Why Police Lie Under Oath… (perhaps they are not the “heroes” they would like us to believe that they are.)

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http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-under-oath.html?pagewanted=1&_r=1&hp

 

Why Police Lie Under Oath<NYT_BYLINE>

By MICHELLE ALEXANDER
Published: February 2, 2013

<NYT_TEXT><NYT_CORRECTION_TOP>

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

Wesley Allsbrook

 

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly.  Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

The New York City Police Department is not exempt from this critique. In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Remarkably, New York City officers have been found to engage in patterns of deceit in cases involving charges as minor as trespass. In September it was reported that the Bronx district attorney’s office was so alarmed by police lying that it decided to stop prosecuting people who were stopped and arrested for trespassing at public housing projects, unless prosecutors first interviewed the arresting officer to ensure the arrest was actually warranted. Jeannette Rucker, the chief of arraignments for the Bronx district attorney, explained in a letter that it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests, Ms. Rucker claimed, police officers provided false written statements, and in depositions, the arresting officers gave false testimony.

Mr. Keane, in his Chronicle article, offered two major reasons the police lie so much. First, because they can. Police officers “know that in a swearing match between a drug defendant and a police officer, the judge always rules in favor of the officer.” At worst, the case will be dismissed, but the officer is free to continue business as usual. Second, criminal defendants are typically poor and uneducated, often belong to a racial minority, and often have a criminal record.  “Police know that no one cares about these people,” Mr. Keane explained.

All true, but there is more to the story than that.

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.

THE pressure to boost arrest numbers is not limited to drug law enforcement. Even where no clear financial incentives exist, the “get tough” movement has warped police culture to such a degree that police chiefs and individual officers feel pressured to meet stop-and-frisk or arrest quotas in order to prove their “productivity.”

For the record, the New York City police commissioner, Raymond W. Kelly, denies that his department has arrest quotas. Such denials are mandatory, given that quotas are illegal under state law. But as the Urban Justice Center’s Police Reform Organizing Project has documented, numerous officers have contradicted Mr. Kelly. In 2010, a New York City police officer named Adil Polanco told a local ABC News reporter that “our primary job is not to help anybody, our primary job is not to assist anybody, our primary job is to get those numbers and come back with them.” He continued: “At the end of the night you have to come back with something.  You have to write somebody, you have to arrest somebody, even if the crime is not committed, the number’s there. So our choice is to come up with the number.”

Exposing police lying is difficult largely because it is rare for the police to admit their own lies or to acknowledge the lies of other officers. This reluctance derives partly from the code of silence that governs police practice and from the ways in which the system of mass incarceration is structured to reward dishonesty. But it’s also because police officers are human.

Research shows that ordinary human beings lie a lot — multiple times a day — even when there’s no clear benefit to lying. Generally, humans lie about relatively minor things like “I lost your phone number; that’s why I didn’t call” or “No, really, you don’t look fat.” But humans can also be persuaded to lie about far more important matters, especially if the lie will enhance or protect their reputation or standing in a group.

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

Why you should never blow into a breath machine if you are stopped for DUI (unless you are under age 21, or on probation for a prior DUI conviction- then you you must blow into a Preliminary Breath Test Device)

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Pennsylvania: Judge Throws Out Breath Machine Evidence
County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range.

Intoxilyzer 5000

http://www.thenewspaper.com/news/39/3993.asp

A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of “high rate” driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number.

“The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant’s breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent,” Judge Lawrence F. Clark Jr. ruled.

In Pennsylvania, a separate “highest rate of alcohol” charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to $5000 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.

Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.

“As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,” Judge Clark wrote.

Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent.

“If you’re calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you’ve proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There’s no data to say that it works at 0.16 percent. There’s no data to say it works at 0.04 percent,” Lee N. Polite, an expert in organic chemistry, testified.

False DUI Arrests by another officer….

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According to www.msn.com - http://now.msn.com/lisa-steed-utah-highway-patrol-officer-fired-for-allegedly-falsifying-duis ) Yet another law enforcement officer has been caught falsifying DUI arrests aand arresting innocent citizens…  It happens more than you think!

