Legal Defenses against a DUI arrest
and Admin Per Se Drivers License Suspension
By San Jose California DUI Attorney Randy Moore
| * Illegal Stop, Detention, or Arrest without Probable Cause |
| * Demand to see the
evidence. /Demand to see the proof. / Make them prove it. |
| * Jury Trial |
| *Bogus Breath Tests |
| *Challenge the Blood Test Results |
| *Rising alcohol levels |
| *Non-Standardized Field Sobriety Testing proves nothing |
|
Illegal Stop, Detention, or Arrest without Probable Cause |
This is America, the USA, remember? You have a constitutional right to be free of police interference unless the police have a warrant for search or arrest or, in cases where they can prove it, that there was sufficient "probable cause" to stop your car, or to detain you for DUI field testing, or for arrest. Suspicion alone is not enough. DUI cases invariably involve warrantless arrests after a warrantless stop by the police. Prolonged detentions while the police go on a fishing expedition are illegal. Arrests based upon unreliable testing or inadequate observations or unjustified stopping of a vehicle can result in a dismissal of the entire criminal case and stop DMV license loss. When the police break the rules the court may disregard the "evidence". No evidence means no case. Some people call these rules of required police conduct and proof "technicalities". You may prefer to call it for what it really is: Constitutional protections against the police and a powerful government. How does one know if he suffered a violation of constitutional rights and protections? It is best not to guess.
|
Demand to see the evidence. /Demand to see the proof. / Make them prove it. |
Proof beyond a reasonable doubt is required to convict although much less is needed to arrest. You are presumed innocent unless proven guilty. Is the case against you really that good? How do you know?
|
Jury Trial |
No citizen should ever underestimate the power of the right to trial by Jury.
|
Bogus Breath Tests |
Some
individuals are not proper candidates for breath testing for BAC. Did you know
that contamination and inaccurate breath results
occur in cases where the person tested has certain medical or physical
conditions, including: Reflux, heartburn, burping,
belching, regurgitation, GIRD
(gastro-intestinal-reflux-disease). A police officers failure to
conduct a proper 15 minute observation before the test can be crucial; it
is required by law, the manufacturer of the breath machine, and good science. Machine
errors and operator errors do exist, and when discovered can have a
tremendous impact in fighting a DUI conviction.
Breath tests are dangerously false if used on anyone
suffering from Reflux, or GERD, or indigestion, or "heartburn"
Scientific Defense should be explored in all these situations:
MEDLINEplus Gastroesophageal Reflux-Hiatal Hernia
(Patient Education Institute) - requires Flash plug-in
(National Institutes of Health, Clinical Center)
Evolving from work started in the early 1970s, NHTSA maintains up-to-date model specifications for evidential breath test devices, as well as calibrating units for evidential breath testers, and alcohol screening devices. As part of this program, NHTSA updates Conforming Products Lists (CPLs) for each class of devices (evidential breath testers, alcohol screening devices, and calibrating units for evidential breath testers). Other laboratory research on alcohol measurement issues (e.g., ignition interlock devices, saliva-alcohol test devices, etc.) are periodically undertaken when resources allow. This program also supports the DOT-wide workplace alcohol testing program. To obtain a copy, please contact NHTSA's Media and Marketing Division via fax at (202) 493-2062, or visit the NHTSA website at www.nhtsa.dot.gov.
Alveolar breath air is deep lung air. Since breath testing instruments are intended to measure indirectly the concentration of alcohol in the blood, it is essential for accuracy that the breath sample captured by the instrument for analysis be representative of the air in the alveoli of the lung, because it is in the alveoli that the 2100:1 equilibrium ratio between alcohol in the breath and alcohol in the blood occurs.
Infrared Instruments
Infrared breath measuring instruments operate on the principle that each chemical compound has unique infrared energy absorption characteristics. Ethyl alcohol absorbs energy in the 3.42 micron region of the infrared spectrum. The amount of alcohol contained in a sample can be calculated by observing energy loss when a known energy is applied to the sample. In the infrared devices, infrared energy is projected through a breath sample. A photo-detector identifies a decrease in wave amplitude caused by the absorption of energy by the alcohol. The amount of energy absorbed is equal to the breath alcohol concentration. The greater the alcohol concentration, the lower the wave amplitude. A computer on the instrument determines the breath alcohol content based upon the amount of energy loss, and then applies the 2100:1 conversion ratio to provide a digital readout of the suspect's blood alcohol content.
Preliminary Breath Testing Instruments ( PAS : Preliminary Alcohol Screening device )
PBT instruments are portable instruments for the purpose of BAC screening as part of the pre-arrest field testing. The suspect driver blows for several seconds through a plastic or glass tube, and the PBT provides an instantaneous determination of blood alcohol content.
