Articles Posted in Defending DUI Cases

|

The walk-and-turn test (WAT) is one of the three tests in the battery of field sobriety tests (FST’s) that the National Highway Transportation Safety Administration (NHTSA) recommends law enforcement use to evaluate a suspect to determine if they are under the influence, thus establishing probable cause to arrest for drunk driving.

Both the WAT and the one-leg stand tests are considered “divided attention” tests, where a person’s attention is on both mental and physical tasks. The third test in the battery is called the horizontal gaze nystagmus test (HGN), which tests the subject’s jerking or bouncing of the eye.

The walk-and-turn test if often referred to as the “walk the line” test. The officer first instructs the subject on how to do the test and then the test is performed. The officer is to explain to the suspect that s/he is to walk nine steps, heal to toe, with their arms at their sides, without stopping, while watching their feet the entire time, counting the steps out loud. Then the person is to turn on one foot and face back in the direction where s/he was before, and then walk another nine steps, heal to toe back to the original location.

While this is being done, the officer is looking for eight clues of impairment: 1.) The subject cannot keep balance while listening to the instructions; 2.) Begins the test before the instructions are done being given; 3.) Once the walking begins, the subject stops to regain balance; 4.) Does not touch heal-to-toe; 5.) Steps off the line; 6.) Uses arms to balance; 7.) Makes an improper turn; and, 8.) Takes an incorrect number of steps.

If the person is unable to stay on the line and steps off three or more times, or they are in danger of falling, the test is stopped, and the person fails this test.

Each clue is graded as one point even if the same clue is observed more than once. According to Stuster & Burns, the 1998 NHTSA study, if two clues are found, there is a .79% chance the person’s blood alcohol concentration (BAC) is .08% or higher. This still means that 2 out of every 10 people who were determined to be impaired using this test did not actually have a BAC of .08% or greater.

There are many factors that can make this test unreliable and invalid. It must be done on a level, hard, non-slip surface. The person should not be elderly, obese, frail, or suffering from a physical or mental disability. If the subject’s shoes have a 2″ or greater heal, they should be given the option to remove their shoes. In addition, there should not be any other distractions such as passing cars and the officer conducting the test should be still after giving the instructions.

If you have been arrested and charged with misdemeanor driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm to vigorously defend your case. Each case is fact specific, and there may be defenses in your case that can lead to reduced charges with less punishment or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

Continue reading ›

|

The National Highway Transportation Safety Administration, (NHTSA), has come up with three standardized tests that law enforcement uses in their drunk driving investigations to help determine if a suspect is under the influence. The three field sobriety tests, (FST’s), are the horizontal gaze nystagmus, (HGN), the walk-and-turn, and the one-leg stand. These together are called the FST battery. Officers use these and other non-standardized tests when conducting DUI investigations.

The one-leg stand test is considered a divided attention test because the subject has to focus on mental and physical tasks at the same time. It should be done on a hard, dry, non-slippery surface that is level. In addition, there should be adequate lighting.

At first the officer is supposed to give the subject instructions and demonstrate how to do the test. Then they ask the person if they understood the instructions and the subject performs the test. The subject is to stand with their heals together with their arms down by their side. Then the officer instructs the person to raise their leg six inches from the ground and while watching their raised foot, they are to count from 1001 to 1030. (See video demonstration.)

The test is performed while the officer looks for four clues. The clues are: 1.) The subject sways while balancing; 2.) Uses their arms for balance; 3.) They hop; and, 4.) They put their foot down. The officer gives one point for each clue seen during the test. Two or more points indicate the subject has a blood-alcohol level above .08. If the person puts their foot down three or more times within the 30-second test, it is considered a failure of this FST.

This test, when conducted using the NHTSA’s guidelines, has been determined in a 1981 study to be only 65% accurate in determining if a person’s BAC is above .10%. The studies were done again in 1998, using the .08 standard, and NHTSA claimed that the test is now 83% accurate in determining if a person’s BAC is at or above .08%. Still, this means about 2 out of every 10 people who were determined to have two or more clues were actually under the .08% standard.

A skilled San Diego drunk driving attorney can pick apart how the officer conducted the one-leg stand test, exposing flaws in the instructions, the demonstration, and how it was graded. If you have been arrested for DUI, do not just plead guilty! There may be defenses in your case that lead to reduced charges or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

Continue reading ›

|

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to aid in drunk driving investigations. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The HGN test was previously discussed in “Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations.”)