File photo of Utah Highway Patrol Officer Lisa Steed holding an award for Trooper of the Year in 2007 (© Utah Highway Patrol/Standard-Examiner/AP)

Cop fired for allegedly falsifying dozens of DUI arrests

7 hrs ago

Anyone who’s ever been pulled over by a cop for something they didn’t do will find reason for both fury and comfort in the story of Utah Highway Patrol Cpl. Lisa Steed. Steed, a cop celebrated for her diligence, has now been fired amid allegations that she falsified dozens — perhaps hundreds — of DUI arrests. Steed routinely pulled over drivers she claimed were driving drunk or on drugs and arrested them, even if they were found to have no drugs or alcohol in their system, a lawsuit contends. ”Her actions are so blatant,” a plaintiff’s lawyer says, “it is probable that she acted like this in an untold number of cases.” [Source]

Summer Tips to Avoid a DUI Conviction

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Although the July 4thHoliday has passed, Summer is well underway.  Summer is filled with Fun, including family outings, barbeques, pool parties, and over all good cheer.  As you travel this summer, remember that DUI checkpoints remain a reality as law enforcement continues its search for DUI arrests in order to receive more grant money from the government.

In case you don’t know, DUI is short for Driving Under the Influence, and DUI checkpoints are law enforcements way of searching for drivers that may have had a drink or two, and then arresting them for DUI – even though they are likely not guilty of any crime.  Yes, I know there are zealots out there that truly believe that DUI checkpoints are good and are designed to find and stop drunk drivers, and if that were truly the case, I would support them fully.

The truth is someone who drinks 3 or 4 twelve ounce beers over a few hours is likely not DUI.  But the reality is Law Enforcement Agencies receive federal grant money for every DUI arrest that they make.  It’s all about money and politics.  The moment an unsuspecting driver that drives into a checkpoint, or is otherwise stopped, and admits to drinking a beer or two, they are going to be arrested for DUI.  The Law Enforcement Agency wants the grant money, so DUI arrests have become a funding event.

Most unsuspecting drivers will admit to the officer that they drank a beer or two because they believe that if they cooperate, they will not be arrested.  I’ve had many a client tell me “I wanted to tell the truth” – but it’s not about telling the truth, it’s about a citizen’s 5th Amendment right under the U.S. Constitution to not say anything to incriminate one’s self, because “it will be used against you.”  The point is, a driver should NEVER make incriminating statements to any law enforcement officer – that is why the 5th Amendment of the U.S. Constitution exists.

After the unwitting driver admits to an officer that he/she drank a beer or two  the officer will say something to the driver like “please get out of your car and let me make sure you are safe to drive” – and it all goes “downhill” from that point.

Thereafter, an officer will have the driver perform Field Sobriety Tests – even though the law does not require a citizen to do so –  and although the driver may have performed the tests perfectly, the officer will later write in his arrest report that the driver “did not perform the tests satisfactorily,” thereby developing the probable cause to arrest the driver.  But the officer won’t tell the driver what the Field Sobriety Tests are really used for, and upon completion of these physical tests, the officer will say something like “I have one more test, would you please blow into this breath test device?”  Again, wanting to cooperate, the driver agrees to blow into the breath device – even though the law does not require most drivers to do so.  Then, Bingo, the officer tells the driver “you’re under arrest for DUI.”  And the unsuspecting, now in shock driver, is arrested for DUI and must now submit to a chemical test, either breath (blow into an evidential breath machine) or a blood test.

The reality is, had the driver not admitted to drinking the beers, not performed the Field Sobriety Tests, and not blown into the breath test device, the officer would have likely arrested the driver for DUI anyway, just based on the odor of alcohol.  You may be asking: if the officer can arrest a driver based on the odor of alcohol alone, why did the officer have the driver do Field Sobriety Tests?  Answer: so the officer can say the driver failed the tests – thus the driver is impaired.  Odor of alcohol alone proves nothing –other than maybe the driver had an alcoholic beverage in his/her mouth at one point.  But it cannot prove impairment.  So the officer’s needs to have the driver do Field Sobriety Tests in order to gather evidence against the driver to later say the driver failed the tests and was therefore impaired.

Now the point of this article is not to get into the legality of DUI checkpoints, whether or not the officer even administered the Field Sobriety Tests correctly, the accuracy of the breath test device, or blood alcohol concentrations – these are different discussions for another time.  The point of this article is to provide unsuspecting drivers tips to avoid a DUI conviction.  Yes, an officer may arrest a driver on just the odor of an alcoholic beverage, but that is far from having enough evidence to convict a driver of the crime of DUI.

