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Rights Take Backseat on DUI Stops

Marie* got off work from her job as an architect at 5 o’clock Friday. She was excited not just because it was the start of a weekend, but because an old friend called with some good news. The friend invited Marie to meet her and some of their other friends at a local upscale eating establishment to catch up.

On the way home, Marie was stopped by the police for allegedly making a turn from the “right-turn-only” lane without signaling.

When the officer approached the car, he asked Marie for her driver’s license and registration. He looked at them and asked, “Ma’am, have you been drinking?”

Marie said that she had “one glass” of wine earlier in the evening, but had not had anything to drink for more than an hour. The officer told Marie to step out of the car.

Marie was confused. She knew something about drunk driving. She knew that she’d only had one drink, had switched to soda after that and eaten with the girls before finally getting into her car. She had signed the pledge to eliminate drunk driving. She knew that even the MADD — “insane,” her lawyer-husband called them — Mothers Against Drunk Driving website said that it took three drinks within one hour on an empty stomach for a woman her size to reach the 0.08% blood-alcohol level which was presumptive proof of intoxication in California. And she had had only one drink.

What Marie did not know is that the officer actually had no objective clues that Marie may have been drinking, but the town where Marie lived was hoping to receive a DUI grant. The grant was “free” money from the government for communities “to put additional resources on this very serious problem.” The police where Marie lived had started fishing for people to arrest. The idea was to increase the number of DUI arrests to “show” that their community had “a very serious problem,” so they could get money for more officers.

Another thing Marie did not know was that she did not have to answer the officer’s questions about her activities. She did not have to consent to do any coordination tests (usually referred to as “Field Sobriety Tests”) and she did not have to submit to a Preliminary Alcohol Screening breath test prior to her arrest unless she was on probation for a DUI already. (After you are actually lawfully arrested, you must submit to chemical testing in California, or suffer additional penalties, including a one-to-three-year license suspension.)

Marie also did not know that many of these tests are not very reliable. In particular, the Horizontal Gaze Nystagmus test, which is actually an examination and not a test, is highly inaccurate and usually administered by officers without the proper expertise to evaluate its results. Even the other coordination tests produce varying results in ordinary people under the types of conditions that exist during a typical DUI stop. Unfortunately, the “CSI-indoctrination” many jurors receive from television means the results of these tests will be given more weight than they deserve.

Marie’s “tests” took place next to a crowded roadside with many distractions. Aside from the embarrassment of everyone driving by while she was obviously performing “sobriety tests,” Marie was further distracted about the possibility of some errant driver plowing into her and the officer. Some of the coordination tests — don’t be confused by the constant use of the phrase “field sobriety tests” because these are actually just tests of agility and coordination —can be difficult for some people to “pass” even when sober. And the final judge of whether or not Marie “passes” the test is the police officer. The tests are to collect evidence to use against her, not for the officer to decide if she’s driving under the influence. He’s already decided that. It’s the reason he had her do the tests!

If Marie had known her rights, she would have been able torefuse the field sobriety tests and avoid, or take advantage of, the CSI effect at a subsequent trial. She didn’t. After Marie “failed” the tests, she was arrested, her car was towed and the nightmare began.

*Facts, including, but not necessarily limited to, name, job and other personal information have been changed in the above post to protect identities. This post is not intended to provide particularized legal advice. If you have a DUI case, contact me or another DUI attorney in your area for advice specific to your case.

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