Defenses to DUI  DWI Cases Drunk Driving, Drugs, and the Law

Defenses to DUI DWI Cases Drunk Driving, Drugs, and the Law

Defenses to DUI / DWI Cases: Drunk Driving, Drugs, and the Law from The Legal Seagull on Vimeo.

Driving under the influence of alcohol or drugs (DUI) is illegal in all 50 states. Some states refer to this as driving while impaired or driving while intoxicated (DWI).

I interviewed Deputy Public Defender Omid Haghighat about the ins and outs of a DUI / DWI case, including potential defenses. Although we covered many common DUI / DWI issues (that may be applicable in your state), parts of this article pertain specifically to California law. Please read The Legal Seagull’s disclaimer before proceeding with this article.*

Here is a transcript of the interview, slightly edited for reader comprehension and enjoyment:

Types of DUI / DWI charges

NL: Omid, welcome to the show.

OH: Glad to be here.

NL: What are the different types of DUIs? We all know about the 0.08% blood alcohol content level. A lot of people tend to think that’s pretty much the prime ingredient in most DUI convictions. What are the different types?

OH: In any alcohol DUI charge basically you’re dealing with two charges. You’re dealing with one that says that you were driving and you had a blood alcohol level of over 0.08%. You have another charge that says you were driving and you were too impaired by either drugs, or alcohol, or a combination of both, to drive safely. It’s a little more complicated than that, but those are essentially the two types of charges.

Let’s assume that we’re just talking about alcohol right now. Let’s say someone is driving, they get pulled over, they do a breath test ultimately, and they have a 0.14% blood alcohol level, according to the breath test machine. They can be charged with both driving with over a 0.08%, and being too impaired by alcohol to drive safely. If we’re talking about your blood alcohol level we’re talking about having tested it with either a breath test machine, or a blood test. So insofar as you’re using some scientific method to test your blood alcohol level, those are scientific.

When it comes to being too impaired, or rather driving under the influence without the requirement of a blood alcohol level, there are a number of tests that officers use that are not testing your blood, or your breath, but in fact are testing your ability to do certain field sobriety tests, or otherwise. This is all regulated by the National Highway Traffic Safety Administration. Some of the tests that they have designed are said to be scientifically validated. So insofar as those tests are done correctly, and are scientifically validated, many prosecutors and officers will say that those are scientific tests as well.

Getting pulled over: the initial stop

NL: So we’re going to get into this whole area of the field sobriety tests, which is one of the things that most people know about, the whole “touch your nose,” “recite the alphabet backwards,” “try and walk in a straight line,” we’ll get to that. But it sounds like there might be some dispute over whether these tests are all valid, or that they successfully measure impairment. Let’s walk through the entire process. Let’s start with the time when someone is driving a car, they’ve left a bar, or their home, wherever it is that they’ve been having a good time, and they get pulled over. Now, there’s one of two ways this could happen. One is that they get pulled over the way everyone is probably used to getting pulled over, and then there’s the DUI stop. So why don’t we start with that. Take us through it. What happens at that point?

OH: Well I just want to add that sometimes it’s not that they’re pulled over, but sometimes they get into a car accident. Then, when the police officers arrive and do a little investigation they start to realize that maybe one of the individuals in the car was under the influence. So that’s another way that essentially someone can have an officer initiate a DUI investigation.

NL: Let’s start first with the whole DUI stop. The type that many of us in L.A. are used to, where you’re driving and all of a sudden you see a sign that there’s a sobriety checkpoint. What are your rights essentially when you see a sobriety checkpoint ahead? Is it illegal to turn your vehicle around to try to avoid it? I’m not suggesting that anyone should do that, but only to see what are the rights that are available to you as of the time that happens.

OH: Well as far as I know, a DUI checkpoint isn’t like a black hole. If you come within the vicinity you aren’t required to be sucked into its oblivion. If you do turn around, however, an officer can see that, and oftentimes they do have officers in the outskirts of those checkpoints looking for people who are turning around. If the officers do see you turning around, that can raise their suspicions, and they can attempt to pursue you, and see if you commit a Vehicle Code violation, and then pull you over and initiate a DUI investigation. Otherwise, if you drive into the DUI stop—you’re there—and you have to comply with the officer’s requirements.

Suspicion of alcohol / drugs: Police officer initiates DUI / DWI investigation

NL: Now once you’re either pulled over, or you come to a DUI checkpoint, or it’s an accident, there comes a point when the police officer suspects you’ve been drinking, or at least claims to have suspected that you were drinking. What types of questions are they allowed to ask at that point in the investigation?

