Standardized Field Sobriety Test Defenses

Know Your Rights Before You Submit To A Field Sobriety Test

If suspected of Drunk Driving / DUI / DWI, a police officer usually requests you to do Standardized Field Sobriety Tests (SFST’s).

These nationwide, standardized DUI tests include the Horizontal Gaze Nystagmus, Walk and Turn and One Leg Stand.

Obviously one wants a good surface to attempt these acrobatics as it would be difficult to walk, turn or stand on one leg if the ground is bad.

As a reasonable defense to any poorly noted performance, a person can show through testimony and photographs that the surface was not conducive to proper performance.
There have been standardized manuals which include federal guidelines on drunk driving gymnastics testing surfaces.

In the SFST Instructor Manual, Session VIII, page VIII-36 under Instructor Notes: “Standardizing this test for every type of road condition is unrealistic. The original research study recommended that this test be performed on a dry, hard, level, nonslippery surface and relatively safe conditions. If not, the research recommends: 1) suspect be asked to perform the test elsewhere; or 2) only HGN be administered. However, recent field validation studies have indicated that varying environmental conditions have not affected a suspect’s ability to perform this test.”

In the SFST Student Manual, Session VIII, page VIII-11 under Test Conditions: “Walk-and-Turn test requires a designated straight line, and should be conducted on a reasonably dry, hard, level, non-slippery surface. There should be sufficient room for suspects to complete nine heel-to-toe steps. Note: Recent field validation studies have indicated that varying environmental conditions have not affected a suspect’s ability to perform this test.”

“The original research indicated that individuals over 65 years of age, back, leg or inner ear problems had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.”

Session VIII, page VIII-13 & VIII 14 under Test Conditions: “One-Leg Stand requires a reasonably dry, hard, level, and non-slippery surface. Suspect’s safety should be considered at all times.

“The original research indicated that certain individuals over 65 years of age, back, leg or inner ear problems, or people who are overweight by 50 or more pounds had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.”

The Preface in the SFST Student Manuals says, “The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.”

Knowing the rules for the Sobriety Test and the conditions in which the test was taken will allow for a better defense strategy.

About the Author:
Rick Mueller is a Top-Rated San Diego DUI attorney specializing in Drunk Driving, DUI & DMV Defense, and has been practicing law since 1983. For more information about Rick, please visit www.sandiegodui.com

Drunk Drivers On Facebook?

Huntington Beach City Council Rejects Proposal to Place Photos of Drunk Drivers on Facebook

Last November, Huntington Beach Councilman Devin Dywer asked the Huntington Beach Police Department to begin posting the names and mug shots of those arrested for drunk driving on the city’s Facebook page.  In an effort to “shame” these individuals, Dywer argued that such publicity would help deter people from violating California’s drunk driving laws.  After receiving backlash from community members and speaking with the chief of police, Dywer amended his request to include only the names/photos of “habitual” drunk drivers.

Now in fairness to the Councilman, Huntington Beach does have a serious problem with drunk drivers.  In fact, its alcohol-related accidents and DUI arrests are among the highest in California for a city its size.
But public humiliation?  You had to anticipate that that was going to be met with resistance!  And, indeed, it was.  Tuesday night, the city council rejected Dywer’s proposal.  The council made it clear that it didn’t believe the drastic measures would help, but would instead damage the city’s image and embarrass the families of alcoholics.

Public humiliation has never really received much approval in California.  Proponents have suggested special license plates, bumper stickers and even on-line registries for those arrested for DUI.  Yet opponents argue that this is akin to sentencing someone without a trial.

If public shaming in California will ever actually become a reality, my guess is that it would only involve convicted individuals…and even then, it may be limited to those who have repeatedly violated California’s drunk driving laws.

And this is just another reason why it is so important to fight a California DUI arrest.  You never know what types of increased penalties the state will decide to enforce, which is why fighting your California DUI arrest now is the best course of action.

