Articles Posted in Sobriety Tests for BAC/ Implied Consent

Now that recreational marijuana is legal in California, law enforcement agencies are racing to train officers in roadside drug recognition. Since pot became legal, the Orange County crime lab has seen a 40 percent increase in requests to process blood samples related to driving under the influence of marijuana arrests. Whether there actually is an increase in marijuana-influenced drivers or the cops have increased their suspicions since legalization, one thing is for sure: the roadside detection of driving under the influence of marijuana is much harder for the cops than figuring out if a driver is under the influence of alcohol. Hence, the rush to train more officers as drug recognition experts.

The officers, who are trained to become drug recognition experts, receive an advanced certification which allows them to testify in court as an expert. While the specific focus on driving under the influence of marijuana is prompting the rush to certify more experts, these experts are trained to recognize symptoms of not only Cannabis use, but of six other categories of drugs:

  • Central Nervous System Depressants (examples include commonly prescribed drugs such as Prozac, Zoloft, and Paxil);

WHAT SHOULD YOU DO IF YOU ARE PULLED OVER AFTER DRINKING

After an enjoyable dinner party where several bottles of wine were opened—feeling full in body and mind, but not particularly feeling effects of that wine, or so you think—you hop into your car and head home. A couple of blocks from home, you see one of Orange County’s finest flashing emergency lights behind you. The scream of the siren follows shortly thereafter. Your mind races. Did I drink too much? Why am I being pulled over? Am I going to get a DUI?

The outcome may depend on your response and even if you are arrested, the way you handle yourself during the vehicle stop is crucial. The first thing you must do is safely pull over using the appropriate turn indicator as you pull over. Don’t think that because you are only blocks from home, you can pull into your driveway and be legally “safe.” It is a common misconception that the police cannot arrest you without a warrant on private property.

HOW ACCURATE ARE FIELD SOBRIETY TESTS?

One of the first things an officer will ask a driver to do when he or she suspects the driver is under the influence is to perform field sobriety tests or FSTs for short. In California, drivers are not required to submit to these tests but the officer is not required to inform the driver that the tests are not required. Consequently, most drivers will submit to the tests, either thinking they must or because they are afraid to say no, or because they believe they can pass the FSTs and be on their merry way (that’s a false assumption). FSTs are almost designed to be failed—even many entirely sober people will “fail” the tests—and the only real purpose of FSTs is to give the officer a reason to arrest the driver and to provide the prosecution with evidence.

But how accurate are FSTs anyway? The Standardized Field Sobriety Test, which is endorsed by the National Highway Traffic and Safety Administration (NHTSA), and used in California, consists of three separate tests: The Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT). and the One-Leg Stand (OLS). The HGN measures eye movements in which the officer is looking for three indicators that suggest alcohol impairment. The WAT is the one most people associate with roadside drunk driving tests: the driver is asked to walk heel-to-toe in a straight line and to return in the same manner. The OLS requires the driver to stand with one foot approximately six inches off the ground and to count to 30. Any swaying, loss of balance, or inability to stay on one foot for 30 seconds may indicate alcohol impairment. According to the NHTSA, these three tests accurately detect alcohol impairment in 91% of all cases. According to the NHTSA, non-standard FSTs are unreliable.

A TOSTITOS BREATHALYZER?

In strange DUI news, Tostitos, yeah, the corn chips, is marketing a limited-edition “Party Safe” version of its Tostitos chip bag that …. get this: serves as a breathalyzer. Well, not really a breathalyzer but the bag contains a sensor that will detect alcohol on a person’s breath. If the sensor detects alcohol on the person’s breath, the bag’s logo design that includes a green circle will turn the circle red with a warning message “Don’t Drink and Drive.” An Uber code, which can be tapped by a smartphone to send out a driver to the location (using near-filed communication technology) will also appear on the bag. And in order to entice the drinker to call Uber instead of driving, the Uber code includes a discounted Uber ride. Gimmicky, you bet. But Tostitos (and Uber) may be on to something.

While this particular technology is rudimentary and doesn’t actually measure the blood alcohol content, as a breathalyzer does, it does detect whether there is alcohol on a person’s breath. You might surmise that the person already knows if he or she has been drinking, but this serves as a not-so-subtle reminder that maybe they shouldn’t be driving. The Tostitos bag was produced in limited quantities specifically for the Super Bowl but might this be a harbinger of things to come?


WEARABLE BLOOD ALCOHOL MONITORS

You’ve seen the ankle bracelets that some people are ordered by the court to wear to monitor their whereabouts while under house arrest. And you are probably aware of the Ignition Interlock Devices (IID) that are being ordered in many counties in California after conviction on a DUI. Here’s a new one that will probably become a new tool in the state’s ever sophisticated ways to regulate drunk driving: Wearable Blood Alcohol Monitors.