In most jurisdictions, the legal basis for the use of these instruments is contained in the implied consent laws. While results of a PBT generally are not admissible as evidence of DWI, they do provide officers with additional objective information to establish probable cause for arrest and further chemical testing. They also help to detect persons who may be suffering from an illness or injury such as diabetes or head injury and are in need of chemical treatment, but would otherwise be mistaken for an intoxicated person. There are essentially three types of PBTs: electro-chemical, semi-conductor, and disposable chemical.
In electro-chemical PBTs, alcohol in the breath is absorbed into a fuel cell where it is oxidized, producing electrical current. The higher the alcohol content of the breath, the greater the current output of the fuel cell. By measuring the current produced, the instrument determines the breath alcohol content, and the BAC conversion is displayed with the aid of a computer chip. In semi-conductor PBTs, alcohol increases the electrical output of the semi-conductor. By measuring the voltage output, the breath alcohol content can be determined and the BAC conversion is displayed.
Disposable chemical PBTs are glass or plastic tubes containing a measured amount of the chemical, which is reactive with alcohol. As the suspect exhales through the tube, alcohol contained in the breath reacts with the chemical contained within. The greater the breath alcohol content, the greater the chemical reaction observed.
|
Demand a Re-test of the Blood sample |
Challenge the Blood Test Results
Challenges to accuracy are available and if successful may result in dismissal of the DUI charge, reduction to a less serious offense, or winning against a license suspension. Mr. Moore employs the use of extensive discovery from the crime laboratory. Gas chromatograph calibration, maintenance, and repair records can reveal startling problems which violate scientific standards and state law requirements.
Mr. Moore routinely demands a blood re-test at an independent lab
for BAC alcohol level and proper preservation. A re-test
which reports a significantly different BAC may result in dismissal of
the DUI charge, reduction to a less serious offense, or winning against a
license suspension. In appropriate cases the blood sample can be tested for
blood type and even DNA matching. And ... what happens if the government
lab fails to produce a portion of the sample for re-test? The blood test
results should not be admitted against you. Mr. Moore regularly consults with
qualified experts regarding individual cases to determine whether the accuracy
of the reported BAC alcohol level is reliable or not. Was your blood taken by
a licensed individual? The law requires it ,but unlicensed persons have
currently been discovered. Was your sample properly preserved by
chemical preservatives? Was your sample properly refrigerated? Preservation
is crucial because of the specter of fermentation which could increase
the alcohol level in the sample to be tested. Amazing as it seems, some
jurisdictions don't regularly refrigerate stored samples immediately after a
blood draw. e.g. a sample is left in a police locker for days before being
transported to the lab for analysis. Is the "chain of Custody of the
sample properly documented? Did you know that these crime labs routinely
analyze multiple samples of different people in the same time frame? Did a
qualified licensed lab person do the analysis in the presence of a
qualified Supervisor? Was the Gas Chromatograph device properly
calibrated, maintained, repaired according to State law and the terms of
the lab's license? What do the lab records say? Were the records
prepared properly to document all that is required by law and science? Can the
lab provide them? How do you know? It is unwise to assume this vital piece
of evidence was generated and documented in a perfect fashion by the
government lab and employees.
Blood tests are always taken some
time after the driving and alcohol levels rise and lower over time . What
can this mean in your case? How do you find out?
Standardized Field Sobriety Testing
The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP. The three tests of the SFST are:
These tests are administered systematically and are evaluated according to measured responses of the suspect.
HGN Testing
Horizontal gaze nystagmus is an involuntary jerking of the eyeball which
occurs naturally as the eyes gaze to the side. Under normal circumstances,
nystagmus occurs when the eyes are rotated at high peripheral angles. However,
when a person is impaired by alcohol, nystagmus is exaggerated and may occur
at lesser angles. An alcohol-impaired person will also often have difficulty
smoothly tracking a moving object. In the HGN test, the officer observes the
eyes of a suspect as the suspect follows a slowly moving object such as a pen
or small flashlight, horizontally with his eyes. The examiner looks for three
indicators of impairment in each eye: if the eye cannot follow a moving object
smoothly, if jerking is distinct when the eye is at maximum deviation, and if
the angle of onset of jerking is within 45 degrees of center. If, between the
two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or
greater. NHTSA research indicates that this test allows proper classification
of approximately 77 percent of suspects. HGN may also indicate consumption of
seizure medications, phencyclidine, a variety of inhalants, barbiturates, and
other depressants.
Divided Attention Testing
The walk-and-turn test and one-leg stand test are “divided attention”
tests that are easily performed by most sober people. They require a
suspect to listen to and follow instructions while performing simple physical
movements. Impaired persons have difficulty with tasks requiring their
attention to be divided between simple mental and physical exercises.