OH: Well an officer can ask you anything. This is assuming that you’ve come into a legal checkpoint, or if you’ve legally been pulled over. An officer can ask you anything. The kind of questions they’ll ask is:

  • “Where are you coming from?”
  • “Have you had anything to drink tonight?”

OH: The “Where are you coming from” is a question meant to see if you’re coming from a bar, and that will make them suspicious. But essentially they’ll ask these questions of anyone if they’re slightly suspicious of a DUI, but they don’t really begin to trigger their DUI investigation, I think, until they see what I consider the Holy Trinity of objective symptoms of drinking.

NL: What’s the Holy Trinity?

OH: I call it the Holy Trinity, they’ll put this in the report:

  • They either smelled an alcoholic beverage on your breath;
  • They’ll notice that you had bloodshot, red, watery eyes; or
  • That you had slurred speech in responding to any of their questions.

NL: I have read, without exaggerating, about 5,000 to 10,000 police reports in my career thus far. I strongly believe that there must be some bank that they draw these from, or that they’re copy-pasted, because I cannot tell you how many times I’ve seen this described the exact same way. “I detected a strong odor of alcohol emanating from his person.” Do you have any idea how this happens, that all these police officers tend to describe this in the exact same way?

OH: I have some opinions. I’ve seen this happen, and I think there are two reasons for it. You’re never going to see a police report without these three things, because no officer is going to do a DUI investigation over someone that doesn’t seem like they’ve been drinking alcohol, so you’ll never see that police report. But on the other token, officers need to justify the DUI investigation, otherwise the results of their DUI investigation can be suppressed in what is called a suppression motion. That’s a Fourth Amendment violation motion. Because they can be said to have no reasons to prolong what should have been a routine traffic stop, and initiate a DUI investigation. So it depends on how cynical you are, really.

Reasonable suspicion to pull you over… Probable cause to arrest you

NL: This gets us to one of the main points here. So a police officer needs probable cause, is it, or reasonable suspicion of alcoholic impairment before they resume with any type of investigation, or asking you to submit to testing?

OH: If a police officer pulls you over, all he needs is some reasonable suspicion to pull you over, that you committed some Vehicle Code violation, or that you might be under the influence. Let’s just talk about that. What does it take to be pulled over? Some people get pulled over for very obvious “under the influence” reasons. They are straddling lanes, maybe they’re in between two lanes. Maybe they’re swerving within their own lane. Maybe they’re drifting into another lane. Some of them are speeding, or maybe some of them are just driving erratically. People can be stopped for other reasons. I’ve had many DUI cases where someone was stopped because they had no seatbelt, they had an expired registration, their tail light was out. I even had an individual pulled over because his trailer hitch covered a tiny portion of his license plate number. So once they get pulled over all that’s required is reasonable suspicion.

If the officer approaches the vehicle, and he smells the alcoholic breath, sees red, watery eyes, and he hears slurred speech, that can be enough for him to have further reasonable suspicion that you may be under the influence, and he can initiate a DUI investigation. They have that right. Now they don’t necessarily need probable cause until they arrest you. You’re not technically arrested, according to the police, until the end of a DUI investigation. So while they do need probable cause to arrest you, and take you to the station, the entire process, including the field sobriety test, the questions that they ask you, and even the preliminary alcohol screening breath test that they give you on the field, that’s all part of them establishing whether or not they have probable cause to arrest you, and take you to the station.

Exercising the Fifth Amendment right to remain silent vs. talking to the police

NL: One of our past episodes of The Legal Seagull, Episode 2, You Have the Right to Remain Silent, was about Fifth Amendment rights, the right to avoid self incrimination by not speaking to the police under many circumstances. Do you have the right at the time you’re pulled over to refuse to talk to a police officer?

OH: Absolutely. You obviously don’t want to be a jerk about it, because you’re not going to help your case. No one got out of a traffic stop, whether or not it’s a DUI, or just getting pulled over for a ticket, by being a jerk to the police officer, I can tell you that for sure. But you’re very much within your rights to say, “Excuse me officer, if you don’t mind, I’m going to decline to answer any of your questions.” If the officer thinks that you smell like alcohol, or that you’ve got slurred speech, then he can still initiate his investigation, despite you saying anything. You can remain silent, but that doesn’t mean that he can’t continue his DUI investigation.

NL: Even if you don’t smell like alcohol though, and you were to say to the police officer when he or she asks where you’re coming from, “Officer, I’m exercising my Fifth Amendment rights not to incriminate myself.” Couldn’t the mere refusal to answer a simple question like that be the basis for an officer’s reasonable suspicion that you must have been drinking?