If you are arrested for drunk driving, it is critical that you immediately speak with a skilled California DUI defense attorney.  Only a lawyer who specializes in this technical and complex area of the law knows how to present the most effective defenses to help ensure that you beat your DUI charges…and avoid any and all potential penalties.

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Source: DUI Process

California DUI Laws

California DUI law states that per § 23152(b) of the California vehicle code (California 'per se' law), it is against the law to operate a motor vehicle with a blood alcohol concentration of .08% or greater.

If you are arrested on a drunk driving charge in California, you will also be charged with being in violation of California vehicle code § 23152(a) (California Driving Under the Influence).   California vehicle code § 23152(a) states that it is against the law for any person to operate or be in physical control of a motor vehicle while they are under the influence of alcohol or a controlled substance.

Even if you are not in violation of California vehicle code § 23152(b) (operating a motor vehicle with a blood alcohol concentration of .08% or greater); you could still be charged with violating California vehicle code § 23152(a) because even though your blood alcohol concentration level was below the legal limit of .08%; through the arresting officer's observation of your mannerisms or by your failing any part of the field sobriety test, the officer felt that you were intoxicated and should not be operating or in control of a motor vehicle.

TIP:  It's very important that you contact a California DUI lawyer to discuss your case. Scheduling an initial consultation is free and you'll get some good information about your options. Contact one of our California DUI lawyers today.

Being in violation of California vehicle code § 23152(a) and/or § 23152(b) are the criminal charges you will be facing for driving under the influence, you will also face a separate sanction against your driving privileges by the California DMV for violating the California 'per se' law.

California DMV Hearing

The arresting officer is required by law to immediately suspend or revoke your driver's license and send a copy of your suspension along with your driver's license and a copy of the police report to the California DMV.  The DMV will then conduct its own investigation into the evidence against you that was provided by the arresting officer to determine whether or not to uphold the suspension or revocation of your license.

Upon suspending or revoking your license the officer will issue you an Order of Suspension/Revocation, this will serve as your temporary license for the next 30 days, on the 31st day the suspension or revocation will go into effect.  If the arresting officer did not issue you an Order of Suspension/Revocation, the California DMV will mail you one.

You only have ten days from the date of your license suspension or revocation to request an administrative hearing with the California DMV.  If you do not request an administrative hearing within that ten day period, the DMV will uphold the suspension or revocation and you will not be able to drive.

An administrative hearing is your chance to present evidence that contradicts the evidence provided to the DMV by the arresting officer in an effort to show that the suspension or revocation is not justified and that your driver's license should be reinstated.

If you hope to have any chance of winning your administrative hearing, you must have a skilled DUI attorney who has experience in representing clients at administrative hearings, schedule and represent you at the hearing.  You do not want to request a hearing and represent yourself at the hearing, this is a no win situation, you also want to make sure that the lawyer that you choose has experience when it comes to representing clients at administrative hearings.

By default the California DMV will schedule you for a telephone hearing unless you or your lawyer request an in-person hearing.  You and your lawyer want an in-person hearing, not a telephone hearing, it is impossible to effectively present evidence in your favor and contest the evidence against you over the phone.

When you or your attorney schedule your administrative hearing, you need to request copies of the DMV's evidence so that you and your lawyer can establish an effective defense against the DMV's evidence before your hearing date.

Obtaining A California Restricted License

Your DMV hearing is not the time or place to request a restricted license.  If the hearing officer upholds the suspension of your license, you may apply for a restricted license at any California DMV office.  To qualify for a restricted license, this must be your first DUI offense within the past ten years and you completed a chemical test, you registered at least .08% on the test and you were at least 21 years of age or older at the time of the test.  A restricted license may only be used to drive to and from work and your first offender DUI program.

In order to obtain a noncommercial restricted license, you must:

1. Enroll in a state approved first offender program.  (You must inform the program administrator that you intend to apply for a restricted license.)
2. Ask the program administrator to file a an electronic Proof of Enrollment Certificate (DL 107) with the DMV.
3. File proof of financial responsibility with the DMV by obtaining California SR22 insurance. (Your insurance provider will either file the SR22 form directly with the DMV or provide you with a copy of the form to file with the DMV.)
4. You will also be required to pay a $125 reinstatement fee to the DMV.
5. You will have to wait until the end of the 30-day suspension period before applying for your restricted license.