In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater.
The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony. Because SFST is administered according to national standards and is supported by significant research, it has greater credibility than mere subjective testimony.Alternative Testing Methods
Sometimes, an officer will encounter a disabled driver who cannot perform the SFST. In such cases, some other battery of tests such as counting aloud, reciting the alphabet, or finger dexterity tests may be administered. Several appellate court decisions have indicated that, if you administer a test that requires the subject to respond orally in other than a routine information-giving fashion, such as requiring them to indicate the date of their sixth birthday, and if they are in custody at the time, you should administer the Miranda warning first, because you are seeking information from them that is testimonial or communicative in nature.
Field Validation of Standardized Field Sobriety Tests (SFSTs) at Lower BAC Limits
Standardized Field Sobriety Tests (SFSTs), used routinely by law
enforcement since the mid-1980s, were originally validated at the .10 BAC
level. Now that many states have lowered their BAC limit to .08 BAC, there was
a need to determine whether these standardized tests are also appropriate for
use at the new, lower BAC limit. This report summarizes field findings. SFST
materials are only available to law enforcement.
Figure 3.1: Percentage of
Tests Showing Impairment
by BAC Group and Type Test
The 1978 update briefly discussed the elementary aspects of how the body processes alcohol. No significant changes in our understanding of the fundamentals of these processes have occurred since then, although significant new knowledge of interest to specialists has been gained.
Processing of alcohol by the body begins with absorption by the stomach and small intestines, a process that generally requires some one to three hours, depending on the type and quantity of the alcoholic beverage, and the presence of food in the stomach.
Alcohol enters the bloodstream by simple diffusion, and does not have to be digested. The presence of food in the stomach slows the rate of alcohol absorption, but absorption is also influenced by other factors including the type of alcoholic beverage, the drinker's gender, body temperature, the presence of certain medications in the body, and the types of spices in the food. Distribution to various parts of the body then occurs.
Body fat and skeletal mass absorb very little alcohol. Thus, an identical quantity of alcohol per unit of body weight will induce a higher BAC in women than in men because of differences in body constitution (Bode and Bode, 1997). Some recent research suggests that, in a social drinking setting, a shorter time to peak BAC and a faster absorption rate may occur when alcohol is consumed over an extended period. In contrast, earlier studies found longer absorption times (Winek, Wahba, and Dowdell, 1996).
The variability of absorption time is illustrated by a study by Friel, Baer, and Logan (1995). The study examined alcohol disposition in 77 female and 97 male college seniors who were regular drinkers who exceeded legal intoxication levels at least twice a month by history. After receiving a standard alcohol dose (lower for females than for males) over 10 minutes, after a four-hour fast, breath alcohol concentrations (BrACs) were measured for two hours. The time to peak BrAC varied from 10 to 91 minutes after the start of drinking, and mean BrACs were significantly lower in females than in males.
Absorption and peak BAC vary by type of food as well as amount of food. For example, a study of a small sample of women subjects found that the peak BAC was significantly higher in those drinking alcohol and sodium (simulating salty food) than in those drinking alcohol with no sodium (Talbot and La Grange, 1999).
Alcohol is metabolized primarily in the liver, but metabolism occurs also in the stomach and small intestine. Gastric alcohol metabolism, which is significant only at low alcohol concentrations, is more efficient in men than in women, which helps explain why the same amount of alcohol produces higher blood alcohol concentrations in women than in men. There is also evidence that alcohol can be metabolized by bacteria in the large intestine. Bode and Bode (1997) note that alcohol is not only degraded, but also produced in the gastrointestinal tract as a by-product of bacterial breakdown of ingested carbohydrates.
Finally, of the alcohol absorbed, 90-98 % is oxidized, 1-5 % is excreted in an unaltered state in urine, and another 1-5 % is expired via the lungs (Vrij-Standhardt, 1991). The total time to eliminate alcohol from the body is dependent upon the variables that influence absorption (see above).
Since alcohol’s immediate effects are due to its effect on the brain, it would be desirable to know the alcohol concentration in the brain after drinking. Obviously, direct measurements are impractical for most purposes, and other means must be used for estimating "brain-alcohol concentration."
Chemical tests of blood drawn from a vein or capillary are the preferred indirect way of estimating alcohol concentration in the brain in live humans. Other chemical tests that relate alcohol presence elsewhere in the body to alcohol presence in the blood, have also been used, the most common now being tests of alcohol in air expired from the lungs.9
Breath-alcohol measurement has become more precise and reliable since the 1978 update, and also more convenient and easy to perform, especially in forensic settings. The 1978 update noted that the factor (estimated at 2,100 at that time) for converting breath alcohol measurements to blood alcohol measurements could not be precisely determined, and also presented data from 28 studies on the blood/breath deviation. The data indicated that breath testers typically underestimated BAC by up to 10% or so.