You may be asking:  If I dont answer questions about drinking, and I dont perform Field Sobriety Tests, and I elect not to blow into the preliminary breath test device, I may still get arrested for a DUI?  Answer: Yes, but as long as you didn’t fall on the floor when you got out of the car, there is no evidence of impairment to use against you.  Remember, being arrested for a DUI is not the same as being convicted of a DUI.   As for the evidential chemical test result, an expert DUI Defense Attorney can attack the validity and reliability of that result later on, as that is a separate battle.

So back to the point of this article, this July 4th holiday season, know your rights and study the following Twelve Tips to Avoid Being Convicted of DUI (Driving Under the Influence) as well as saving your driving privileges:

1. Don’t drink and drive! If you have been drinking, call a taxi or have a friend drive you home.

2. If you do Drive, Don’t park near the drinking establishment! Law Enforcement officers routinely drive through popular bar parking lots and note descriptions of cars in the parking lot and wait for the car to leave, and then invent some reason to stop the car.

3. Always drive safely. Most DUI stops are for traffic violations such as speeding, unsafe lane changes, not driving within the lane, illegal turns, etc. Be focused and attentive while driving so that you don’t give law enforcement a reason to pull you over! Drive at the speed limit. Be sure to turn on your headlights after dark, fasten your seatbelts, etc. Do not send text messages, do not use your cell phone, do not play with your car stereo, do not eat while driving, or do anything that will divert your attention from your driving.

4. Do Not drive though drive-thru fast food restaurants. Avoid late night munchies.  Many fast food restaurants work with law enforcement, and if the fast food restaurant worker believes you are under the influence or smells alcohol, they will call the police. The fast food restaurant workers are trained to use various tactics to detain you, such as “it will take a few minutes to cook your order.. can you pull around and park and we’ll bring your food out to your car.”  While you are waiting, law enforcement is on the way. And yes, the fast food restaurant took your money too!

5. Do not let the police officer check your eyes and do not agree to take other Field Sobriety Tests. If you are suspected of DUI, the police officer will usually first want to check your eyes. He will ask you to hold your head still and follow his pen or finger with your eyes only. This is called the Horizontal Gaze Nystagmus (HGN) test which is a Field Sobriety Test. Nystagmus is the involuntary jerking of the eyes, and you likely wont know if you have it. When the test is administered correctly by the officer and Nystagmus is detected, it can be an indication that alcohol is present in the driver’s blood. The problem is that many officers DO NOT administer the test correctly and will often short-cut the test, but yet the officer will write in the arrest report that he/she observed “clues” supporting an arrest for DUI – Drunk Driving. The HGN test is nothing more than a basic tool for the officer to use to gather evidence that will be used against you. Since the HGN test is a voluntary test, it is your right to elect NOT to participate in the test. An honest officer cannot write that you failed a test that you elected not to do. Always be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any field sobriety tests.”

In addition to the HGN test, other Field Sobriety Tests often given by police officers are: finger to nose, hand pat, finger count, say the alphabet backwards, count backwards, one leg stand, walk the line and turn, and whatever other crazy test the officer can come up with.

Note that only the Horizontal Gaze Nystagmus test, the One Leg Stand test, and the Walk and Turn test are considered Standardized Field Sobriety Tests that are approved by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP) and are part of the DWI Detection Standardized Field Sobriety Testing Program.  Any other test is simply not reliable as there are no studies supporting them.

Like the HGN, all Field Sobriety Tests are completely voluntary and you do not have to take them.  Always be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any field sobriety tests.”  Many law enforcement officers will tell you that if you pass the tests you won’t be arrested. But if the officer smells alcohol on your breath, it is very likely that you will be arrested. Some officers will tell you that if you refuse to take the Field Sobriety Tests, you will go to jail. Do not allow the officer to intimidate you. If you’ve been drinking, you will likely go to jail anyway, so why give the officer evidence that will later be used against you?

Some officers will also tell you that if you refuse to take the Field Sobriety Tests, they will tell the court and your refusal to take the tests will be evidence that you are guilty. Field Sobriety Tests are completely voluntary and it is your right to elect not to take the tests.

