, thus confirming credibility of the police report or exposing its flaws.

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

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

As I've repeatedly written on this blog, DUI can be an extremely subjective offense.  Although there may be a breathalyzer or blood alcohol test involved — and these are inherently unreliable — much if not most of the "evidence" depends upon the arresting officer's testimony: driving symptoms, physical appearance, slurred speech, red eyes, impaired coordination and judgment, poor performance on "field sobriety tests", incriminating statements, etc.  All of these depend upon the cop's perceptions, expertise…and honesty.   

So what happens when a cop smashes into another car, causing an accident so violent that the other driver's neck is broken?  Simple:  arrest her for drunk driving.

Sober Driver Arrested for OWI When Deputy Crashes Into Her Car

Milwaukee, WI.  May 3 – A Milwaukee County Sheriff’s Deputy rolls through a stop sign and causes a violent crash. So why was the victim placed under arrest?

A FOX6 Investigation finds that a deputy’s changing story may have changed one woman’s life forever.

Tanya Weyker was hurt so badly, she couldn’t blow into a breath-testing device or perform field sobriety tests.  But a Sheriff’s deputy arrested her for drunk driving anyway.  And the County hung those charges over her head for nearly a year, even long after blood tests proved she was perfectly sober.

Tanya Weyker remembers it clearly. Not just the crash that broke her neck in four places, but the false accusations that followed.

“My reputation is everything to me,” she said.

At the age of 25, Weyker’s criminal history is as flawless as her posture. She was diagnosed with cancer at age three, and the prolonged radiation treatments literally curved her spine. So doctors inserted metal rods to keep her back straight.  The lifelong medical complications have not stopped her from pursuing a college degree. Or from driving a car. In fact, Weyker had never gotten so much as a speeding ticket until the night she crossed paths with Milwaukee County Deputy Sheriff Joseph Quiles.

It was February 20th, 2013, and Deputy Quiles was working the night shift on patrol at General Mitchell International Airport.

As he pulled out onto Howell Avenue to make his rounds, he T-boned a passing car and sent it spinning into a tree.

“Very scary,” Weyker recalls.

Her spine was already fused with steel. Now, she had a fractured neck to go with it.

“It was a miracle I wasn’t paralyzed,” she said.

As rescue workers tended to Weyker, police and Sheriff’s deputies started asking questions.

“One asked if I had anything to drink that night,” she said. “And I told them a few sips from a friend’s drink.”

A deputy noted a light odor of alcohol on her breath. He said her speech was slurred. And her eyes looked red and glassy.

“I explained to him my eyes were red and glassy because I was crying,” she said….

In his official report, Deputy Quiles wrote that he stopped at the stop sign and looked both ways before pulling out.  He told a Milwaukee police officer that he never saw any headlights, even though Weyker’s Camry had lights that come on automatically.

“I knew I was innocent this whole time,” Weyker declared.

The truth might never have surfaced were it not for video from a nearby airport surveillance camera. It shows what investigators say is Deputy Quiles’ squad car traveling west on Hutsteiner Avenue, then continuing onto Howell without making a complete stop, as Quiles claimed in his report. The Sheriff’s Office knew about the video just two days after the crash.  But no one told Weyker.

Instead, the County sent letters blaming her for the crash and threatening legal action if she didn’t pay for the damage.

Of course, if Weyker was drunk, it would have been easy to pin the blame on her. But less than a month after the crash, test results showed she had no alcohol in her system. And by July, her drug test came back negative too. Five months after the crash, it was clear Weyker had been stone cold sober.

But still the case didn’t go away.

“I don’t think it is fair at all,” Weyker said.

Five more months passed before a prosecutor finally looked at the case and declined to file charges. But even then, Weyker says, she was left in the dark.

“No one called me.”…

So…an isolated incident, right?  Think again.  The only thing that distinguishes this case from thousands like it across the country is the fact that Deputy Qiles caught two bad breaks:

1.  His "drunk driving investigation" was recorded by a nearby surveillance camera.  What are the odds of this happening in any other DUI case?

2.  In most cases where a cop doesn't want a breath test contradicting his "evidence", he simply writes in his arrest report the magic words:  "Suspect was asked to submit to a breath test but refused."  It's that simple.  In this case that wasn't necessary: the suspect was physically unable to give a breath sample.  What Deputy Qiles didn't realize, however, was that the hospital treating Ms. Weyker would in the normal course of treatment take a blood test — and that the hospital lab would find that there was no trace of alcohol.

Absent these very fortuitous events, Ms. Weyker would have been prosecuted for DUI.  And who do you think a jury would believe?  The sworn testimony of an experienced and impartial police officer?  Or that of an accused drunk driver?  

If it were not for these two lucky breaks, Ms. Weyker would have been convicted, punished and branded with "drunk driver" for the rest of her life.  

And it happens all the time…