More recent studies using improved technology indicate that the conversion factor may be closer to 2,400 than 2,100, (Jones and Anderson, 1996). This means that, on average, using a conversion factor of 2,100 would underestimate BAC by about 10%. Jones and Anderson note the fairly high variability of the conversion factor and discuss some of the factors that may influence the variability. Jones and Pounder (1998) discuss current practices for measuring alcohol concentration in clinical and forensic laboratories and recommend methods for assuring quality in laboratory procedures.
Two major advances in instrumentation of interest in the drinking-driving field are: much more precise and less expensive portable breath testers for operational use, and the development of "passive" breath testers that test the breath of expired air near the mouth without the need for collecting air directly from the mouth (Farmer, Wells, Ferguson et al., 1999). Other measurement techniques now under study in this country are the use of saliva (Flores, Spicer, and Frank, 1992) and "sweat patches" (Deveaux and Gosset, 2000) for estimating BAC. Saliva measurement devices are being used more often outside the United States and have been found to perform favorably for rapid estimation of BAC (Keim, Bartfield, and Raccio-Robak, 1996; Kiesow, Simons, and Long, 1993). Practical self-testing devices have also been developed and are being used in Australia (Haworth and Bowland, 1995; Haworth, Bowland, Vulcan et al., 1997). Exploratory studies of the use of laser technology to detect alcohol presence in a closed vehicle have also been conducted, but no formal reports of their results were found in our literature search.
In addition to chemical tests, improved behavioral tests for alcohol impairment are now being employed widely to assist police officers in identifying alcohol impairment among drivers suspected of a drinking-driving law violation. The standardized field sobriety test (SFST) of one’s performance in a set of three sub-tests is being used in jurisdictions in all 50 States (Burns, 1999). The sub-tests are: horizontal gaze nystagmus (HGN), walk-and-turn (WAT), and one-leg-stand (OLS). HGN requires the subject to visually follow a moving object, and the angle of onset and degree of nystagmus (an involuntary jerking of the eye) is observed. Alcohol-impairment causes an earlier onset and a greater degree of nystagmus.10 HGN has been found to be the best index of alcohol of the three tests.
Subjective estimates of BAC by persons (e.g., police officers, physicians, and bartenders) who deal with drinkers in various settings have been shown to be notoriously inaccurate (Hansen, Popkin, Campbell et al., 1991). In another study of police officers’s ability to detect even the odor of alcohol at various BACs up to .13, researchers found that odor strength estimates were unrelated to BAC levels and that estimates of BAC level "failed to rise above random guesses" (Moskowitz, Burns, and Ferguson, 1999).
Methods for calculating one’s own BAC after consuming a given amount of an alcoholic beverage have been published in various forms, including formulas, procedures, tables, computer programs, and nomograms. South (1992) summarized factors affecting BAC and presented a formula calculating it, deeming the formula "complex to use and not very accurate." This assessment holds true for self-determination methods in general, which give only a rough idea of one’s BAC after drinking. South, a resident of Australia, recommended that those wanting to know much they can drink and drive legally use a combination of counting drinks and using a coin-operated breath testing device.
NHTSA has sponsored a number of research projects during the past twenty years to improve law enforcement officers' ability to detect drivers and motorcyclists whose driving/riding is impaired by alcohol. Now that many states have lowered the legal BAC limit to 0.08, and many others have passed zero-tolerance laws for youth under 21, there is a need to identify driving cues that predict DWI at BACs below 0.10.
A technical report describing this research is available (DOT HS 808 654)
(2P1044) as well as training materials for police use. The Visual Detection of
DWI Motorists (DOT HS 808 677) is a brochure with accompanying training video
for law enforcement to identify DWI motorists at BACs below 0.10.
Field Test of On-Site Drug Detection Devices
NHTSA is sponsoring a major field test of on-site drug detection devices
for use by law enforcement. These devices are disposable urine test kits that
determine the presence or absence of drugs (e.g., marijuana, amphetamines, and
cocaine). ISA Associates of Alexandria, VA are conducting the research in
collaboration with the Center for Human Toxicology of the University of Utah.
The two cooperating police agencies are the Nassau Co., New York Police
Department, and the Houston, Texas Police Department. The project is scheduled
for completion by June of 2000.
Visual Detection of DWI Motorists
This brochure provides law enforcement officers with information on
detecting impaired motorists, articulating observed behaviors on arrest
reports and ways to support officers' expert testimony. A compact DWI
Detection Guide is provided, along with a summary of the research that led to
the guide, explanations of the 24 driving cues and a description of post-stop
cues that are predictive of DWI.