Law enforcement is supposed to administer the HGN test using the guidelines that NHTSA has laid out to ensure the results are valid and reliable. Cops look for six clues, three in each eye. If four clues are found, the officer can determine that the subject’s blood-alcohol content is at or above a .10%.

There are many problems with the HGN test and how it is used by law enforcement to determine if someone is under the influence when conducting a DUI investigation. First off, many people have a natural nystagmus. Prior to the encounter in question between the cop and the suspect, the degree of the natural jerk or bounce in the eye is not known. Therefore, the officer cannot accurately correlate this to impairment.

Another issue is that many drunk driving investigations are done at night, on the side of the road with minimal lighting, with cars passing, and with the cop’s flashing lights on. This is an issue because lighting can affect the results of the test.

However, the biggest and most concerning issue with the HGN test comes from the 1983 NHTSA study that was conducted to prove that HGN and blood-alcohol content are related. NHTSA actually funded this study with the hopes of proving their hypothesis that the HGN test was valid and reliable. This presents a conflict of interest and is a biased study. According to ordinary scientific principles, an independent study by an unbiased group should have funded and conducted the research.

Additionally as alarming, the study found that the HGN test was 77% accurate in detecting whether a person’s blood-alcohol content, or BAC, was .10 or higher. This means that the findings actually proved that almost 1 in 4 people who law enforcement deemed to have a BAC of .10% or higher was in fact under the .10 standard!

So, assuming the officer conducts the test correctly using the NHTSA’s guidelines, the subject does not have a natural nystagmus, and the test is performed with proper lighting, according to the study, almost 1 out of every 4 people tested would be found to be under a .10% BAC. (Note: There has not been a study done using the current legal limit of .08%.) With such issues, this evidence should never come into a criminal courtroom to prove a person was under the influence for purposes of driving a motor vehicle…but it does.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

Continue reading ›

|

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to determine if someone is under the influence. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The two others are the walk-and-turn test and the one-leg-stand test.)

Nystagmus is the involuntary jerking or bouncing of the eyeball. HGN is the horizontal bouncing when the eye gazes to the side. As a person drinks alcoholic beverages or consumes central nervous system depressants, the brain loses its ability to control the eye muscles, causing the jerking or bouncing. The greater the impairment, the greater this involuntary movement.

Before the test begins, the officer should have the subject remove their glasses and inquire if the person is wearing contacts. They should be faced away from any blinking lights including the officers flashing lights and passing cars.

The subject is then asked to follow an object that is 12-15 inches from their eyes and slightly higher than eye level, without moving their head. The officer should then check for equal tracking and equal pupil size. This is done by having the subject quickly follow an object through their field of vision. Lack of equal tracking or pupil size can indicate an injury or a medical issue and the test should be discontinued.

The test is then administered and three clues for each eye is checked, for a total of six possible clues. If four or more clues are found, the officer can determine that the subject’s BAC is at or above a .10.

The first is lack of smooth pursuit. The officer starts at the middle of the subject’s face and moves the object towards their left ear. The test is then done on the right eye. The eye being tested should follow the object smoothly. If nystagmus is observed in either eye, the officer notes that as a clue.

Then the officer checks for distinct nystagmus at maximum deviation. Again, the officer starts at the center of the subject’s face, moving the object toward the left ear. However, this time, the object is brought as far as the eye can go, holding it there for at least 4 seconds. Then the test is repeated on the right side. If nystagmus is observed in either eye, the officer notes that as a clue.

The last is angle of onset of nystagmus prior to 45 degrees. For this test, the officer again starts at the center of the subject’s face, moving the object towards the left shoulder at a speed that would take approximately four seconds. It is estimated that the edge of the shoulder is 45 degrees from the center of the subject’s face. The officer notes a clue if nystagmus is seen prior to reaching 45 degrees. This is repeated on the right eye.

There are many problems with the HGN test and how it is used by law enforcement as part of their investigation to determine if someone is under the influence when conducting a DUI investigation. Those issues will be addressed in another future driving under the influence blog article.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

Continue reading ›

|

Field sobriety tests, or FST’s, are exercises, that are used by law enforcement to help determine if a person is under the influence of alcohol and/or drugs. If a person performs poorly on the tests, they may be arrested and charged with drunk driving. Prosecutors then use the results of the FST’s to decide what charges to file and they will present FST evidence in court to prove their case.

