DUI Enforcement

One-Leg Stand Test, A Standardized Field Sobriety Test (FST)

September 13, 2013 | The Law Offices of Susan L. Hartman

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.

Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations

August 20, 2013 | The Law Offices of Susan L. Hartman

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.

Field Sobriety Tests (FST’s), What Are They?

August 13, 2013 | The Law Offices of Susan L. Hartman

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.

San Diego Craft Beer Warning, Look Out For The ABV

July 8, 2013 | The Law Offices of Susan L. Hartman

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.

In California, Can You Be Charged With DUI While Boating (BUI)?

June 13, 2013 | The Law Offices of Susan L. Hartman

Drunk boating charges were recently brought against Erin Brockovich, an environmental activist whose life was the basis of the self-titled movie, according to examiner.com. She was boating on Lake Mead in Nevada and she caught law enforcement’s attention when she was struggling to dock her boat. After an investigation, she was arrested for OUI, or Operating Under the Influence, Nevada’s version of California’s DUI laws.

California also has drunk boating statutes which are found in the California Harbors and Navigation Code Section 655. The language used in the boating under the influence, or BUI, statutes is very similar to the drunk driving statutes, California Vehicle Code Section 23152(a) & (b). Section 655(b) is similar to the (a) count for DUI, and it specifically states, “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.”

California Harbors and Navigations Code Section 655(c) is similar to the (b) count for DUI, and it specifically states, “No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.”

These code sections pertain to recreational vehicles; however, if a person is operating a commercial vehicle, the Harbors and Navigation Code 655(d) states, “No person shall operate any vessel other than a recreational vessel is the person has an alcohol concentration of 0.04 percent or more in his or her blood.”

If any injuries are involved, the boat operator can be charged with Section 655(f) of the Harbors and Navigation Code. This is similar to California Vehicle Code Section 23153 and it expressly states, “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.”

Open containers are allowed inside a boat and passengers and drivers can consume alcohol. It is only illegal to operate a boat while under the influence.

San Diego law enforcement are out in full force over the summer months ensuring our beaches and local waterways are safe. They will arrest those they believe are under the influence and operating a motorized boat. If you are arrested for BUI, you owe it to yourself to hire a criminal defense attorney who specifically handles DUI matters.

Avoid Drunk Driving Charges In CA This Memorial Day By Planning Ahead

May 24, 2013 | The Law Offices of Susan L. Hartman

San Diego Sheriff’s Department announced a Memorial Day weekend DUI crackdown through their Avoid the 15 DUI Task Force. They will be conducing DUI and driver’s license checkpoints and drunk driving saturation patrols throughout the County of San Diego beginning Friday night and continuing throughout the weekend, especially in the evening hours.

California Highway Patrol (CHP) also published a press release stating they will also be out in full force this weekend in an attempt to reduce deaths and injuries caused by drunk driving. The Maximum Enforcement Period (MEP) begins Friday, May 24th, at 6:00 p.m. and continues until Monday, May 27th, at 11:59 p.m. CHP officers will enforce seatbelt use, speed violations, and driving under the influence.

Other California law enforcement is expected to follow suit and either set up sobriety checkpoints or conduct saturation patrols specifically looking for drunk drivers. To get the most up-to-date checkpoint information, use Mr.Checkpoint.

The San Diego Sheriff’s press release included a warning that Memorial weekend is the official start of summer and partying. Along with the festivities, people often overly indulge in alcohol. To keep everyone safe, they recommend planning ahead before you head out to your parties. You can do this by designating a sober driver, arranging a ride home for yourself or your intoxicated friends, calling a cab or using one of the apps for texting a cab, or planning to stay at the place of the party. If you are hosting a party, limit the amount of drinks you serve, provide plenty of food, and have fun alcohol-free drinks for the designated drivers.

Last year’s Memorial weekend resulted in 25 deaths on California roadways and 1,300 DUI arrests. Don’t end up spending your holiday in jail, or worse, in the hospital or morgue. Plan ahead. However, if you do end up arrested for drunk driving, you owe it to yourself to hire a California DUI defense attorney to help get you through the process with the best possible outcome.

Forced Blood Draws: Will San Diego Law Enforcement Get A Warrant?

May 23, 2013 | The Law Offices of Susan L. Hartman

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.

Driving Under The Influence Cases In The News

April 24, 2013 | The Law Offices of Susan L. Hartman

There were three big stories this week about drunk driving. First, Al Michaels, an NBC sports announcer best known for his commentary on Sunday Night Football, was arrested on Friday, April 19th, according to abclocal.com. Second, Reese Witherspoon’s husband, James Toth, was also arrested on suspicion of drunk driving on that same day, according to cbsnews.com. Lastly, San Diego Police Detective Jeffrey Blackford was sentenced Monday, April 22nd, after pleading guilty to misdemeanor DUI and reckless driving last week, according to utsandiego.com.

Allegedly, Al Michaels made an illegal U-turn near a DUI roadblock in Santa Monica, California. Officers conducting the checkpoint arrested him, took him to the police station and booked him on suspicion of drunk driving for allegedly having a blood alcohol content over the legal limit of .08 percent. He was released on his own recognizance (OR release) and is due in court on June 26th.

