San Diego DUI Lawyers Blog

California Court of Appeal Rules Evidence of a Refusal to Submit to a PAS Test is Not Admissible.

November 22, 2010 | The Law Offices of Susan L. Hartman

pas.officer.jpg The California Court of Appeal ruled in People v. Jackson that the trial court incorrectly allowed evidence in at trial that the defendant refused to take a preliminary alcohol screening test (PAS).

Defendant was arrested and was subsequently on trial for driving under the influence, DUI, in violation of Vehicle Code Section 23152 (a) & (b) . An officer was allowed to testify that the defendant refused to take the PAS test, even though he did agree to perform all the other field sobriety tests (FST’s).

After a conviction, the defendant appealed, claiming that the officer’s statements about his refusal should not have been admitted. The defendant cited Vehicle Code Section 23612(i), which states, “If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.”

In the appeal, the Respondent claimed that the trial court correctly admitted the evidence because the PAS test is simply another FST. When the defendant refused to submit a sample, he was demonstrating consciousness of guilt.

The Court of Appeal agreed with the Appellant “because it is logically consistent with the clear intent of the statute [VC 23612] and serves to protect the statutory right defined therein.” However, in this case, it was found to be harmless error and the Appellant’s conviction stood.

Vista Teen Apologizes For Oceanside DUI Accident that Injured Two

November 17, 2010 | The Law Offices of Susan L. Hartman

A Vista teen admitted he was driving while under the influence (DUI) of alcohol on October 18th, when the car he was driving struck a grandfather and toddler in Oceanside. The teen’s blood alcohol content (BAC) was reported by 10news.com as .21.

California has a Zero Tolerance Law that applies to all drivers under the age of 21. This means that it is illegal for anyone under 21 to have a BAC over .01, and on your first offense your driving privilege will be suspended for one year. Further, refusing to take or failing to complete the preliminary alcohol screening (PAS) test will also result in a one year license suspension.

According to the California Department of Alcohol and Drug Programs, the proportion of under age DUI arrests increased from 7.7% in 1996 to 9.4% in 2006. Less than 1% of all DUI arrests involved juveniles under the age of 18. In this case, the teen was only 17 when the accident occurred.

(“San Diego Under Age Youth Sentenced for DUI Injury Accident” is the follow-up to this story and was posted on November 30th.)

California’s Sobriety Checkpoint/Roadblock Criteria (Part II)

November 8, 2010 | The Law Offices of Susan L. Hartman

checkpoint sign.jpg The California Supreme Court set forth criteria for DUI checkpoints to ensure they are in compliance with the Federal and California’s State Constitution and to minimalize the intrusiveness of the stop in Ingersoll v. Palmer. The following is the last four of the ambiguous guidelines.

5. Time and duration. The time of day and how long the DUI checkpoint lasts bears on the intrusiveness to the motorist. Law enforcement is expected to use good judgment in setting the times and duration, considering effectiveness and safety.

6. Indicia of official nature of roadblock. The roadblock should be highly visible with warning signs, flashing lights, adequate lighting, and official police vehicles and officers in uniform.

7. Length and nature of detention. Motorists should be detained for a minimum amount of time. This brief encounter should allow the officer to question the driver to look for signs of intoxication. If there are signs of impairment, the driver can be asked to move to another area for sobriety tests. This has to be based on probable cause and principles of detention and arrest would apply.

8. Advance publicity. This was a requirement, but as of People v. Banks advanced publicity is just another factor to be considered.

The foregoing criteria are just guidelines. If law enforcement fails in one or more of these areas, the checkpoint is not automatically deemed illegal or unconstitutional. A skilled attorney may argue to the court such failure rises to the level of a constitutional violation. If this motion is won, your DUI case may be reduced or even dismissed.

Part I was posted on November 1st, 2010.

California’s Sobriety Checkpoint/Roadblock Criteria (Part I)

November 1, 2010 | The Law Offices of Susan L. Hartman

checkpoint sign.jpg Sobriety checkpoints or roadblocks were found to not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures in Michigan Department of State Police v. Sitz (1990).

The California Supreme Court set forth criteria for checkpoints to ensure they are in compliance with the Federal and California’s State Constitution in Ingersoll v. Palmer (1987). However, the court did not require all the factors be present for the checkpoint to be deemed constitutional.

The California Court decided driving under the influence (DUI) checkpoints should function as a deterrence and not solely to increase the number of DUI arrests. In this opinion, the Court explained the ambiguous guidelines law enforcement must use to minimalize the intrusiveness of the stop.

1. Decisionmaking at the supervisory level. The decision to conduct the DUI checkpoint, the location of the site, and the operation procedures are to be established by supervisory law enforcement not field officers.

2. Limits on discretion of field officers. There must be a neutral formula to determine which cars are to be stopped. This is not to be left in the discretion of the field officers.

3. Maintenance of safety conditions. This is done by employing proper lighting, signs and signals, and having clearly identifiable official vehicles and personnel.

4. Reasonable location. The location should be determined by policy-making officials not field officers. The site should be one that has a high rate of alcohol related accidents and arrests. Safety should also be considered when choosing the location.

The last four criteria will be discussed in another future posting, “California’s Sobriety Checkpoint/Roadblock Criteria (Part II).”