By agreeing to participate in Field Sobriety Tests, you are helping the officer gather evidence and build a case against you. You are giving the officer the opportunity to write in his report that you “failed” the tests. The tests are subjective and the officer’s idea of “passing” is very different than your idea of passing.  You are better off not giving the officer “evidence” that he/she will use against you later.  Again, be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any field sobriety tests.”

Note: If you are on probation for a previous DUI conviction, a term of your probation may require you to submit to Field Sobriety Tests.  Be sure to review your terms of probation if you are on probation for a previous DUI conviction and consult an expert DUI defense attorney.

6. Politely elect NOT to answer any questions during the DUI investigation, either before or after you are arrested. You must provide the officer with your driver license, registration, and proof of insurance, but other than that REMAIN SILENT. If the officer asks you if you have been drinking alcohol, simply say “on the advice of my attorney, I choose to exercise my 5th amendment right and remain silent.” It is your 5th Amendment right to remain silent and not say anything that may incriminate you.

The officer will want to ask you questions regarding where you’ve been, what you’ve eaten, how many alcoholic beverages you drank, what were you drinking, etc.  By doing so the officer is gathering information to make a quick determination of your drinking pattern, and with this information, the officer will determine if he/she should test your blood alcohol level as soon as possible or wait a while until you have fully absorbed the alcohol in your stomach. In addition, by answering the officer’s questions you are helping the officer gather evidence – your statements- that will be used against you in court.  Again, politely say “Officer, I choose to exercise my 5th amendment right and remain silent and not answer any questions.”

7. If you are age 21 or over, Decline to take the Preliminary Alcohol Screen (PAS) Breath test. After you’ve been stopped, if the officer suspects that you’ve been drinking, he/she may ask you to blow into a Preliminary Alcohol Screen Breath (PAS) device, which is a hand held device used to detect alcohol in your breath. This test is voluntary, and officers are required by law to advise you of this, but most officers won’t tell you. Many officers will tell you that you must blow into the PAS device. THIS IS FALSE if you are 21 years of age or older.  

NOTE: If you are UNDER 21 years of age, you must agree to blow into the PAS breath test, or you may lose your drivers license for a year or more.

Although the implied consent law requires that you submit to a “chemical test” to measure the alcohol concentration in your blood if you are arrested for driving under the influence of alcohol or drugs, the PAS breath device is not one of the chemical tests. The PAS device is a “preliminary” breath alcohol screening device designed to determine the presence and amount of alcohol in your breath. If you agree to take the PAS test you still will have to take an evidential test after you are arrested (breath or blood). Theoretically, an officer uses the PAS device results to determine if you will be arrested for DUI. PAS devices do not always give accurate results. If you agree to blow into the PAS device, you are helping the officer gather more evidence that will be used against you in court.

Note: If you are on probation for a previous DUI conviction, California law requires you to submit to the PAS breath test.  If you refuse to blow into the PAS breath test, and you are on probation for a previous DUI, the Department of Motor Vehicles may suspend your driving privilege for a year or more.

8. Choose a blood test. If you are arrested, choose a blood test rather than a breath test. If you choose a breath test, the officer will know your alleged breath alcohol concentration immediately. He will then write his arrest report having your breath alcohol concentration in mind. The officer is now more likely to embellish facts in the arrest report to support his arrest.  For instance: the driver was weaving in the lane, the driver had slurred speech, the driver stumbled when he walked, the driver fumbled in his wallet to get his driver license, etc. – all because the officer knows your breath alcohol concentration before writing his report.

If you choose a blood test, the arresting officer will not know the results of the blood test for a week or more.  The arrest report will more than likely have been written prior to the blood test results being available. The arresting officer’s report will likely be more objective and honest because the officer wrote it without knowing the level of your alleged blood alcohol concentration.  In addition, if you choose a blood test, an expert DUI Defense attorney will have the opportunity to have your blood sample analyzed by an independent laboratory to verify the result as well as check for proper preservative levels, the presence of bacteria, coagulation, signs of fermentation, etc. – all factors that can affect the reliability of the result.

If you choose a breath test, the breath sample is not saved and therefore cannot be retested.

Note: In some rare instances, a blood test may not be available because a Phlebotomist is not available to draw your blood.  If that is the case, you may have to agree to the breath test.  But always insist on a blood test unless a blood test is not available.   