OH: Not in court. If an officer puts in his police report that he pulled someone over because they weren’t wearing their seatbelt, it was late at night so he asked them, “Have you had any drinks?” Then the individual responded that, “You know, Officer, I’m not going to answer those questions, I don’t want to incriminate myself.” Without the other facts, the Holy Trinity, if you will; the breath, the slurred speech, the bloodshot eyes. If he was to initiate a DUI investigation, and take you back to the police station, and let’s say he takes your blood, and you have a 0.15% blood alcohol level, very likely in court that wouldn’t stand up. Because essentially he had no reason, he had no articulable facts to believe that you were under the influence of alcohol. He can’t use your Fifth Amendment right to remain silent as reason that you’re guilty.

NL: The most popular question that’s asked is, “Have you been drinking tonight?” to which it seems like everyone always responds, “I had two beers with dinner, Officer.” At that point, what happens next?

OH: Well, it really depends. Look, the officer has a great deal of authority in that moment. A lot of the better trained officers kind of look into your objective symptoms, just by standing right in front of you, and decide, you know what, I don’t think this person is under the influence of alcohol, and they can let you go. What we can assume for your hypothetical is that the officer is absolutely hell-bent on doing a DUI investigation on you, and whether or not he’s allowed to based on that. So if you do admit that you’ve had drinks, even absent the objective symptoms, that may be enough for him to initiate his DUI investigation.

Field sobriety tests: scientifically reliable and valid?

NL: Now let’s talk about these field sobriety tests, as we discussed earlier. What is the state of the legality of these types of tests, and their admissibility into court in California? I imagine that this might be similar in other states, but as you answer this I’m aware, and the audience should be aware, that you’re speaking about California law.

OH: Well, they’re certainly legal. These are tools in the officer’s tool belt with which for them to decide whether or not you may be under the influence of either alcohol, or drugs, or both. It’s all for developing probable cause that you’re under the influence. They’re absolutely legal, and it really depends on who you ask whether or not they are useful.

NL: Can they be refused?

OH: That’s a good question. An officer will never tell you that these tests are voluntary. However, you may absolutely refuse them in California without any consequence. But just know that if you refuse those field sobriety tests, and the officer does believe that you might be under the influence, you’re pretty much asking for a trip to the police station.

NL: Let’s assume, for purposes of this discussion, that in the first scenario, you agree to do these field sobriety tests. What are the different types of tests, and what is their reliability, or scientific basis if you will?

Horizontal gaze nystagmus test

OH: There is an entity called the National Highway Traffic Safety Administration. They essentially are the ones who are behind a lot of the rules, and regulations, and a lot of the uniform field sobriety tests that happen around the nation, amongst other things. They have spent lots of money, and there has been lots of money poured into them, to scientifically validate certain studies. While there may be many field sobriety tests that people talk about, there’s actually only three scientifically valid field sobriety tests.

The first one is a mouthful. It’s called the horizontal gaze nystagmus test. It’s essentially a test, without getting into too great of detail, where the officer is testing to see if you’re under the influence by looking at the behavior of your eyes as they track a stimulus; sometimes a pen light, sometimes just a pen, that the officer is holding out in front of your face. What the officer will essentially do is he’ll instruct you to stand up straight, put your arms at your side. He’ll hold the stimulus about 12 to 15 inches from the bridge of your nose, and he’ll move it from left to right. He’ll essentially be looking for nystagmus, which is a jerking motion in your eyes. There are a couple of clues that the officers actually look for. In fact, there are six clues that they look for. The science has shown that this is, actually, if done properly, one of the best field sobriety tests for predicting whether or not someone is under the influence.

There are actually scientific studies which lawyers are often trying to keep out of court that say that if it’s done properly, you may even be able to assign a blood alcohol level to certain results of this Horizontal gaze nystagmus test. The problem arises, however, because a lot of officers don’t know how to do it correctly. It requires precision. It requires precision with how far the instrument is held from your face, how far to the side you hold the stimulus, and so on and so forth. One thing that is ripe for cross examination in trial is whether or not the officer conducted the test properly. The science is clear: If they do not conduct the test properly then the results are drawn into question.

Walk-and-turn test

OH: The next test is the walk-and-turn. The officer has no obligation to give you these tests in any order. But the walk-and-turn is probably the most commonly known field sobriety test. The walk-and-turn test, the officer instructs you to stand with your feet one in front of the other, touching heel to toe, keeping your arms at your side. Then they tell you to count nine steps, tell you to do a turn. They instruct you on how to do the turn, and then to walk nine steps back. They are also looking for a number of clues. Those clues include whether or not you actually were able to touch your heel to toe on every step, whether or not you actually kept your arms at your side. Whether or not you stumbled, or whether or not you were falling from side to side. How you performed the turn, and in general, whether or not you were able to listen to the instructions.