A first offense DUI charge in California means that you have had no prior DUI convictions within the past 10 years.  A first offense charge is considered a misdemeanor charge and carries the following penalties:

California First Offense DUI

Jail time:  The amount of jail time for a first offense charge will be between 48 hours or up to 6-months in jail.  Depending on the circumstances surrounding your case, the court may grant you a 3 to 5 year probationary period in lieu of jail time.  The probation will be court probation, meaning that you will not have to report to a probation officer.

Fines:  The fines for a first offense charge will be between $390 - $1,000. The court will allow you to pay your fines over a period of time for an additional fee.  If you do not wish to incur an additional fee, all fines must be paid within 45 days.  Depending on the court, you may be able to perform community service to work off part of the fine.

License Suspension:  If you are at least 21 years of age or older and you submitted to a chemical test and your BAC reading was .08% or greater, your license will be suspended for 4-months.  If you are under 21 years of age and your BAC reading was .01% or greater, your license will be suspended for 1-year.

If you are at least 21 years of age or older and refused or failed to complete a chemical test, your license will be suspended for 1-year.  If you are under 21 years of age and refused or failed to complete a chemical test your license will be suspended for 1-year.

If the California DMV grants you a restricted license, that license only allows you to drive to and from work and/or school.  You will also be required to show proof of financial responsibility in the form of an California SR22 insurance policy with the California DMV before they will issue you a restricted license or reinstate your license at the end of your suspension period.

If your blood alcohol concentration was .15% or greater at the time of arrest, the court may require you to have an ignition interlock device installed on your vehicle.

Alcohol Treatment:  A first time offender who's BAC level was below .20%; will be required to attend a state approved 30-hour first offender program.  If your BAC level was above .20%; you will be required to attend a 60-hour state approved first offender program.

California Second Offense DUI

A second offense DUI charge in California means that you have been convicted of one prior DUI conviction within the past 10 years.  A second offense charge is considered a misdemeanor charge and carries the following penalties:

Jail time:  The amount of jail time for a second offense charge will be between 96 hours or up to 6-months in jail.  Depending on the circumstances surrounding your case, the court may grant you a 3 to 5 year probationary period and reduce the length of the jail sentence.  The probation will be court probation, meaning that you will not have to report to a probation officer.

Fines:  The fines for a second offense charge will be between $390 - $1,000.  The court will allow you to pay your fines over a period of time for an additional fee.  If you do not wish to incur an additional fee, all fines must be paid within 45 days.  Depending on the court, you may be able to perform community service to work off part of the fine.

License Suspension:  If you are at least 21 years of age or older and you submitted to a chemical test and your BAC reading was .08% or greater, your license will be suspended for 1-year.  If you are under 21 years of age and your BAC reading was .01% or greater, your license will be suspended for 1-year.

If you are at least 21 years of age or older and refused or failed to complete a chemical test, your license will be revoked for 2-years.  If you are under 21 years of age and refused or failed to complete a chemical test your license will be revoked for 2-years.

Alcohol Treatment:  A second time offender will be required to attend and complete a state approved 18-month multiple offender program.  The requirements of the program are: 52 hours of group counseling, 12 hours of alcohol and drug education, 6 hours of community reentry monitoring, and biweekly individual interviews during the first 12-months of the program.

California Third Offense DUI

A third offense DUI charge in California means that you have been convicted of two prior DUI convictions within the past 10 years.  A third offense charge is considered a misdemeanor charge and carries the following penalties:

Jail time:  The amount of jail time for a third offense charge will be at least 120 days or up to 1-year in jail.  Depending on the circumstances surrounding your case, the court may grant you a 3 to 5 year probationary period and reduce the length of the jail sentence.  The probation can be either court probation or formal probation, meaning that you will have to report to a probation officer.