The Detection of DWI Motorcyclists
This brochure provides law enforcement officers information on identifying behavioral cues to detecting impaired motorcycle operators. The brochure discusses 14 rider behaviors found to best distinguish between impaired and unimpaired motorcyclists. In addition to a training video available for roll-call settings, a pocket detection guide accompanies the brochure (DOT HS 807 856; Order # 2P0905). A technical report, The Detection of DWI Motorcyclists (DOT HS 807 839; Order # 6P0026), that provides additional details of the research is available.
(Order # 6P0058) Horizontal Gaze Nystagmus: The Science and the LawA resource guide for law enforcement, prosecutors, and judges on horizontal
gaze nystagmus as a component of NHTSA's Standardized Field Sobriety Testing
Program.
Training
Standardized Field Sobriety Testing (SFST) and Drug Recognition Expert (DRE) Training Programs
These training programs are provided to states and communities for law enforcement officers. A training curriculum is available for each program to train instructors. NHTSA and IACP have developed standards for the DRE and SFST programs. Available through state highway safety offices or through NHTSA regional offices.
Youth DWI and Underage Enforcement Manual
Manual written by police officers describing effective strategies and
techniques for enforcing underage drinking laws and youthful impaired driving
laws.
DOT HS X0522 (Order # 4P0068)
The 1978 update reviewed a number of laboratory studies of the effects of alcohol on one’s ability to perform various tasks related to driving, summarizing its conclusions as follows:
"With respect to the simpler behavioral processes, there is evidence that neuromuscular responses may be impaired in some individuals at BACs as low as .04% to .05% w/v [weight per volume] and that many more individuals suffer such impairment at BACs in the range of .10% w/v. However, studies indicate that experienced drinkers can, if motivated, overcome these impairing tendencies at BACs as high as .20% w/v. Vision per se is not greatly affected by alcohol at BACs of less than .10% w/v, but above that it becomes impaired in most persons. ‘Simple’ tracking performance does not appear to be seriously degraded at BACs of less than .10% w/v, but the performance of ‘complex’ tracking tasks has been degraded in many individuals at BACs in the .05% to .10% w/v range. The ability to divide attention between tasks can be impaired at very low BACs (i.e., .02% w/v) and is often impaired at BACs above .08% w/v.
Studies of the more complex behavioral processes indicate that risk taking may be increased at moderate BACs for introverts and light drinkers. Moreover, low doses of alcohol have been observed to improve the intellectual performance of heavy drinkers and alcoholics while having the opposite effect on lighter drinkers. Alcohol has been found detrimental to memory, particularly the long-term memory, of heavy drinkers."
Roadside Checkpoints
Roadside checkpoints provide law enforcement personnel with a ready means to monitor and check drivers' licenses, vehicle regis-trations, vehicle equipment, and the public vehicle identification numbers (PVINs) mounted on the dashboards of vehicles and readily visible through the windshield. Because some courts and licensing authorities now issue restricted licenses to offenders, roadside checks allow officers to monitor compliance with court-ordered and statutory restrictions. Law enforcement personnel can contact increased numbers of vehicle operators without first having to make traffic stops. Roadside checkpoints also enable officers to conduct vehicle registration inquiries and detect uninspected or unsafe vehicles. A primary tool used by drug couriers to transport illegal drugs is a vehicle registered to someone other than the operator, such as a leased vehicle. Vehicle registration checks often thwart attempts to transport significant quantities of illegal narcotics and cash. The roadside checkpoint also affords us a means to quickly review vehicle safety equipment and ensure compliance with special equipment. An officer can determine compliance with regulations pertaining to tires, exhaust, safety belts, mirrors, glass, lights, and related equipment. Vehicles not in compliance can be removed from the roadways or issued citations or defective equipment repair orders.
Site selection is an important aspect of roadside checkpoints. Sites should be selected for their ability to provide for the safety of the public and the police. A safe site requires adequate visibility for approaching motorists, and ample space to park police and violators' vehicles without blocking driveways to nearby residences or business establishments. Further examination of a vehicle may be necessary, and allowing it to remain in the roadway can constitute a traffic hazard. Sites should also be assessed for daylight and night operations, taking into consideration the previous factors.
DWI Sobriety CheckpointsDWI sobriety checkpoints are a special form of roadside safety checks. While some states have ruled such checkpoints illegal under their state constitutions, the majority and the U.S. Supreme Court have found checkpoints to be legal when conducted in a manner minimally intrusive on the rights of the traveling public.