Be sure to take only one chemical test!  Some officers will talk an arrested driver into taking a breath and a blood test. That’s like having two smoking guns. Take one test only, and take a blood test.

Note: If you have NOT been drinking alcohol and are being arrested for driving under the influence of drugs (marijuana, etc), choose a urine test as it is the least accurate test.  

9. Make sure your tail lights, turn signals, etc. are working properly.Inspect your car and make sure all lights are working. Also make sure your windows are not unlawfully tinted. Many times persons are stopped by an officer because a tail light is out or the car has some other problem. The officer then smells alcohol when he walks up to the driver’s window and a DUI investigation follows. During evening hours, law enforcement officers are on patrol looking for reasons to stop drivers to possibly get a DUI arrest.

10. Always be on your best behavior.Some police cars are equipped with video recorders and the stop and arrest are recorded. Some officers carry digital recorders and record conversations. Also many jails have video recorders so you are being recorded while you are being processed. Be polite.

11. Insist on your three completed telephone calls and make a detailed record of all events.Penal Code § 851.5 entitles an arrested person 3 completed telephone calls. This is your right and therefore you should insist!  Call your cell phone if you can and leave yourself a voice message to record your voice, that way if your speech is not slurred the recording can be used as evidence in your defense.  Also remember to make a detailed record of all the events that occurred before being stopped, up to and including being released from custody. Do so while the events are fresh in your mind. This information may be helpful in defending your case.

12. Retain an expert DUI Defense Attorney to represent you.  DUI cases are complex and require specialized knowledge. DUI Defense Attorney Manuel J. Barba is an expert in the administration of Standardized Field Sobriety Tests, breath alcohol testing, blood alcohol analysis, and DRE – Drug Recognition Expert protocol.

Call the Law Offices of Manuel J. Barba today for a free consultation:

Toll Free: 1-866-442-2722

This blog and linked websites are made available by the Law Offices of Manuel J. Barba for general information purposes only and to provide a general understanding of the law, not to provide legal advice. Readers of this blog and linked websites are cautioned that reading the blog/websites does not create a lawyer-client relationship between the reader and the Law Offices of Manuel J. Barba.

July 4th Tips To Avoid A DUI Conviction

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The July 4thHoliday is upon us, and with it comes celebrations, barbeques, good cheer, as well as DUI checkpoints.  In case you don’t know, DUI is short for Driving Under the Influence, and DUI checkpoints are law enforcements way of searching for drivers that may have had a drink or two, and then arresting them for DUI – even though they are likely not guilty of any crime.  Yes, I know there are zealots out there that truly believe that DUI checkpoints are good and are designed to find and stop drunk drivers, and if that were truly the case, I would support them fully.

The truth is someone who drinks 3 or 4 twelve ounce beers over a few hours is likely not DUI.  But the reality is Law Enforcement Agencies receive federal grant money for every DUI arrest that they make.  It’s all about money and politics.  The moment an unsuspecting driver that drives into a checkpoint, or is otherwise stopped, and admits to drinking a beer or two, they are going to be arrested for DUI.  The Law Enforcement Agency wants the grant money, so DUI arrests have become a funding event.

Most unsuspecting drivers will admit to the officer that they drank a beer or two because they believe that if they cooperate, they will not be arrested.  I’ve had many a client tell me “I wanted to tell the truth” – but it’s not about telling the truth, it’s about a citizen’s 5th Amendment right under the U.S. Constitution to not say anything to incriminate one’s self, because “it will be used against you.”  The point is, a driver should NEVER make incriminating statements to any law enforcement officer – that is why the 5th Amendment of the U.S. Constitution exists.

After the unwitting driver admits to an officer that he/she drank a beer or two  the officer will say something to the driver like “please get out of your car and let me make sure you are safe to drive” – and it all goes “downhill” from that point.

Thereafter, an officer will have the driver perform Field Sobriety Tests – even though the law does not require a citizen to do so –  and although the driver may have performed the tests perfectly, the officer will later write in his arrest report that the driver “did not perform the tests satisfactorily,” thereby developing the probable cause to arrest the driver.  But the officer won’t tell the driver what the Field Sobriety Tests are really used for, and upon completion of these physical tests, the officer will say something like “I have one more test, would you please blow into this breath test device?”  Again, wanting to cooperate, the driver agrees to blow into the breath device – even though the law does not require most drivers to do so.  Then, Bingo, the officer tells the driver “you’re under arrest for DUI.”  And the unsuspecting, now in shock driver, is arrested for DUI and must now submit to a chemical test, either breath (blow into an evidential breath machine) or a blood test.