There are only three tests that have been deemed reliable in determining if someone is under the influence. These tests are called the “standardized field sobriety tests.” They are the horizontal gaze nystagmus test (HGN), the walk and turn test, and the one-leg stand test. However, cops often use other non-standardized tests when conducting DUI investigations, including the finger-to-nose test, the Rhomberg balance test, and the finger count test.

According to the National Highway Transportation Safety Administration (NHTSA), there is a correlation between poor performance on the standardized FST’s and impairment for purposes of driving. They have published proper test protocols for law enforcement to determine if someone is under the influence. However, these tests are unreliable.

Often they are conducted using improper procedures and the clues are not assessed correctly, as they are often subjective. The instructions may be given erroneously or the person may not have understood them.

Even when the FST’s are administered properly, their reliability is questionable. There are many other factors that can make the test results inaccurate. For instance, a person may have a physical or mental impairment that makes his/her ability to perform a test difficult. There may be environmental issues that invalidate the test, such as inappropriate lighting, an uneven surface, or other distractions. In addition, the suspect’s “normal performance” or baseline for any of these tests is not known so there is no way to gauge performance on this occasion to determine if the person is under the influence.

If you have been arrested for drunk driving, and you have questions about the field sobriety tests that you performed and how they may impact your matter, contact The Law Offices of Susan L. Hartman today.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

Continue reading ›

|

San Diego is quickly becoming the craft brew capital of the world. Sandiego.org has dubbed San Diego the “Napa of beer” because of the number of craft breweries in the county. Many local tasting rooms, brew pubs and restaurants are now listing on their menus the beer style, the size of the glass each beer is served in, and the ABV, (alcohol by volume).

Why is the ABV important? The ABV is the measurement of the amount of alcohol within the total volume of liquid, or the strength or potency of the beer. The amount of alcohol in the beer plus the size of the glass will depend on how quickly you will feel intoxicated and be under the influence for purposes of driving.

The guidelines for drinking and driving use a standard formula for one 12-ounce beer averaging 5% ABV. Most large beer makers, such as Budweiser and Coors, use 12-ounce bottles and their ABV usually ranges from 4 to 6%.

If you drink a 12-ounce beer that is 7.5% ABV, that is 1 1/2 times that of the 5% ABV beer. If you have a pint of beer that is 16-ounces, that is 1/3 more beer than a standard serving. If you drink a beer with a higher ABV or is poured into a larger glass, your blood-alcohol content, (BAC), will increase at a rate higher than the standard guidelines. And, if you are arrested by law enforcement for DUI, you can expect your BAC will be higher than if you had a standard size beer with a standard amount of alcohol.

Keep in mind that the drinking guidelines are just that, guidelines. Many things factor into whether or not you will be under the influence such as your sex, weight, if, when and/or what you ate, some medical conditions, among others.

The best way to avoid a drunk driving arrest is simply not drink alcoholic beverages and drive. There are many alternatives to taking this risk while still enjoying your beer or other cocktail: Use Car2Go to the location and take a cab home; Take a cab in both directions and to make it cheaper, split it with friends; Use public transportation; Designate a sober driver; Or, stay where the party is until you are sober.

If you are out enjoying San Diego’s craft brews and you happen to be pulled over and arrested for drunk driving, you owe it to yourself to hire a criminal defense attorney that handles DUI matters.

(Note: Some breweries use ABW, (alcohol by weight), instead of ABV. Alcohol measured by weight instead of volume will actually be stronger. To convert the ABW to ABV, multiply the ABW by 1.25.)

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

Continue reading ›

|

California has an “implied consent” rule regarding chemical testing that is found in Vehicle Code Section 23612. This vehicle code section states, “Any 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 purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

When a person is arrested for drunk driving, they are given a choice between a blood or breath test. If a person refuses to give either sample, The Department of Motor Vehicles (DMV) will suspend or revoke a person’s driving privileges pursuant to California Vehicle Code Section 13352. The period of that suspension or revocation is at least one year.

In addition to the repercussions in the administrative DMV phase of a DUI case for a refusal, there are also increased penalties in the criminal court process.