The point of these field sobriety tests is that they are simulated, divided attention tasks. The idea is that driving is a divided attention task. You’re looking forward while you’re pressing the gas, while you’re also focusing on traffic around you, and trying to look at where you’re going . . .

The idea is that mental impairment, when you’re under the influence, begins to manifest before physical impairment. These tests are divided attention tasks that measure both mental impairment, and physical impairment. In the case of the walk-and-turn, they are essentially seeing: can you follow instructions, and do as the officer told you? (mental impairment). But also, be able to maintain a straight line, and turn without falling over yourself? (physical impairment).

One-leg stand test

OH: The final scientifically validated test is the one-leg stand test. I think this test is really unfair . . . Depending on your physical fitness level, depending on whether or not you’ve had any injuries, this test could be very difficult to perform, even for a sober person. Essentially, one-leg stand is, you’re asked to stand with your feet together, your hands at your side, and you’re asked to lift your leg up at least six inches, and point your toe forward.

Some officers will ask you to count to 10, some officers will ask you to count to 20. They instruct you if you put your foot down to just lift it back up and resume counting. Then, after that’s done, they’ll ask you to do it with your other foot. The idea is that they’re looking to see: Can you follow instructions, are you using your hands, despite the officer instructing you not to? Are you swaying from side to side? Are you able to count while holding your leg up, and pointing your toe forward, a divided attention task. There are a number of clues, and those clues have to be marked down, and noted properly, because that’s the only way this test has been scientifically validated.

Those are the three scientifically validated tests. Again, there are many things that can make these tests unuseful in a court of law, or for the officer. For example, if the test is not done in the right circumstances. If it’s not done on level pavement. I had a case where the officer had my client do a field sobriety test on a hill. Of course, he didn’t write that in his police report, but when he wrote the location of where he did the test, I looked it up on Google Maps and I saw that it was a hill. I showed him the map on the stand and asked him, “Isn’t this a hill?” Needless to say, that officer was a little red in the face, because it was a hill, and that absolutely affects your ability to do these tests properly.

In addition, whether or not you’ve had an injury can affect whether or not you do these tests properly, and whether or not the results are actually valid. Especially if you’ve had a head injury, like in the example of getting in a car accident. Obviously, if there’s a car accident, and there’s a suspicion of drunk driving the field sobriety tests are done, and that head injury can cause you to fail all the tests even if you are sober.

If the officer does these tests correctly, and in the correct circumstances, then what the National Highway Traffic Safety Administration says is that these three tests are scientifically validated to show if someone is too impaired by either a drug or alcohol. These are tools that the officer uses to form an opinion.

Now if the officer can say, or an expert can say, that they are scientifically validated, that just helps the jury consider the officer’s opinion with respect to those tests. It doesn’t change whether or not they’re allowed to be heard in court. With that said, it doesn’t need to be a scientific test to inform an officer’s opinion. But if it’s not a scientific test, then defense attorneys oftentimes will use that to say, “Well, if this test isn’t scientific, why are we using it to convict a man of a crime?”

The “recite the alphabet backwards” test

NL: So where does this leave the other tests? What about the recite the alphabet backwards test? Any scientific validity for that?

OH: Absolutely not. I think that’s one of the most unfair tests that you can have, because some people don’t even know the alphabet. No, but seriously, it’s a difficult test for a sober person to do. Try it right now. Try to recite the alphabet backwards. You’ll probably do it slowly, and the officer will probably be able to write things that make you look like you’re doing it slowly, and then say in court that you were probably under the influence of a drug or alcohol.

Romberg test

OH: There’s another test that’s commonly used called the Romberg test. You stand with your feet together, hands at your side. You close your eyes, and you tilt your head back, and count to 30. What the officer will tell you is that you want to estimate 30, and then tell the officer when you believe you’ve reached 30. The officer has a stopwatch right there, and he’s also finding out what 30 seconds actually is. The idea is, depending on what your jurisdiction is, or what the officer is using in his consideration, if you complete the test at plus or minus five seconds of 30 seconds. Sometimes, some officers believe 10 seconds of 30 seconds, then you’re within an acceptable range.

But if you, for example, tell the officer 45 seconds have gone by, but really you think it’s 30, probably you’re under the influence of some depressant. However, if you’re on, for example, a stimulant, like if you’ve done lots of cocaine, and then you get pulled over, you’ll probably count 5 seconds, and then you’ll be like that was 30 seconds. Then the officer will just look at you funny and be like, “This guy is probably under the influence of a stimulant.” So, the test, while it’s not scientifically validated, can help inform them of the type of drug that they’re on, even if it doesn’t mean that they’re scientifically validated.