The California Supreme Court’s landmark case on DUI checkpoints is Ingersoll v. Palmer. In that opinion, the Court explained the specific requirements for a drunk driving roadblock to be constitutional. One requirement is there must be an opportunity for a driver to avoid the checkpoint if they choose and police cannot arrest someone just for using the outlet. Cops can stop the car, however, if the driver commits a moving violation or they display signs of intoxication.

According to the reports about Al Michaels arrest, he was seen making an illegal U-turn. This would give the officers probable cause to detain him. Once they smelled an odor of an alcoholic beverage, they would be able to legally initiate a drunk driving investigation.

James Toth was weaving while driving in Atlanta, Georgia, which prompted law enforcement to pull him over. Police allegedly saw evidence that Toth was under the influence including “droopy eyelids, watery, bloodshot eyes, and his breath smelled strongly of alcohol.”

Officers use these cues to legally begin a drunken driving investigation. Regardless of the reason why a person was pulled over, if the officer see signs of intoxication, they can prolong the detention and further investigate for DUI. Often, defendants argue that the officer never cited them for the underlying violation, and therefore, the case should be thrown out. The Court will not agree with this argument. The officer may pull over a vehicle on suspicion of any violation, regardless of the ultimate charges brought against the driver.

Lastly, this blog has previously commented on the Blackford matter, (see “SD Police Officers Investigated: Possible DUI Cover Up For One Of Their Own“). Although the San Diego District Attorney’s Office is still reviewing this matter for a possible officer cover up, Blackford was sentenced for the DUI in the San Diego Superior Court.

The San Diego Deputy City Attorney requested 60 days in custody to be served in jail or by another in-custody alternative. However, Judge Frederick Maguire ordered 25 days of public work service, 5 years of informal probation, the standard fines and fees, the MADD victim impact panel class, and a first conviction program.

Whether you are a famous sports announcer, an agent, or a cop, if you drink and drive and you are pulled over you will likely be charged with drunk driving. You owe it to yourself to hire a criminal defense attorney who handles drunk driving matters. Do not just plead guilty!

San Diego County 1st Drunk Driving Offense: Why The 9-Month Program?

February 8, 2013 | The Law Offices of Susan L. Hartman

In the San Diego courts, if you plead guilty or you are convicted of a first drunk driving offense, the court will order you to enroll and complete a first conviction program. There is a 3-month program and a 9-month program.

The 3-month Drunk Driving First Conviction Program is the standard program ordered by the court. However, the court will impose the enhanced 9-month program if the blood-alcohol content (or BAC) was at or above .20%. Defendants must be aware of this if they want to obtain a restricted driver’s license after the Administrative Per Se suspension imposed by the DMV. The DMV will only require enrollment in a 3-month program for the restriction; however, after the court process is complete, the defendant may have to enroll and complete the 9-month program instead.

In order to comply with the court ordered 9-month first conviction program, you must attend a court approved program. These can be found on the San Diego Court’s website. The nine month course costs $1,190.00 and includes:

Six education classes, 1 class per week, 2 hours per class;
Thirty counseling group sessions, 1 session per week, 1.5 hours per session;
Twenty face-to-face interviews, 1 bi-weekly, 20 minutes per interview; and,
Thirty-nine self-help meetings, 1 per week.

You can enroll using the DMV DUI paperwork or the court referral form. However, you want to make sure you enroll in the right program.

Failure to enroll and/or complete the ordered program by the dates set by the court will result in a probation violation. In addition, the DMV will not allow you to apply for a restricted driver’s license until you enroll and you will not be eligible to reinstate your driving privileges in full until you complete the requisite program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

Driving Under The Influence Charges, But I Was Not Driving

January 25, 2013 | The Law Offices of Susan L. Hartman

Under the California Vehicle Code, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” (See 23152 VC.)

Simply stated, in order for the defendant to be found guilty, the prosecutor must prove to a jury that the defendant was: 1.) Driving a vehicle; and 2.) Under the influence.

Often, people who are just standing by a vehicle, sitting in the driver’s seat, or sleeping in their car are charged with drunk driving. How is this legal if the officer did not actually witness driving?

According to California Penal Code Section 836, “A peace officer may arrest a person…without a warrant…whenever the following circumstances occur: (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence…”

However, there are several exceptions to the presence requirement providing a very big hole through PC 836, allowing an officer to make an arrest for DUI even if the actual driving was not observed by the arresting officer. The exceptions include:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested. (See VC Section 40300.5.)

But, even if the officer made a valid, warrantless arrest, the prosecutor must still prove driving to win their case. According to Mercer v. DMV, the act of driving in the drunk driving statutes requires actual volitional movement of the vehicle. However, the courts have held driving can be proven by circumstantial evidence. This is a fact-based issue and many of these cases end up in trial, leaving the jury to decide what happened.

If you have been charged with DUI in Southern California, and you were not actually driving the car or there were no witnesses to your driving, you should immediately contact a criminal defense lawyer who exclusively handles drunk driving cases to protect you and your rights.