Law enforcement cannot obtain a person’s blood without consent unless they have a warrant to do so. Failure to have a warrant constitutes a Fourth Amendment violation. Regardless, San Diego and other California law enforcement agencies have been forcibly taking blood from drivers without a warrant, citing the landmark case from 1966, Schmerber v. California. In that case, the court held police can, without a warrant, forcibly obtain a person’s blood for the purpose of chemical testing to determine intoxication after a lawful arrest if the sample is taken in a reasonable, medically approved manner, there is a reasonable belief that the person is intoxicated, and there is a need for prompt testing because the person’s blood alcohol is diminishing.

However, in April 2013, the United States Supreme Court ruled on this issue in Missouri v. McNeely. In this case, the Court ruled that a warrantless search of a person is reasonable only if it falls within an exception. The Court did not find any exceptions for exigency existed just because blood alcohol evidence is inherently evanescent.

Although the Court did not create a per se rule, it did state, “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The opinion also commented how much more expeditiously warrant processing is 47 years after Schmerber, and that exigency is determined on a case-by-case basis.

Since no bright line rule was created in this opinion regarding when the police can forcibly take blood from someone who was lawfully arrested, suspected of drunk driving, this issue will remain one that is heavily litigated.

If you have had a forced blood draw without a warrant, contact a criminal defense attorney who specifically handles driving under the influence cases. If there is a valid argument that your constitutional rights have been violated, a motion to suppress this evidence may be filed and ultimately, the prosecutor may not be able to use the results against you in court.

Continue reading ›

|

If you are arrested for driving under the influence in San Diego County, you may wonder about your options to represent yourself, ask for a public defender, or hire your own counsel. (In a past blog, “Should I hire A San Diego Drunk Driving Attorney To Handle My DUI?” these options are discuss more thoroughly.) It is highly recommended that you have a criminal defense lawyer represent your interests for any criminal matter because of the distinct advantages that are discussed below.

Many DUI defendants have never been in trouble with the law or arrested before. Often, they are confused about the process and do not understand the interaction between the DMV portion of the case and the criminal court process. A DUI defense attorney can help you navigate the system, explain the steps and procedures and help you make informed decisions about your case. This assistance makes the entire process less stressful.

Most misdemeanor drunk driving cases can be handled by a criminal defense attorney without the client being present at the DMV APS Hearing and for all court dates including the arraignment, readiness and motion hearings. (Note, it is not advisable to conduct a jury trial without the defendant’s presence.) This means the client does not miss valuable time at work. Often hearings that should take less than an hour actually require a lot more time due to the busyness of the DMV and Superior Court’s calendar.

Another advantage of hiring a criminal defense attorney that specifically handles driving under the influence cases, is the attorney will request and review the discovery. The discovery is the government’s proof that you committed a crime. Upon the review, the attorney will be able to evaluate the strengths and weaknesses of the State’s case. The attorney can also consult with investigators and experts to see if your case can be strengthened. Once all the facts of your case are known, the DUI attorney can advise you on whether you should accept the prosecutor’s offer, file motions to dispute an issue with the evidence, or take the case to trial.

The criminal defense lawyer is trained on researching, preparing and conducting hearings, motions and trials. In addition, the lawyer can negotiate with the prosecutor to make sure you are getting the best deal possible considering the specific facts of your DUI case. A skilled DUI attorney who handles matters in San Diego is also familiar with the standard offers given in San Diego County courthouses and what judges and the prosecutors are likely to accept in exchange for a guilty plea.

Lastly, the drunk driving lawyer will educate you on process, go through all your options, and weigh the potential costs and benefits of each option; ultimately, helping you make clear decisions on how to proceed with your case.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving lawyer in your area.

Continue reading ›

|

cop arrest.jpgSan Diego Police Sergeant John Iammarino, Detective Daniel Caropreso, Sergeant William Brown, and Sergeant Christopher Tivanian are all assigned to desk duty as the San Diego City Attorney’s Office investigates their involvement in a drunk driving incident involving SDPD Detective Jeffrey Blackford, according to San Diego’s 10news.com.