The reality is, had the driver not admitted to drinking the beers, not performed the Field Sobriety Tests, and not blown into the breath test device, the officer would have likely arrested the driver for DUI anyway, just based on the odor of alcohol.  You may be asking: if the officer can arrest a driver based on the odor of alcohol alone, why did the officer have the driver do Field Sobriety Tests?  Answer: so the officer can say the driver failed the tests – thus the driver is impaired.  Odor of alcohol alone proves nothing –other than maybe the driver had an alcoholic beverage in his/her mouth at one point.  But it cannot prove impairment.  So the officer’s needs to have the driver do Field Sobriety Tests in order to gather evidence against the driver to later say the driver failed the tests and was therefore impaired.

Now the point of this article is not to get into the legality of DUI checkpoints, whether or not the officer even administered the Field Sobriety Tests correctly, the accuracy of the breath test device, or blood alcohol concentrations – these are different discussions for another time.  The point of this article is to provide unsuspecting drivers tips to avoid a DUI conviction.  Yes, an officer may arrest a driver on just the odor of an alcoholic beverage, but that is far from having enough evidence to convict a driver of the crime of DUI.

You may be asking:  If I dont answer questions about drinking, and I dont perform Field Sobriety Tests, and I elect not to blow into the preliminary breath test device, I may still get arrested for a DUI?  Answer: Yes, but as long as you didn’t fall on the floor when you got out of the car, there is no evidence of impairment to use against you.  Remember, being arrested for a DUI is not the same as being convicted of a DUI.   As for the evidential chemical test result, an expert DUI Defense Attorney can attack the validity and reliability of that result later on, as that is a separate battle.

So back to the point of this article, this July 4th holiday season, know your rights and study the following Twelve Tips to Avoid Being Convicted of DUI (Driving Under the Influence) as well as saving your driving privileges:

1. Don’t drink and drive! If you have been drinking, call a taxi or have a friend drive you home.

2. If you do Drive, Don’t park near the drinking establishment! Law Enforcement officers routinely drive through popular bar parking lots and note descriptions of cars in the parking lot and wait for the car to leave, and then invent some reason to stop the car.

3. Always drive safely. Most DUI stops are for traffic violations such as speeding, unsafe lane changes, not driving within the lane, illegal turns, etc. Be focused and attentive while driving so that you don’t give law enforcement a reason to pull you over! Drive at the speed limit. Be sure to turn on your headlights after dark, fasten your seatbelts, etc. Do not send text messages, do not use your cell phone, do not play with your car stereo, do not eat while driving, or do anything that will divert your attention from your driving.

4. Do Not drive though drive-thru fast food restaurants. Avoid late night munchies.  Many fast food restaurants work with law enforcement, and if the fast food restaurant worker believes you are under the influence or smells alcohol, they will call the police. The fast food restaurant workers are trained to use various tactics to detain you, such as “it will take a few minutes to cook your order.. can you pull around and park and we’ll bring your food out to your car.”  While you are waiting, law enforcement is on the way. And yes, the fast food restaurant took your money too!

5. Do not let the police officer check your eyes and do not agree to take other Field Sobriety Tests. If you are suspected of DUI, the police officer will usually first want to check your eyes. He will ask you to hold your head still and follow his pen or finger with your eyes only. This is called the Horizontal Gaze Nystagmus (HGN) test which is a Field Sobriety Test. Nystagmus is the involuntary jerking of the eyes, and you likely wont know if you have it. When the test is administered correctly by the officer and Nystagmus is detected, it can be an indication that alcohol is present in the driver’s blood. The problem is that many officers DO NOT administer the test correctly and will often short-cut the test, but yet the officer will write in the arrest report that he/she observed “clues” supporting an arrest for DUI – Drunk Driving. The HGN test is nothing more than a basic tool for the officer to use to gather evidence that will be used against you. Since the HGN test is a voluntary test, it is your right to elect NOT to participate in the test. An honest officer cannot write that you failed a test that you elected not to do. Always be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any field sobriety tests.”