Finger-to-nose test

NL: What about the “touch your nose and stick your tongue out,” or whatever it is?

OH: The “touch your nose” is commonly used . . . it’s another divided attention task, because you’re switching arm to arm, and attempting to touch your nose with your eyes closed, and your head tilted back. Again, if it’s not scientifically validated it doesn’t mean the officer can’t use it to form his opinion, and it’s doesn’t mean the officer can’t testify to it in trial, it’s just a matter of what weight the jury gives it at the end of its determination.

Breathalyzer (preliminary alcohol screening test)

OH: In California, unless you’re on DUI probation, you don’t have to do the preliminary alcohol screening device breath test at the scene of the incident, whether it’s being pulled over, or a car accident. The officer in fact has to admonish you that the test is voluntary, whereas, as I said before, they don’t admonish this for the field sobriety test.

Now understanding that, if you don’t do the preliminary alcohol screening device the officer is likely going to take you to the police station, and ask you to do one of the required by law, at least in California, breath or blood tests.

It’s completely up to you whether or not you want to do it. Some people make that choice, some people choose otherwise. Now, the preliminary alcohol screening device is probably the size, depending on the actual device, a little bigger than your fist, maybe a little bigger with its battery pack than that. The officer has it in his vehicle. It’s considered a field sobriety test by officers, meaning that it’s not considered a chemical test. However, the technology that it employs to determine your blood alcohol level is the same as the machine at the station, which is much bigger, much heavier, and a little more technical.

The idea behind a breath test is actually interesting. Because the idea is you’re breathing into a machine, and it’s determining how much alcohol you have in your blood. Without getting too detailed into the science of it, essentially these little alveolar sacs in your lungs can emit some level of alcohol from your bloodstream. There’s a partition ratio, essentially a ratio of the amount of alcohol that’s emitted into your lungs, compared to how much alcohol . . . in your blood . . .

. . .

When you breathe into the machine, that tiny amount of alcohol that’s in your deep lung air gets multiplied by, sometimes the number is 2,100, and that’s how they determine how much alcohol is in your blood. That’s essentially the idea of the machines.

. . .

Breathalyzers for marijuana

NL: Can [these breathalyzers] also detect marijuana, other drugs, or just alcohol?

OH: Those devices are essentially designed to test ethyl alcohol. That’s a chemical in alcohol. What happens is when you breathe into these machines there’s a fuel cell inside of the machine, and it responds to a number of chemicals, one of which is ethyl alcohol. It creates a charge, and the strength of that charge then indicates through a complicated algorithm, what your blood alcohol level is.

NL: I’ve been hearing about field tests now that are done to detect marijuana. Do you have any idea how those work?

OH: Yes. Essentially, what they do is they have a bag of Funyuns, and they hold it in front of you. If you cannot resist the Funyuns then they have determined that you are under the influence of marijuana.

Actually, it’s not like that at all. This is a brand new approach—certain law enforcement agencies are testing it out. There has been to date no way to test whether or not someone has marijuana in their system. In the field, they’re applying this swab . . . they swab your cheek, and they test the cheek cells, and they determine whether or not you may have marijuana in your system. Not a lot of law enforcement agencies use this, and as of now it’s nothing more than a tool for determining probable cause, whether or not you might be under the influence of marijuana. The ultimate tool is the blood test, sometimes the urine test.

NL: Before today you had told me some really interesting things about the marijuana test, how it might be a little bit less than scientific in determining impairment.

OH: Yes. Absolutely. The marijuana test is a very frustrating test for me as a criminal defense attorney. It essentially can’t show a lot depending on the test results, other than this is a chronic smoker who may or may not be high at the time of being tested. When your blood is tested for marijuana, it’s tested for two things . . . an active THC ingredient, and an inactive THC ingredient.

[The inactive THC ingredient is] called carboxy-THC, it’s a metabolite. The metabolite is like ashes to the fire. It can show that you have smoked maybe as recently as that same day, or two or three weeks prior. It’s a number that’s measured in nanograms per milliliter. Certain law enforcement agencies will look at that in determining whether or not someone might have been under the influence of marijuana.

Then there’s the active ingredient . . . most laboratories will only test the number of that active ingredient from 2 to 25 nanograms per milliliter. That active ingredient can show particularly if you have marijuana in your system, but not that you’re under the influence of marijuana. I want to make that distinction clear. Because just like alcohol, you can have alcohol in your system, but not be too impaired to drive, which is essentially the legal standard in California. What that means is there is no way to look right now, according to the scientific evidence, at the amount of active THC in your blood, and determine that you’re too high to drive essentially. What means, again, for people who are chronic smokers can be pretty bad. Let me give you some scenarios.

