Common Policing Errors For A DUI Stop

In making a traffic stop, law enforcement must have enough probable cause (California Penal Code Section 836a). If there was no probable cause present when you were stopped by a police officer, it could be considered an illegal traffic stop, and our attorneys may be able to get your case dismissed.

In other words, law enforcement officers must have a valid reason to stop you. Remember, for the initial traffic stop to occur, the police officer does not need to have probable cause that you were driving under the influence. For the initial traffic stop to be lawful, any traffic violation can serve as valid probable cause. A common example of a traffic violation that can be sufficient probable cause for a lawful traffic stop is making a rolling stop at a stop sign. However, if it can be proven that you did make a complete stop at the stop sign, your traffic stop may be determined to be unlawful. Our team of lawyers has plenty of experience and can determine if you were subject to an unlawful traffic stop. If our attorneys are successful in determining that your traffic stop was unlawful, any subsequent evidence that resulted can and will most likely be suppressed.

In addition to having a valid reason for the traffic stop, the police officers also need a legitimate reason to administer a DUI test. The example stated above about a driver who makes a rolling stop is not an indication that a driver is intoxicated. Usually, most regular traffic violations do not suggest that an individual is driving under the influence. Often, police officers will notice the signs suggesting you are intoxicated after they have already stopped you. These signs include slurred speech, smell of alcohol present on your breath, or blood shot eyes. The attorneys at the Orange County DUI Attorney Law Firm know when a DUI test is administered appropriately, and when the test has been administered unlawfully. As stated previously, evidence showing that you were intoxicated is not always admissible. The police must adhere to a certain number of laws and procedures when they gather incriminating evidence against you. Thus, if a DUI test was administered unlawfully and resulted in incriminating evidence, that evidence should not be used against you.

Sometimes, drivers make statements that incriminate themselves, and in some cases admit to driving under the influence. If you made incriminating statements during your arrest, you may be thinking that the case against you is unbeatable. However, depending on how and when the police officer questioned you, any incriminating statements may not be admissible.

After being arrested, it is your constitutional right to have the arresting officer apprise you of your Miranda Rights. Miranda Rights are defined as the right to remain silent, right to hire an attorney, and if you cannot afford an attorney, it includes the right to have a public defender assigned to your case. If the arresting officer did not read you your Miranda Rights, any evidence you divulged to the officer after your arrest may be inadmissible evidence against you. Moreover, even if the officer read you your Miranda Rights, if you stated that you wanted to remain silent, or wanted your attorney present, any police questioning should have ceased. If the police proceeded to question you after you stated you wanted to invoke your Miranda Rights, our experienced attorneys can fight to suppress any incriminating evidence resulting from your arrest.

Field Sobriety Tests (FST) are used by arresting officers in order to determine an individual’s level of intoxication who is suspected of DUI. FSTs are intended to assess your balance, coordination, and motor skills. It is up to the officer’s independent judgment to decide whether you pass or fail. Numerous factors can contribute to an officer’s errors in administering an FST.

These examples include:

1. Low Lighting
2. Walking on a slippery surface
3. Vague, or imprecise instructions given by the officer
4. The officer incorrectly assesses your coordination
5. Unknown medical conditions at the time of testing

Incorrect Positive Breath Test Results:

Although California regulates breath tests, there are errors and certain circumstances that lead to incorrect positive results. If your blood alcohol level was higher than California’s legal limit, this could be a result of several different factors. For this reason, it is important to hire an experienced attorney who knows how to best assess breath test results in order to determine if any of these factors that can lead to a false positive were present in your case. If our attorney determines your breath test results were that of a false positive, your case can be dismissed entirely.

Factors that can lead to a false positive are:

1. Breath sample contamination
2. Operational errors. The officer administering the breath test can make mistakes such as not checking that your mouth is empty before beginning the test and not attaching the mouthpiece to the test machine properly.
3. Failing to keep record properly. The officer administering the test must be vigilant and record your actions for 15 consecutive minutes prior to administering the test and record the results after every “blow.”
4. Failing to calibrate the breath test device.
5. Unknown medical conditions during the test. Fasting, hypoglycemia, high protein/ low carbohydrate diets and diabetes are conditions known to produce false positive test results. If someone is on a low carb. diet, their body burns fat and produces ketones. These ketones convert to acetone, which can result in the breath test misreading the acetone as alcohol. Also, the test can misread acetone as alcohol as a result of an individual fasting. In regards to diabetics, they can release ketones due to their condition, which can result in false positive results.
6. Alcohol residue in the mouth. Residual alcohol in the mouth can trick a breathalyzer reading a higher level of alcohol than one has in his or her system. If an individual recently drank cough syrup, gargled mouthwash containing alcohol, or drank alcohol right before the test, the results of your test can show your blood alcohol level being higher than the amount of blood alcohol level in your system. This residual alcohol can be present in one’s mouth for up to 20 minutes.