In addition to the HGN test, other Field Sobriety Tests often given by police officers are: finger to nose, hand pat, finger count, say the alphabet backwards, count backwards, one leg stand, walk the line and turn, and whatever other crazy test the officer can come up with.

Note that only the Horizontal Gaze Nystagmus test, the One Leg Stand test, and the Walk and Turn test are considered Standardized Field Sobriety Tests that are approved by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP) and are part of the DWI Detection Standardized Field Sobriety Testing Program.  Any other test is simply not reliable as there are no studies supporting them.

Like the HGN, all Field Sobriety Tests are completely voluntary and you do not have to take them.  Always be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any field sobriety tests.”  Many law enforcement officers will tell you that if you pass the tests you won’t be arrested. But if the officer smells alcohol on your breath, it is very likely that you will be arrested. Some officers will tell you that if you refuse to take the Field Sobriety Tests, you will go to jail. Do not allow the officer to intimidate you. If you’ve been drinking, you will likely go to jail anyway, so why give the officer evidence that will later be used against you?

Some officers will also tell you that if you refuse to take the Field Sobriety Tests, they will tell the court and your refusal to take the tests will be evidence that you are guilty. Field Sobriety Tests are completely voluntary and it is your right to elect not to take the tests.

By agreeing to participate in Field Sobriety Tests, you are helping the officer gather evidence and build a case against you. You are giving the officer the opportunity to write in his report that you “failed” the tests. The tests are subjective and the officer’s idea of “passing” is very different than your idea of passing.  You are better off not giving the officer “evidence” that he/she will use against you later.  Again, be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any field sobriety tests.”

Note: If you are on probation for a previous DUI conviction, a term of your probation may require you to submit to Field Sobriety Tests.  Be sure to review your terms of probation if you are on probation for a previous DUI conviction and consult an expert DUI defense attorney.

6. Politely elect NOT to answer any questions during the DUI investigation, either before or after you are arrested. You must provide the officer with your driver license, registration, and proof of insurance, but other than that REMAIN SILENT. If the officer asks you if you have been drinking alcohol, simply say “on the advice of my attorney, I choose to exercise my 5th amendment right and remain silent.” It is your 5th Amendment right to remain silent and not say anything that may incriminate you.

The officer will want to ask you questions regarding where you’ve been, what you’ve eaten, how many alcoholic beverages you drank, what were you drinking, etc.  By doing so the officer is gathering information to make a quick determination of your drinking pattern, and with this information, the officer will determine if he/she should test your blood alcohol level as soon as possible or wait a while until you have fully absorbed the alcohol in your stomach. In addition, by answering the officer’s questions you are helping the officer gather evidence – your statements- that will be used against you in court.  Again, politely say “Officer, I choose to exercise my 5th amendment right and remain silent and not answer any questions.”

7. If you are age 21 or over, Decline to take the Preliminary Alcohol Screen (PAS) Breath test. After you’ve been stopped, if the officer suspects that you’ve been drinking, he/she may ask you to blow into a Preliminary Alcohol Screen Breath (PAS) device, which is a hand held device used to detect alcohol in your breath. This test is voluntary, and officers are required by law to advise you of this, but most officers won’t tell you. Many officers will tell you that you must blow into the PAS device. THIS IS FALSE if you are 21 years of age or older.  

NOTE: If you are UNDER 21 years of age, you must agree to blow into the PAS breath test, or you may lose your drivers license for a year or more.

Although the implied consent law requires that you submit to a “chemical test” to measure the alcohol concentration in your blood if you are arrested for driving under the influence of alcohol or drugs, the PAS breath device is not one of the chemical tests. The PAS device is a “preliminary” breath alcohol screening device designed to determine the presence and amount of alcohol in your breath. If you agree to take the PAS test you still will have to take an evidential test after you are arrested (breath or blood). Theoretically, an officer uses the PAS device results to determine if you will be arrested for DUI. PAS devices do not always give accurate results. If you agree to blow into the PAS device, you are helping the officer gather more evidence that will be used against you in court.

Note: If you are on probation for a previous DUI conviction, California law requires you to submit to the PAS breath test.  If you refuse to blow into the PAS breath test, and you are on probation for a previous DUI, the Department of Motor Vehicles may suspend your driving privilege for a year or more.