Site Operations
Generally, roadside sobriety checkpoint locations should be determined by law enforcement commanders or first-line super-visors, rather than being selected on an ad hoc basis by the line officers who conduct them. To deter drinking drivers, advance publicity of a checkpoint is advisable. Warning signs should also be placed along the highway to notify motorists in advance, and adequate lighting should enable the motorist to quickly spot the checkpoint and react. The warning devices on vehicles and reflec-torized equipment worn by officers should be deployed. Be sure that oncoming motorists are not blinded by the lights of police cruisers or other stopped vehicles. Provide ample room and a safe location to pull vehicles over, by officers in full uniform and readily identifiable. Briefly greet each motorist and explain the purpose of the stop. After a brief conver-sation and, perhaps, a check of the driver's license, registration, inspection sticker, and equipment, determine whether or not the driver appears to be impaired. If not, quickly wave the motorist on his way. Motorists selected for further investigation on the basis of articulable suspicion should be pulled off the road in a location where additional inquiry can be conducted.
If articulable suspicion of DUI exists, a PBT (preliminary breath testing) device can be employed. Some PBT devices are so sophisticated that they no longer require the motorist to blow into them, but operate as “sniffers” to check for the presence of volatile substances when passed in front of the driver's nose and mouth. If alcohol or controlled substances are detected and the driver appears impaired, administer a field sobriety test, and place the driver under arrest, to be transported to a breath testing site, or a “Batmobile” (a portable breath tester set up in a police van).
When stopping vehicles for roadside checks, devise a system that prohibits the constitutionally impermissible random stopping of vehicles and complies with the provisions of the U.S. Supreme Court decision in Delaware v. Prouse. This case can be complied with by either stopping every vehicle, so that each driver has an equal chance of being stopped, or by stopping of every tenth or every twentieth vehicle so that the officer does not exercise individual discretion in deciding which vehicle is to be stopped, and all cars have an equal chance of being selected. Compliance with these suggestions will result in a constitutionally permissible roadside inspection procedure in most jurisdictions.
Drug Recognition Experts
Often the behavior of suspects is abnormal for alcohol impairment alone, or field or breath tests indicate that the suspect's BAC is lower than the level of impairment suggests. Either of these observations is common when encountering poly-drug users. Most jurisdictions have laws that prohibit DWI by alcohol, drugs, or a combination.
Drug recognition experts (DREs) are officers who have been specifically trained to recognize the effects of drug impairment. The DRE examines such suspects and makes trained observations to determine whether to request a blood or urine test, and to guide the laboratory technician toward general categories of drugs to look for in analysis of the sample. The DRE's examination also provides evidence of observable drug effects to help confirm the lab analysis. Recognizing Drug “Signatures”.
DREs are trained to recognize distinguishable “signatures” of certain categories of drugs, identified through five observations by the DRE: vital signs (pulse, temperature, and blood pressure); psychophysical responses (coordination of mind and body); signs of administration of drugs (such as injection sites); eye responses (horizontal and vertical gaze nystagmus, eye convergence, and pupil size under varying light intensities); and physical and behavioral characteristics (such as muscle rigidity or flaccidity, hyperactivity).
A DREs observations cannot substitute for the chemical test or lab analysis. Only such analysis by qualified forensic chemists can accurately identify or quantify a particular drug. This analysis is an important step in the acquisition of gathering evidence in drug-related cases.
History of the DRE Concept
The DRE concept was designed and tested by members of the Los Angeles Police Department in the 1970s, and has been practiced in that department and many others since 1982. Reliability and validity studies were conducted by the Johns Hopkins University Medical Center. The DRE techniques have been recognized by NHTSA since 1984, and the IACP Highway Safety Advisory Committee developed and has administered national standards for training and certification of DREs since 1989. At this writing, more than 3,000 trained DREs work in more than 100 programs in nearly half the states.
NHTSA Prerequisites
NHTSA has individual, departmental, and jurisdictional prerequi-sites for training of DREs. The trainees should already be proficient in using standardized field sobriety testing techniques and should demonstrate a commitment to DWI and drug enforce-ment. The sponsoring agency should make an ongoing commit-ment to deterring impaired driving and provide the command support to allow the DRE to function at maximum effectiveness. Finally, the jurisdiction where the DRE will operate must have a legal and political framework consistent with effective enforcement of drug-impaired driving violations.
NHTSA has also established specific prerequisites as part of its DRE training curriculum. The student must be employed or under the direct control of a public criminal justice agency or an institution involved in providing training services to officers of law enforcement agencies. He must achieve the learning objectives of a two-day pre-school, demonstrate proficiency in the use of the SFST, possess good communication skills or a demonstrated ability to testify in court, and be willing to serve as a DRE upon completion of the training. The department must have an active drug enforcement and DWI enforcement program; be proactive in training officers in SFST consistent with IACP guidelines; maintain records of individual officers' SFST activities; have access to adequate chemical testing resources, adequate facilities, and equipment to support the drug evaluation and classification examinations; maintain a management information system capable of accurately tracking alcohol and drug enforcement activities; and have the firm support and commitment of the chief law enforcement officer and other appropriate officials.