Let’s say you’re a medical marijuana patient, which is legal in California, and you smoke marijuana every day. Let’s say you smoke on Wednesday night to go to sleep because you need it to go to sleep. You wake up the next day, you feel fine, and you drive to the store, and for some reason you’re pulled over. Maybe because you’ve had marijuana in your car, from purchasing it from the dispensary, your car smells like marijuana. The officer says: “Have you had anything to smoke,” and you say, “No.” Let’s say the officer sees some other things that he thinks might be indicative of you being under the influence of marijuana. Understand that in this hypothetical, you’re not under the influence of marijuana—the last time you smoked was the night before.

He can take you to the station, he can do a blood test. Essentially what can happen for a chronic smoker is a very high result of the marijuana metabolite, the inactive ingredient, and a tiny, yet measurable active THC in your system.

The reason for that is that if you’re a chronic smoker the scientific studies have shown that chronic smokers can have a tiny amount of active THC in their blood constantly, because it kind of hides in their little fat cells, and is constantly being released. You may be charged with driving under the influence, and you may have to go to trial in order to prove your innocence because you’re a chronic smoker. That’s just the state of marijuana science right now when it comes to driving under the influence.

There is no per se limit in California; however, other states do have a per se limit. I know Colorado does, I know Nevada does. In fact, Nevada has one of the scariest per se limits, and I’ll explain why. Because they have a per se limit for the active THC, but they also have a per se limit for the inactive THC.

What that means is if you are a chronic smoker, and you smoke on Wednesday night, and then on Thursday you don’t smoke, and then on Friday you drive from California, where you were legally allowed to smoke, to Las Vegas. If you are pulled over and the officer suspects that you may be under the influence of marijuana, even though you are not, he can make you do a blood test, and you can be charged and convicted with a marijuana DUI because of the inactive THC that has been in your system from the marijuana you had been smoking even up to weeks prior. It’s a scary thought.

Prescription medications

NL: What is the deal with people who are chronic pain patients, either cancer, or any other disease, and they have a prescription for narcotic pain medications like oxycodone, Norco, Dilaudid—very powerful narcotics that in some ways impair your ability to drive . . . ?

OH: Well, California is clear, and I imagine this would be the case in the rest of the nation. Just because you have a prescription to take a certain medication . . . doesn’t mean you have an absolute defense to driving under the influence of that drug. In fact, many of these medications are very clear: “Do not operate heavy machinery or drive.”

Chemical sample at the police station: blood vs. saliva test

NL: Let’s assume that all this has happened already. You’ve been pulled over, talked with the police officer, done the field sobriety test, the breath test, and the officer has decided not to let you go, he has decided it’s time to take you to the police station. What happens when you get there? What else can they do to you there, and what are your rights in the police station?

OH: If the officer determines there is probable cause to believe you are under the influence of a drug or alcohol, he can take you to the police station . . . You need to provide a chemical sample. That could be in the form of a breath test, or if you like, you can do a blood test. If they suspect you of drugs and alcohol, or just drugs, they very likely will require you to do a blood test.

Blood test

NL: Is there a difference one way or the other over the accuracy, or how quickly it will show up in your blood, versus your saliva or urine?

OH: No. The idea behind the breath test is it is measuring the current blood alcohol content. One of the main real advantages of taking a blood test is that you can retest that blood at a later date if the law enforcement agency saves a sample of that blood. In California, they are required to do so at your request, and oftentimes many police stations will do so automatically. This matters, because . . . [t]hey are taking your blood, and oftentimes what they’ll do is they’ll put a preservative in your blood to make sure that the blood alcohol level doesn’t diminish. They’ll put the preservative in your blood, and then they’ll test it at a laboratory.

In fact, in Orange County, a lot of DUI convictions had to be overturned because they found that the laboratory that was testing blood for alcohol was doing so incorrectly, and with incorrect measurements by mistake. You’re really trusting this law enforcement laboratory to tell you if you’re under the influence of alcohol. So, it’s great to be able to have an independent laboratory test your blood, and test if there’s any irregularities that may show that this blood alcohol level is, for example, an anomaly.

The flip side is if you take the blood test, you’re spending the night at the station, because they can’t determine whether or not you are too impaired, or your blood alcohol level in general right away, so you have to stay the night, if that’s okay with you. I’m sure it’s not.