Fines:  The fines for a third offense charge will be between $390 - $1,000. The court will allow you to pay your fines over a period of time for an additional fee.  If you do not wish to incur an additional fee, all fines must be paid within 45 days.  Depending on the court, you may be able to perform community service to work off part of the fine.

License Suspension:  If you are at least 21 years of age or older and you submitted to a chemical test and your BAC reading was .08% or greater, your license will be suspended for 1-year.  If you are under 21 years of age and your BAC reading was .01% or greater, your license will be suspended for 1-year.

If you are at least 21 years of age or older and refused or failed to complete a chemical test, your license will be revoked for 3-years.  If you are under 21 years of age and refused or failed to complete a chemical test your license will be revoked for 3-years.

Alcohol Treatment:  A third time offender may be required to attend and complete a state approved 30-month multiple offender program.  The requirements of the program are: 76 hours of group counseling, 12 hours of alcohol and drug education, 120-300 hours of community service and regularly scheduled interviews.

California Fourth Offense DUI

A fourth offense DUI charge in California means that you have been convicted of three prior DUI convictions within the past 10 years.  A fourth offense charge may be considered a felony charge and can result in up to 3-years in a state prison.

California SR22 Requirements

Before the California DMV will reinstate your license following your suspension or revocation period or before issuing you a restricted license, they will require you to file an SR22 form with them before issuing you a new license.  You will be required to carry your SR22 insurance for a period of three years.

At anytime during this three year period if there is a lapse in your SR22 coverage, your insurance provider is obligated by law to immediately inform the California DMV of the lapse.  If a lapse in coverage occurs, the California DMV will immediately suspended your license and you will be required to re file an SR22 form with the DMV before they will issue you another license.

Since you are going to have to have your SR22 insurance for a period of three years, it is important to find the cheapest policy you can before choosing one.  DUI Process has partnered with the largest and most trusted SR22 insurance provider in the state of California and has worked out a special discount only available here for our website visitors

Being Investigated For A DUI? Remain Silent!

Remain Silent!

As the holiday season approaches, California law enforcement officials will be on the lookout for people who find themselves driving under the influence.  Additional DUI / sobriety checkpoints, DUI saturation patrols, and additional cops will be deployed in an effort to clampdown on DUIs.  So sober drivers along with intoxicated drivers will undoubtedly be stopped as well as investigated for this offense…and that before the officer even speaks to the driver…he/she will assume that he’s going to be able to complete a DUI arrest.

My advice?  Don’t help encourage that judgment!  As a Los Angeles DUI defense lawyer I repeatedly see people who may have had their particular charges dismissed…or possibly never even filed…had they simply remained silent.

Remaining silent is your right…you have no responsibility to aid the cops out by incriminating yourself.  The catch is that many individuals think that they will be able to reason his or her way out of the DUI arrest.  Believe me, this isn’t the case!

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POLITELY advise the officer that you want to exercise your right to stay silent.  Don’t respond to any questions about when you were drinking, what amount you were drinking, where you were drinking, etc.  Just politely keep reminding the police officer that you need to remain silent.  In all likelihood, you will probably be arrested.  Notwithstanding, your silence will make it more difficult for the prosecutor to obtain a conviction.

And equally important is this advice – if you do choose to answer questions, do not lie to the cop.  If you deny drinking when you truly were…and ultimately undergo a chemical DUI blood or breath test…your credibility will be shot if you produce a result that is above California’s lawful limit.  The prosecutor, judge and jury may have difficulty accepting with what you report and may even be more inclined to believe the detective than they otherwise would have.

The bottom line is if you stay silent, it’ll be considerably more challenging for the prosecutor to convict you of driving under the influence.  Without a timeline of when you were drinking, what you were drinking, what medications you were taking, when you last slept, etc., they can only rely on the officer’s analysis as well as the results of the chemical test.  Both of these can be easily challenged by a knowledgeable DUI defense legal professional.  And the rest then turns into part of the defense.

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