The state or community must have laws that permit analyses of chemical samples obtained from persons suspected of impaired driving; allow the arresting officer to specify the type of test or tests to be given to suspected impaired drivers (blood, breath, or urine); and specifically provide testing for drugs other than alcohol. Local prosecutors must demonstrate a willingness to intro-duce SFST evidence in DWI cases and to participate in the training to become familiar with drug evaluation and classification procedures. Local judges must demonstrate willingness to accept SFST evidence in court and to consider DRE evidence in alcohol and drug cases. Finally, the political leadership of the jurisdiction should express support for the DRE program.
DRE Training and Certification Process
Once the prerequisites have been met, DRE training is a three-step process. Phase I is a two-day orientation to the techniques and procedures for evaluating drug-impaired suspects. Phase II is seven days of instruction in drug evaluation, physiology, effects of drugs, and legal considerations. At its conclusion, students are required to pass a written exam. Phase III consists of supervised field training and working with actual drug-impaired suspects. After a student has competently performed a minimum of 12 suspect evaluations identifying three of the seven different drug categories, he must complete a comprehensive written examination before obtaining IACP certification. Certified DREs must renew their certification every two years. Recertification requires each DRE to perform a minimum of four acceptable evaluations since the date of the last certification, successfully complete eight hours of IACP-approved recertification training, and submit updated documentation of DRE activity. A DRE will be decertified if he fails to maintain standards and certification requirements, or demonstrates substantial unethical or unprofessional behavior.
Many people have entered guilty pleas in DUI cases without realizing that they are giving up valuable legal rights, and that various legal defenses may be available to them. The prosecutor must prove a DUI beyond and to the exclusion of every reasonable doubt. The breath machine might have been in error, and the results could be challenged. The circumstances of the arrest might also be subject to legal attack.
It is important for you to consider having a skilled attorney on your side in order to protect your valuable legal rights. Don't face the State alone.
Traffic Stop NHTSA study detection guide describes a set of behaviors that can be used by officers to detect motorists who are likely to be driving while impaired .
"Likely"? 35% ? 50% ? 65% ? 70% ? "Probability" ?
These don't sound like BEYOND A REASONABLE DOUBT do they?Explanations of the 24 driving cues
A description of post-stop cues that are predictive of DWI
The driving behaviors identified by the officers are presented in the following four categories:1) Problems in maintaining proper lane position,
2 ) Speed and braking problems,
3) Vigilance problems, and
4) Judgment problems.
The cues presented in these categories predict that a driver is DWI at least 35 percent of the time. For example, if you observe a driver to be weaving or weaving across lane lines, the probability of DWI is more than .50, or 50 percent. However, if you observe either of the weaving cues and any other cue listed in this booklet, the probability of DWI jumps to at least .65, or 65 percent. Observing any two cues other than weaving indicates a probability of DWI of at least 50 percent, although some cues, such as swerving, accelerating for no reason, and driving on other than the designated roadway, have single-cue probabilities greater than 70 percent. Generally, the probability of DWI increases substantially when a driver exhibits more than one of the cues.
The research suggests that these training materials will be helpful to officers in:
- Detecting impaired motorists,
- Articulating observed behaviors on arrest reports, and
- Supporting officers' expert testimony.
The cues presented in these categories predict that a driver is DWI at least 35 percent of the time. For example, if you observe a driver to be weaving or weaving across lane lines, the probability of DWI is more than .50, or 50 percent. However, if you observe either of the weaving cues and any other cue listed in this booklet, the probability of DWI jumps to at least .65, or 65 percent. Observing any two cues other than weaving indicates a probability of DWI of at least 50 percent, although some cues, such as swerving, accelerating for no reason, and driving on other than the designated roadway, have single-cue probabilities greater than 70 percent. Generally, the probability of DWI increases substantially when a driver exhibits more than one of the cues.
The research suggests that these training materials will be helpful to officers in:
- Detecting impaired motorists,
- Articulating observed behaviors on arrest reports, and
- Supporting officers' expert testimony.
Field Sobriety Tests Standardized Field Sobriety Testing
The Standardized Field Sobriety Test (SFST) is a battery of three tests
The three tests of the SFST are:
- the horizontal gaze nystagmus (HGN)
- the walk-and-turn
- the one-leg stand.
- What tests did the policeman give you? Remember: Only 3 and only these 3 tests if properly conducted and properly interpreted by a qualified and properly trained person, have any scientific foundation to show a probability that an individual is "under the influence".