Breath test

OH: The breath test is a really simple test. You essentially blow into it twice. The reason you have to blow into it twice—I might have explained it before—is they need to ensure that the result is not an anomaly. Actually, in California, there are special regulations as to how the breath test needs to be administered, and how the machine needs to be maintained and calibrated. The reason it’s required for them to give you two tests is:

Let’s say there’s some spit, or maybe you have a cavity that has been holding some of that alcohol you drank an hour before. The reason there can be an anomaly in a chemical breath test is because you may have some alcohol in your spit. You may in fact have some reflux disorder that causes alcohol from your stomach to come up through your throat, and then enter the machine, and essentially give too high of a reading, a falsely high reading. You have to blow twice, and you have to wait two minutes in between each blow. In California, if the results are more than 0.02 points away from each other, then that test is said to be essentially invalid.

Refusing a chemical test

NL: Do you have the right to refuse a chemical test, or a blood test, at least in California?

OH: This is the point where you start to have no choice. Before you didn’t have to answer the officer’s questions, you didn’t have to do the field sobriety test, and you didn’t even have to do the preliminary alcohol screening device. But once you’re at the station, the officer asks you, “Do you want to give a blood or breath test?” In California, and I’m sure many other jurisdictions, if you refuse to give that test that results in an automatic one-year suspension of your driver’s license. So, you essentially don’t have a choice. In fact, in California if you’re charged with a DUI, and they found that you did willfully . . . you can have a mandatory jail enhancement as well.

In order to refuse—it’s actually quite interesting. They have to fully advise you of your rights before you can be said to have refused. They have to tell you that you have choice between a blood or a breath test. Unless they suspect drugs, then you only have a choice of a blood test. They have to tell you that you don’t have the right to an attorney at this point, and that if you don’t submit to the test if can be used against you in court.

They have to tell you that not submitting yourself to the test can result in a mandatory fine, or imprisonment. They have to tell you that not submitting to a test can result in a one-year license suspension. This is just in California. But the idea of fully advising someone of their rights to refuse is, I think, nationwide. If you are not advised of all these things, then you can’t be said to have willfully refused . . .

Potential defenses to a DUI charge

NL: Let’s assume you’ve had your breathalyzer test, spoken with the police officer, maybe even had some field sobriety tests, and the police officer has determined there is a good reason to bring you down to the police station to do further testing. What is the evidence that can be used against you in court?

OH: In court if you truly believe that either you’re not too impaired to drive, or that you don’t think the state of the evidence should be able to convict you of such a crime, and you decide to take this to trial, essentially you have two hurdles in California to overcome. Like I said before, there are two charges for every DUI that includes a blood alcohol level. There is:

  • Were you driving under the influence? Or
  • Were you driving with a blood alcohol level of 0.08% or higher?

Defining the term “under the influence”

OH: For the purposes of the jury, “under the influence” doesn’t mean “I could feel the effects of the alcohol,” it actually has a very specific legal definition.

In California, the definition [according to California Criminal Jury Instruction 2110] is that: “A person is under the influence if, as a result of drinking an alcoholic beverage . . . and/or taking a drug . . . his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution a sober person, using ordinary care, under similar circumstances.”

Essentially, that’s the standard that the jury has to decide whether or not you’re too impaired. At court, all the evidence we talked about today is going to be used against you. Every single piece from the reason you were pulled over, to the smell of an alcoholic beverage on your breath, slurred speech, and the bloodshot eyes, to the results of the field sobriety test, the preliminary alcohol screening test, and finally, the results of your breath and/or blood test.

Per se limit: 0.08% BAC

It’s important to note, and this has happened to me and my colleagues often. You only need to be convicted at a jury trial of one of those to be convicted of a DUI. What that means is: You can give a blood test, and it could come back with your blood alcohol level being 0.15%, but for some reason your tolerance is such that you’re able to be 0.15% and not be a danger to society, or to the community because you’re able to drive so safely, and your brain is able to operate so well.

If that’s the case, you can still be convicted of the DUI because your blood alcohol level was over 0.08%, even though the jury finds that you’re innocent of driving under the influence. It’s wild, and it does happen. Jurors do come back with that verdict, and unfortunately you still get convicted. The reason for that is because I think that the scientific evidence is important. The blood alcohol level is important because a lot of what is being used to prove that you’re driving under the influence, as opposed to driving with 0.08% or over, is subjective to the officer doing the tests.

While the officers will never admit on the stand that they are being subjective, they really are. Every officer performs these tests differently; every officer has a different idea of what these tests are showing. It can be quite abstract for a juror to wrap their head around when they’re listening to an officer spout off all the different clues that were exhibited in the horizontal gaze nystagmus test. Throughout many of my trials the moment the word horizontal gaze nystagmus test is uttered at least one person starts to fall asleep, if not more. So it’s not only difficult for them to grasp, it’s also very boring stuff, so that’s why a lot of jurors will hang their hats on the 0.08% or higher.

