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Field Sobriety Tests

You are not required to perform any field sobriety tests, that includes the PAS (pre alcohol screen test) the “breathalyzer”. These test were designed for you to fail and provide proof that the police had probable cause to arrest you.

If you had to pass these tests to get a drivers license there wouldn’t be a traffic problem in the Bay Area.

DUI Checkpoints

In Ingersoll v. Palmer (1987), 43 Cal.3d 1321, the California Supreme Court considered whether sobriety checkpoints were constitutional. The Supreme Court held that sobriety checkpoint detentions are not governed by the standard set forth in In re Tony C. (1978) 21 Cal.3d 888, "requiring an individualized suspicion of wrongdoing", and thus there does not need to be a reasonable suspicion that the detained drivers have or may be involved in criminal activity. Instead, the reasonableness of the detention is determined by balancing the societal need against the intrusion involved. Thus, where the societal interest being protected is great and the intrusion is minimal, then the detention is reasonable under the Fourth Amendment.   Ingersoll, supra, explained that the primary purpose of a sobriety checkpoint is not to detect evidence of crime or arrest drunk drivers but to "promote public safety by deterring intoxicated persons from driving on the public streets and highways." (Id. at p. 1328).

     However, the power to randomly detain citizens is limited.  A Court must weigh the gravity of the governmental interest or public concern served, and the degree to which the program advances that concern, against the intrusiveness of the interference with individual liberty.  (Id. at p. 1321).  When balancing the societal needs against the intrusion of a number of law abiding citizens, the Ingersoll court identified eight factors to "provide functional guidelines for minimizing the intrusiveness of the sobriety checkpoint stop." (supra, at p. 1341). These factors are: (1) decision making at the supervisory level; (2) limits on discretion of field officers as to who is to be stopped; (3) maintenance of safety conditions; (4) reasonable location of the checkpoint; (5) a reasonable time and duration of the checkpoint; (6) indicia of the official nature of the roadblock; (7) the length and nature of the detention; and (8) advance publicity regarding each checkpoint. (supra, at pp. 1341-47). 

     Subsequently, in People v. Banks (1993) 6 Cal.4th 926, the California Supreme Court revisited the sobriety checkpoint issue. In Banks, the Supreme Court considered whether advance publicity, which is one of the Ingersoll guidelines, was a constitutional prerequisite to the operation of a sobriety checkpoint. In addressing the issue, the court again emphasized that " 'federal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." [Citations.]' " (Banks, supra, at p. 936 emphasis added).  The Court concluded “that the operation of a sobriety checkpoint conducted in the absence of advance publicity, but otherwise in conformance with the guidelines we established in Ingersoll v. Palmer, supra, 43 Cal.3d 1321, 241 Cal.Rptr. 42, 743 P.2d 1299, does not result in an unreasonable seizure within the meaning of the Fourth Amendment to the United States Constitution.” (Banks, supra at p. 949).  “As Ingersoll makes clear, sobriety checkpoints are constitutional so long as certain guidelines are followed. The eight factors identified in Ingersoll provide "functional guidelines" to assess the intrusiveness of a checkpoint”. (Roelfsema v. Department of Motor Vehicles  (1995) 41 Cal.App.4th 871, 877, 48 Cal.Rptr.2d 817, 820).

Blood Test Report Admissible in DMV Hearing

One reason the Courts have consistently let hearsay admitted in an administrative hearing is whether the level of hearsay is a public record by a public employee.  Evidence Code section 1280 is very clear.  A writing must be made by a “public employee” while within his or her “scope of duty”.   Furman vs. DMV (2002), is directly on point.   The department has no evidence to establish that the authors of the lab report in this case were “public employees” performing an “official duty”.  To find that either there was a “public employee” performing his or her “official duty”, based upon the lab report, is clearly wrong.   A corporation is considered a “separate legal entity” apart from a governmental agency. For example, you would be hard pressed to find “Alameda County Crime Lab, Inc.”.  Also, the Department cannot conclude, based upon the evidence, that there may be some agreement between a public agency and a private company to outsource the lab work for Fremont Police or the Alameda County Sheriff’s Department.  First, the record is void of even inferential evidence to show some agreement, and even if there was an explicit agreement, there is no case that stands for the proposition that a private company employee is a defacto “public employee” performing his “official duty” under any section of the Evidence Code. 

Cop Qualified to Give Breath Test

The arresting officer might try and obtain a breath test from the licensee prior to the arrest. The machine used is called a Preliminary Alcohol Screen (PAS) test. In People v. Williams, (2002) 28 C.4th 408, the California Supreme Court held that the results of a PAS test are admissible in a DUI case for the purpose’s of establishing the person’s BAC if a sufficient foundation is established under either People v. Adams (1976) 59 C.A.3d 559 or by proving compliance with Title 17 in the administration of the test. Thus, the California Supreme Court has determined the PAS test has similar evidentiary value to any post-arrest blood, breath or urine test.

The officer might state that she is qualified to operate this equipment and that the test was administered pursuant to the requirements of Title 17 of the California Code of Regulations. This statement (which is common) that the officer is qualified does not include a statement that she was trained by a licensed laboratory as required by Title 17. Further, the statement is a self-serving unfounded legal opinion. It is vague. The reference to “qualified” could mean only that she read the operators’ manual from the manufacturer, and nothing more.

Right to a Jury Trial for Federal DUI

Because a DUI without injury is classified as a Class B misdemeanor with a maximum punishment of 6 months (no matter how many convictions), the offense is deemed presumptively petty and there is no right to a jury trial. Blanton v. North Las Vegas (1989) 489 U.S. 538. This presumption may be rebutted, and the right to a jury trial obtained only if the accused “can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.”

DUI under 21 in California

A violation of CVC 23136, which prohibits a person under 21 from driving a vehicle with a BAC of 0.01% or more, is now an infraction subject to both criminal fines and the APS suspension procedure. For offense dates prior to Jan 1, 2007, such offenses are subject to civil penalties only (ie., an APS suspension.)
CVC 23140 makes it an infraction for a person under 21 to drive with a BAC of 0.05% or higher.

Let the Jury Decide

In People v. Randolph (1989), the Ventura County Appellate Department stated that it is not a reviewing court’s proper role to say that a 0.10% breath test result, with a prosecution admitted error of 0.01%, must lead to a reasonable conclusion that the defendant’s blood alcohol level was below 0.10% at the time of driving. Whether or not such an interpretation of the evidence was reasonable for purposes of circumstantial evidence instruction, was for the jury to decide and not a trial or appeal court says Randolph.

Breath Test Results Near the Limit

In People v. Rangel (1988), the court held that a breath analysis with 0.10% and 0.11% results, accurate to within 0.02% according to the prosecution expert, is legally sufficient evidence of a BAC of 0.10% or more.

Blood Test Results Near the Limit

In People v. Campos (1982), the court found that direct blood analysis with a 0.10% result, accurate to within .005% according to the prosecution expert, was not legally sufficient evidence to prove BAC of 0.10% or more. At the time, 0.10% was the legal limit. Now it is 0.08%.

Basic Drunk Driving Offenses

I represent clients who have been arrested for DUI. Veh.C. 23152(a) and 23152(b). The difference between subdivisions (a) and (b) is that evidence of alcohol or drug impairment is necessary for a conviction of violating subdivision (a), whereas under subdivision (b) only a minimum level of blood or breath alcohol concentration need be proven. Subdivision (a) makes it illegal to drive a vehicle while under the influence of alcohol. Subdivision (b), the “per se” statute, makes it illegal to drive a vehicle with a blood or breath alcohol concentration (BAC) of 0.08% or more.

 

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