Blood and breath tests can be challenged. Breath testing for "BAC" or blood alcohol concentration is usually the most damning evidence that an individual accused of DUI will face. In California it is used to support a separate DUI offense for BAC above .08 %. Frequently breath testing is used at the scene of the stop and arrest to justify the arrest.
Breath tests are not infallible. In fact, most people would be shocked to learn of the numerous defects and deficiencies inherent in using breath tests to accurately report an individuals true/real BAC. A police officers failure to conduct a proper 15 minute observation before the test can be crucial; it is required by law, the manufacturer of the breath machine, and good science. Machine errors and operator errors do exist, and when discovered can have a tremendous impact in fighting a DUI conviction.
Challenges against the use of breath test results are numerous and if successful may result in dismissal of the DUI charge, reduction to a less serious offense, or winning against a license suspension. It is apparent that an Attorney skilled in the workings of breath testing devices has a serious advantage in ability to defend against the DUI charge .Mr. Moore employs the use of extensive discovery from the crime laboratory. Calibration, maintenance, and repair records can reveal startling problems which violate scientific standards and state law requirements.
Mr. Moore has almost 20 years of Trial experience in challenging breath tests in Court. Additionally, he is one of the very few DUI defense lawyers in California and the United States to become certified in breath testing. He has been winning these cases in Jury Trial for years. Only a few Attorneys in the entire nation, dedicated to winning DUI, cases have ever achieved this expertise. Do you think this might make a difference? Mr. Moore knows.
Winning cases in DUI & Drivers license suspension cases.
How
Breathalyzers Work - http://www.howstuffworks.com/breathalyzer.htm
Informative article examines the scientific principles and
technology behind breath alcohol testing devices.
Alcohol Doses, Measurements, and
Blood Alcohol Levels Indiana
University Prevention Resource Center - http://www.drugs.indiana.edu/publications/iprc/factline/alcdoses.html
Effects of various amounts and kinds of alcoholic beverages on
the human body.
Gas Chromatography
Gas chromatography was, and still is, used to identify
exactly how much alcohol is present
in the blood or urine of a suspect driver. Because it is very accurate, results
can be used as evidence in a court of law. It`s applications are not only
limited to the measuring of BAC, gas
chromatography is also ideal for the detection of many other drugs
and substances. This technique works by separating gases and liquids into their
elemental components. The process is relatively quick, but in the case of BAC
measurement, is still a tedious and routine job.
The sample is injected into a heated reaction chamber where
it will vaporise (if it is not
already a gas) then moved by an inert
carrier gas through the stationary phase column which is a long tube made of
either stainless steel or glass that has been tightly wound into a coil. This
column may be up to six metres (19.7ft) long and only 3mm (0.12 in) in diameter!
The elements in the sample will separate out during the passage through the tube
and at the end of the column, will pass through a detection device. Each
component generates its own individual electrical impulses which are recorded as
a chromatogram of response (vertical axis) versus time (horizontal axis). So a
chromatogram usually turns out as a number of uneven peaks which can be
identified by comparing the shape and time they came out with a reference
chromatogram or a control sample.
In appropriate
cases the blood sample can be tested for blood type and even DNA matching. And
... what happens if the government lab fails to produce a portion of the
sample for re-test? The blood test results should not be admitted against you.
Mr. Moore regularly consults with qualified experts regarding individual cases
to determine whether the accuracy of the reported BAC alcohol level is reliable
or not. Was your blood taken by a licensed individual? The law requires
it ,but unlicensed persons have currently been discovered. Was your sample properly
preserved by chemical preservatives? Was your sample properly
refrigerated? Preservation is crucial because of the specter of
fermentation which could increase the alcohol level in the sample to be
tested. Amazing as it seems, some jurisdictions don't regularly refrigerate
stored samples immediately after a blood draw. e.g. a sample is left in a police
locker for days before being transported to the lab for analysis. Is the
"chain of Custody of the sample properly documented? Did you know that
these crime labs routinely analyze multiple samples of different people in
the same time frame? Did a qualified licensed lab person do the
analysis in the presence of a qualified Supervisor? Was the Gas
Chromatograph device properly calibrated, maintained, repaired according
to State law and the terms of the lab's license? What do the lab
records say? Were the records prepared properly to document all that is
required by law and science? Can the lab provide them? How do you know? It is
unwise to assume this vital piece of evidence was generated and documented in a
perfect fashion by the government lab and employees.
Blood tests are always taken some time
after the driving and alcohol levels rise and lower over time . What can
this mean in your case? How do you find out?
Mr.
Moore routinely demands a blood re-test at an independent lab for BAC
alcohol level and proper preservation. A re-test
which reports a significantly different BAC may result in dismissal
of the DUI charge, reduction to a less serious offense, or winning against
a license suspension.