Challenging DUI / DWI test results at trial

With that said, at every stage there is a way to discuss potential weaknesses of these objective symptoms, or the field sobriety test. But specifically, there’s also a way to show that the machines themselves are not operating correctly.

Were machines properly calibrated and used?

As for the preliminary alcohol screening device, and the same for the breath test at the station, there’s a number of ways that defense attorneys bring up in court to challenge these devices. One of them is that they’re simply not accurate. The idea is let’s say you are a 0.05% blood alcohol level, that is your actual blood alcohol level, and you blow into a machine that is not properly calibrated, it can give an incorrect result. It may report 0.09% blood alcohol level.

In California, and I’m sure many other places, under Title 17 there’s a requirement that they calibrate these machines either, I think, every ten days, or 150 uses, something along those lines. So they are required to calibrate them quite often or rather accuracy-check them quite often. If they’ve gone for more than ten days at a time, or 150 uses without being accuracy-checked or calibrated, that could be something attorneys use in court to discuss why the results may be unreliable.

In general, there’s a jury instruction that if the machine, its maintenance, or its operation are not compliant with the California Title 17 requirements then you can question the results of that machine.

Non-compliant testing procedures

OH: . . . [A]nother way these tests can be challenged is if there’s no 15-minute observation period from the time the officer sees you to the time you give a breath sample, then they are not being compliant with Title 17 . . . as we discussed before, you may have acid reflux, you may have just vomited, you may have had an alcoholic drink in the middle, in the interim 15 minutes. If that’s the case, then you can’t be sure that mouth alcohol isn’t providing a false reading in that breath test. That’s another requirement that California has, and I think other places follow suit.

In addition to that, each test has to be done two minutes apart. There needs to be a certain volume of air that is blown into the machine. There are many, many things that criminal defense lawyers will try to look for to see if the tests are being done properly, and that’s just the tip of the iceberg for the breath test.

The rising alcohol defense

OH: Another defense that a lot of attorneys will use in court, and it’s quite interesting, is the rising blood alcohol defense.

[Let’s say] you go to a bar, you haven’t had anything to drink. Let’s say you just down two shots of whiskey. Then your friend is like, “We’ve got to go to this next bar across town.” You’re thinking, “Well, I just had two drinks, but I feel absolutely fine.” Then you get in the car, and you get pulled over. The officer smells alcohol, looks at your eyes, maybe hears something in your speech, and decides to begin a DUI investigation. You give a preliminary breath test, and the results are something like, let’s say 0.08%. Then, you go to the station, and you give another breath tests, and the results are 0.10%.

. . . [T]he criminal defense attorney will likely hire an expert . . . in how your body metabolizes alcohol. What an expert can oftentimes effectively argue is that from the moment you took those drinks, to the time of driving, your body was metabolizing the alcohol, and so your blood alcohol content was rising. When you got pulled over, you may have been somewhere at 0.07% or 0.06%. But the from the time you began the DUI investigation, which could sometimes take 20 to 30 minutes, to when you gave the preliminary alcohol screening device, you were no longer driving, but your body was metabolizing that alcohol.

When you gave the breath test at the field, it became 0.08%. Then your body was still metabolizing that alcohol on the way to the station, which is shown by the fact that when you go to the station—without having any drinks in the meantime—your blood alcohol level is now 0.10%. There is a blood alcohol curve that even the People and the prosecutor’s experts will draw, that shows the way that you somehow metabolized that alcohol.

Sometimes criminal defense attorneys can secure acquittals by drawing doubt as to whether or not you ever had a 0.08% blood alcohol level while driving, or if that level was only achieved while you were outside the car being investigated. Now, of course, a lot of people don’t like this defense because the person is still drinking and driving. But the law is clear: Were you driving with a blood alcohol level of 0.08% or higher?

Despite all the challenges attorneys make, despite all the defenses they have, and how charming (not myself obviously) but other criminal defense attorneys can be in the courtroom, if the evidence is there—the jury will convict. Jurors for the most part, after being properly selected, really are able to sift through all of that and just see if there’s enough evidence. That’s what it’s all about. If someone is acquitted at a DUI trial, it’s generally because the state of the evidence is just not good enough to convict a man of a crime. That’s really what we’re dealing with. There needs to be proof beyond a reasonable doubt. I think that’s one of the great things about America is that we require this great amount of proof before we take away someone’s liberty.

. . .

NL: Omid, thank you very much for taking the time to come on the show. It was great having you. A lot of very valuable information.

OH: Absolutely. I was happy to be here. I love your show, I’m an avid listener.


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* This is not legal advice, is not a substitute for the services of an attorney, and may or may not apply to the laws and procedures in your jurisdiction. We do not recommend that you represent yourself for a DUI / DWI or any other criminal charge.

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