8. Choose a blood test. If you are arrested, choose a blood test rather than a breath test. If you choose a breath test, the officer will know your alleged breath alcohol concentration immediately. He will then write his arrest report having your breath alcohol concentration in mind. The officer is now more likely to embellish facts in the arrest report to support his arrest.  For instance: the driver was weaving in the lane, the driver had slurred speech, the driver stumbled when he walked, the driver fumbled in his wallet to get his driver license, etc. – all because the officer knows your breath alcohol concentration before writing his report.

If you choose a blood test, the arresting officer will not know the results of the blood test for a week or more.  The arrest report will more than likely have been written prior to the blood test results being available. The arresting officer’s report will likely be more objective and honest because the officer wrote it without knowing the level of your alleged blood alcohol concentration.  In addition, if you choose a blood test, an expert DUI Defense attorney will have the opportunity to have your blood sample analyzed by an independent laboratory to verify the result as well as check for proper preservative levels, the presence of bacteria, coagulation, signs of fermentation, etc. – all factors that can affect the reliability of the result.

If you choose a breath test, the breath sample is not saved and therefore cannot be retested.

Be sure to take only one chemical test!  Some officers will talk an arrested driver into taking a breath and a blood test. That’s like having two smoking guns. Take one test only, and take a blood test.

Note: If you have NOT been drinking alcohol and are being arrested for driving under the influence of drugs (marijuana, etc), choose a urine test as it is the least accurate test.  

9. Make sure your tail lights, turn signals, etc. are working properly. Inspect your car and make sure all lights are working. Also make sure your windows are not unlawfully tinted. Many times persons are stopped by an officer because a tail light is out or the car has some other problem. The officer then smells alcohol when he walks up to the driver’s window and a DUI investigation follows. During evening hours, law enforcement officers are on patrol looking for reasons to stop drivers to possibly get a DUI arrest.

10. Always be on your best behavior. Some police cars are equipped with video recorders and the stop and arrest are recorded. Some officers carry digital recorders and record conversations. Also many jails have video recorders so you are being recorded while you are being processed. Be polite.

11. Insist on your three completed telephone calls and make a detailed record of all events. Penal Code § 851.5 entitles an arrested person 3 completed telephone calls. This is your right and therefore you should insist!  Call your cell phone if you can and leave yourself a voice message to record your voice, that way if your speech is not slurred the recording can be used as evidence in your defense.  Also remember to make a detailed record of all the events that occurred before being stopped, up to and including being released from custody. Do so while the events are fresh in your mind. This information may be helpful in defending your case.

12. Retain an expert DUI Defense Attorney to represent you.  DUI cases are complex and require specialized knowledge. DUI Defense Attorney Manuel J. Barba is an expert in the administration of Standardized Field Sobriety Tests, breath alcohol testing, blood alcohol analysis, and DRE – Drug Recognition Expert protocol.

Call the Law Offices of Manuel J. Barba today for a free consultation:

Toll Free: 1-866-442-2722

This blog and linked websites are made available by the Law Offices of Manuel J. Barba for general information purposes only and to provide a general understanding of the law, not to provide legal advice. Readers of this blog and linked websites are cautioned that reading the blog/websites does not create a lawyer-client relationship between the reader and the Law Offices of Manuel J. Barba.

Alcohol in soda pop? Really?

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According to delish.com, traces of alcohol have been found in Coca Cola, Coke Zero, and Pepsi…   The article, entitled “Are There Traces of Alcohol In Your Favorite Soda” cites “ The Huffington Post reports that Coca-Cola France’s scientific director, Michel Pepin, proposed one theory for the presence of alcohol: natural fruit fermenting that could take place during the secret drink-making process.”

Fermentation is a commn issue in the defense of DUI cases, as a blood sample is often drawn and anlyzed for evidence of an accused driver’s blood alcohol concentration.  Scientific studies conclude that microorganisms convert the sugar that is naturally in human blood into ethanol (Alcohol).

A previous client accused of DUI adamantly stated that all she drank “was a couple cans of Pepsi..”   Hmmm… Perhaps there is something here…

http://www.delish.com/food/recalls-reviews/alcohol-traces-major-sodas