Several wearable blood alcohol monitors have been developed and will soon be available to law enforcement and the public. One of these devices—a type of skin patch— has been developed by UC San Diego engineers. It is described as a “temporary tattoo” that sticks to the skin and electrochemically detects alcohol levels through the wearer’s sweat. Maybe they decided to describe it as a “tattoo” rather than a skin patch to make it sound more appealing. In order to read the results, a small electronic circuit board is connected to the tattoo by a magnet and the results are communicated via Bluetooth.

SUPREME COURT RULES THAT DUI BLOOD TEST REQUIRES A WARRANT

On June 23, 2016, the United States Supreme Court issued a decision in the case Birchfield v. North Dakota, which will affect California’s “implied consent” DUI laws. The Court held that the Fourth Amendment to the United States Constitution permits a DUI breath test incident to an arrest without the need for a warrant but a warrantless blood test is unconstitutional. Both are considered a search governed by the Fourth Amendment but the Supreme Court found its decision on a privacy rights analysis vis-a-vis the need to obtain a BAC reading. Finding that a breath test is not a significant intrusion on one’s privacy but the piercing of skin and extraction of a part of the subject’s body is, the Supreme Court held that the extraction of blood to measure BAC is not a reasonable alternative in light of the availability of the less intrusive method.

The case was not just an academic exercise; the Supreme Court took this case in order to decide if states can make it a crime to refuse BAC chemical testing. Based on the Court’s analysis, the Supreme’s held that a motorist under arrest for DUI cannot be held criminally liable for refusing a blood test but can be held criminally liable for refusing a breath test.

A couple of month ago I blogged about the difficulty law enforcement has proving that someone is driving under the influence of marijuana. The cops may suspect the person of driving under the influence of marijuana but because there is not a readily available and reliable chemical test as there is for alcohol it is sometimes difficult for the prosecution to secure a conviction.

That may soon change. A bill introduced in the California Senate in February 2016 would allow officers to use a hand-held electronic device which is able to test for the presence of marijuana and other drugs by use of an oral swab. The bill, if it becomes law, will allow chemical testing for drugs in the same way that chemical tests for alcohol are now used. As with alcohol testing, refusal to submit to the drug test would result in enhanced penalties including the mandatory suspension of the person’s license to drive for one year. The bill, SB 1462 is currently in committee.

Critics of the swab testing maintain that the technology is unproven and that the accuracy of such tests has not been scientifically demonstrated. The swab tests are being used in test programs around the country, including in some California counties. These programs are being monitored by the federal government. Should SB 1462 become law, there will surely be challenges to the swab tests and it may take years for the challenges to wind their way through the appellate courts.

CAN A BREATHALYZER DEVICE BE TRICKED?

You may have heard the “tricks” to defeating a breathalyzer test: place a copper penny under your tongue when you blow into the device, drink mouthwash before being tested (surreptitiously, of course), eat breath mints, hold your breath or use other breathing techniques before or during blowing, burp while blowing into the machine (however that would be accomplished), and some other wacky tricks. None of them will work!

The breathalyzer, as it is commonly called, actually describes a number of different breath testing devices that use a variety of techniques to measure the blood alcohol concentration (BAC) in a person’s blood. The device might employ a chemical test, but some devices use infrared spectroscopy or fuel cell technology. All of these devices require the subject to blow into a mouthpiece. The breath tested comes from the subject’s lungs.

WHAT HAPPENS IF YOU REFUSE TO SUBMIT TO A CHEMICAL TEST AFTER A DUI ARREST?

Most California drivers are aware that the law does not convey the same Constitutional rights, which are normally afforded to an arrestee, when the person is arrested for driving under the influence. For example, the driver does not have an immediate right to an attorney or the right to remain silent. Most important, a driver lawfully arrested for suspicion of driving under the influence must submit to a chemical test or face a mandatory suspension of his or her driver’s license.   This is known as the “implied consent” law. Even when a driver refuses the test but then changes his or her mind and submits, it will still be considered a refusal.

The law requires that the arresting officer clearly advise the driver that a refusal will result in a suspension of the driver’s license to drive. (Vehicle Code §23612(a)(1)(D).) However, the warning is enough; the officer is not required to obtain the driver’s acknowledgement that the driver understands the consequences of refusal.

THE “RISING BLOOD ALCOHOL” DEFENSE

If you are arrested for driving under the influence of alcohol and your blood alcohol level is only slightly above the legal threshold of 0.08%, your attorney might consider what is called the “rising blood alcohol” defense. Without getting into the scientific details, this defense asserts that at the time you were driving, your blood alcohol level was lower than the level you registered at the time of your arrest.

Depending on a number of circumstances including your weight, whether you were drinking on an empty or full stomach, and other factors, the alcohol you imbibe can take 30 minutes to an hour or more to rise to its peak blood alcohol level in your body.