Our team of attorneys will devote their time to assess every part of your FST to ensure that it was administered in a lawful manner. They will also look for extenuating circumstances present in your DUI case that can call into question the officer’s interpretation of your FST.

As stated previously, California DUI tests have room for error. It is within your rights to decline the preliminary alcohol screening breath test (PAS) unless you are under the age of 21, or are on probation due to a prior DUI. Usually, police officers will not let you know that you are allowed to deny the PAS test.

Most often, the PAS test is administered roadside, on a handheld breathalyzer. The PAS is usually given prior to the driver being arrested. After the driver is arrested, an evidentiary air test on the breathalyzer will be given. This test is usually administered at the police station or sometimes at a police DUI checkpoint.

In administering DUI breath tests, police must follow certain procedures. These rules include:

1. The individual administering the test has to be properly trained.
2. The instrument being used to administer the breath test has to be a California-approved DUI breath test device.
3. The individual administering the DUI test must observe the person taking the test for 15 continuous minutes prior to taking the test. In those 15 minutes, the person taking the test cannot smoke, eat, drink, burp, or vomit.
4. The instrument being used for the DUI test must be calibrated properly. California law states that the instrument has to be calibrated after every 150 uses or every 10 days, whichever happens first. The individual giving the breath test has to keep proper records at each stage of the breathalyzer calibration and test.
5. The individual administering the breath test has to administer two tests whose results cannot vary more than 0.02g per 100 mL of blood alcohol. It is okay for the person to ask you to “blow” more than two times in order to get the correct breath samples.
6. The sample must come from deep in your lungs.

If these procedures were not properly followed in your case, the test’s validity can be questioned and could possibly be suppressed.

As previously stated, if you are arrested for a DUI, you will be subject to two different tests. The first is the pre-arrest, PAS test. Absent being under 21 years of age, and being on probation for a prior DUI, it is within your rights to refuse to take the PAS test. However, even if you refuse the PAS test, you may still be subject to a DUI arrest. If you are arrested, you must take a chemical test if you are asked. Usually, police officers will ask you to take the chemical test if you are suspected of being under the influence of drugs, and/ or alcohol.

If you choose to refuse the chemical test after being arrested, your DUI penalties may be enhanced following a DUI conviction. Additionally, the DMV will suspend your driver’s license for a minimum of one year.

Usually, people will ask if it is better to take a blood or a breath test? Unfortunately, there is no clear answer. Both of these tests may have pros and cons, these pros and cons depend on the specifics of each case.

DUI breath tests do not directly measure your blood alcohol level. The breath test, through a mathematic process, proportions the amount of alcohol present on your breath to the amount of alcohol in your blood. This conversion is called a “partition ratio.”

Since breath tests cannot be preserved, they cannot be verified later. This may be an advantage if an attorney challenges the accuracy of the breath test. Adversely, blood tests can be preserved and tested later to verify the results. This can work to your advantage if the results of the subsequent testing of the blood sample show the initial blood test was inaccurate.

Remember, certain medical conditions can prevent an individual from taking a breath test. These conditions include emphysema, and asthma unconsciousness. On the other hand, if a person has a fear of needles makes the breath test more desirable.

If you have been arrested for DUI, our team of lawyers can help you. Contact our office for a FREE consultation and our attorneys can begin to carefully and thoroughly investigate your case. Our attorneys specialize in DUI cases and can handle any type of DUI cases throughout Orange County.

The attorneys at Orange County DUI Attorney Law Firm can assess your case, and begin building your defense to give you the best chance at obtaining a desirable outcome for your case. The entire staff at the Orange County DUI Attorney Law Firm is devoted to serving all clients throughout Orange County and will ensure that you receive the representation that you deserve.