Allegedly, on December 6th, 2012, off-duty officers of SDPD were out drinking. Before 1:00am, on December 7th, Detective Blackford drove off then spun out and hit a utility box. Within a short period of time, off-duty officers, Sergeant Iammarino and Detective Caropreso, came to save the day. Unlucky for the officers, there was video surveillance of their arrival on scene which provided a timeline to what happened, or didn’t happen, next.

It was not until about 2:15am that on-duty officers were called and Sergeant Brown and Sergeant Tivanian responded. The four officers waited until approximately 3:59am to give Blackford a preliminary alcohol screening (PAS) test at the scene. It is surprising that the officers conducted this test at all, since they should be well aware that this test is considered a field sobriety test and it is not required for people over 21 and not on DUI probation. The results of the PAS test were not reported.

What did these officers do from before 1:00am until just about 4:00am? Why the delay? You would expect a quick response after an officer involved car accident, wouldn’t you? There is an obvious answer rooted in California’s driving under the influence laws, and you know the San Diego Police officers are well aware of the three hour presumption in California Vehicle Code (VC) Section 23610.

Under the drunk driving statutes in the California Vehicle Code, in order for the defendant to be found guilty, the prosecutor must prove that the defendant was driving a vehicle and while driving the person was under the influence of an alcoholic beverage, a drug, or a combination of both. In addition, there are rebuttal presumptions regarding being under the influence. VC Section 23610(3) states: “If there was at the time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of driving.” VC Section 23152(b) states the rebuttable presumption applies if the chemical test was conducted within three hours of driving.

It seems very apparent that the officers were trying to get their fellow officer outside the presumption window before subjecting him to the PAS test and the subsequent arrest in hopes that he would either be below the legal limit of a .08% BAC and they would not to arrest him for DUI, or he would be able to rebut the presumption that he was under the influence at the time that he was actually driving.

The San Diego City Attorney has filed documents to obtain the internal investigation documents from the SDPD. The Law Offices of Susan L. Hartman will continue to follow this story to see exactly what happened on the night in question.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

Continue reading ›

|

In California, it is illegal for anyone under the age of 21 to consume alcohol. Further, anyone under the legal limit must be alcohol-free when driving. This is codified in California Vehicle Code Section 23136, the Zero Tolerance Law, which states, “[I]t is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle.”

The Zero Tolerance Law is a civil offense and is handled through the DMV. Any underage driver who is detained or arrested for drunk driving is required to submit to a preliminary alcohol screening test (PAS) or other chemical test. If the driver refuses or fails to complete the test or the blood-alcohol content (BAC) is .01% or more, the DMV will suspend or revoke the youth’s driver’s license.

If the under 21 year old driver took the PAS or other chemical test and the results were .01% or higher, their driver’s license suspension is one year. If the driver refused or failed to complete the test, the license suspension is one year for the first offense, revoked for two years for the second offense within 10 years, and revoked for three years for three or more offenses within 10 years.

The Suspension/Revocation Order and Temporary Driver License will allow the driver to continue to drive with the same privileges and restrictions as they had under their driver’s license for a period of 30 days from the date it was issued. After that 30-day period, the driver’s license is automatically suspended or revoked unless within 10 days after the date of detention or arrest the DMV is contacted to request a hearing to challenge the suspension or revocation. You may hire a San Diego criminal defense attorney to represent you and your interests at the DMV hearing. If you prevail at the hearing, the suspension or revocation will be set aside and your driving privileges are restored in full.

On the first offense, if the suspension or revocation is not challenged or if you do not prevail after the DMV hearing, but the driver completed a chemical test, the driver may apply for a critical need restriction after the 30-day suspension, under CVC 12513, 13353.8. This will only be granted if the driver can show a critical need to drive and that other transportation options are inadequate.

California Vehicle Code (CVC) Section 23136 does not preclude further criminal prosecution under the other driving under the influence statutes including CVC Section 23152 and 23153, which are wobblers, meaning they can be charged as a misdemeanor or felony. In addition, there is another CVC section that specifically deals with under 21 drivers, CVC Section 23140. Under this section, is it an infraction for anyone under 21 years old to drive with a blood-alcohol content of .05 — .07%.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

Continue reading ›

Contact Information
8880 Rio San Diego Dr
Suite 800, PMB 846
San Diego, CA 92108
Phone: (619) 260-1122Fax: (619) 756-7033

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2014 – 2024, The Law Offices of Susan L. Hartman
JUSTIA Law Firm Blog Design