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Beers clinkingTelling Cop You Had One Or Two Beers Is Usually the Wrong Answer.

Those pulled over for a traffic stop invariably tell the arresting officer that they had “one or two beers” when asked.  This is a mistake for two reasons.  First, the person pulled over is under no obligation to assist the police officer in building a case against them.*  It is axiomatic that unless you are a lost six year old, the police officer is not there to help you.

Second, if it’s not true that the person had one or two beers, then it will come back to discredit them and will limit their options at the DMV and trial.  If the person blows around .08, then they had approximately 4 drinks. Widmark’s formula** tells us that every drink raises the BAC of the average man by approximately .02.  Thus, a .08 BAC means that the person imbibed 4 drinks.  So when you tell the officer that you only had one or two beers and you blow .08 and later the alcohol tech testifies that you must have had 4 drinks based on Widmark’s formula, your credibility is shot.

Again, I cannot stress enough how important it is NOT to answer the cop’s questions when pulled over for a traffic infraction/DUI investigation.  {I wouldn’t even answer, “Do you know why I pulled you over?”} Contrary to popular belief, your statements to the officer are not made inadmissible because he didn’t read you your Miranda rights.  The US Supreme Court in Berkemer v. McCarty has said that answers to post-stop/pre-arrest questions (the US Supreme Court actually said 1-2 questions; in California the DMV and Courts stretch that to include the 23-30 DUI investigative questions asked by officers) are not constitutionally protected by Miranda. Your statements will be used to contradict any testimony you later give.

The second answer that is almost universally given in one form or another is to the question “When did you start/stop drinking?. The detainee’s instinct is to make the drinking as long as possible from the stop and answers accordingly.  This may impact a defendant’s credibility later, after the way alcohol behaves in the body is explained to him, and it is too late to tell the truth.  In most situations, the closer to the stop the person was driving the better for them.

This is for two reasons: First, breath alcohol in the absorptive phase is higher than actual Blood Alcohol.  So, when given a breathalyzer test in the absorptive phase, what the machine reads will be higher than what is actually in your system. Commonly used breath  testing machinery manuals state that it is improper to use the machine for 120 minutes after the person stops drinking because of this.

Second, because alcohol is absorbed over time and it can take between 50 minutes and 2 hours (or longer after you eat) to fully absorb alcohol, the person’s BAC at the time of driving may be less than .08.  An answer by defendant that pushes the time drinking stopped further back will be used to evidence that the Defendant is in the elimination phase and his BAC was higher at the time of driving. See Graph.

* Again, if you have NOT been drinking, cooperate with the police.  If you have been drinking, even a little bit, it is highly likely that regardless of whether you cooperate you will be going to the station, so why give the police evidence that will later be used against you if you are charged?

** Widmark’s formula was developed in the laboratory under strict controls. It is probably not scientific when discussed by a alcohol tech where the only variable that is objectively added into the formula is BAC at some random point after the stop.  Further, Widmark’s formula requires imputting a constant based on the ‘average man’ or ‘average woman’.  Anyone average out there?

What do surprise balance tests performed for the first time at the side of the road have to with sobriety?

Nothing. There are numerous problems with field sobriety testing including, but not limited to, (1) There is no baseline of your ability to do the FSEs when you have zero alcohol in your system. (2) The tests are supposed to be standardized, that is the cops are supposed to do them exactly the same every time. They rarely do the tests according to how NHTSA says they are supposed to be done. (3) The cops are looking for evidence against you. The only thing recorded will be what they think you did wrong. (4) The tests measure balance, but they take away your means of keeping balanced: feet shoulder width apart, looking at the horizon, and keeping your head level for inner ear balance.

The bottom line is: If you are stopped by the cops, and if the cops ask you to perform these exercises, politely decline to do the FSEs UNLESS you have not had anything to drink at all. The results can only hurt you.

A Field Sobriety Test is a very  subjective set of divided attention tests. (For the record, most DUI Defense Lawyers refer to them as exercises, FSEs not tests). The officers will always say they aren’t passing you or failing you, they are ‘looking for CLUES’. And the cops will always say you “exhibited all the clues” of intoxication in their field sobriety testing.

There are two kinds of FSEs: Standard and Non-standard. Standard FSEs are those that have been shown to have some correlation to being under the influence in a NHTSA (National Highway Traffic Safety Administration) non-peer reviewed study.* The Standard FSEs are: the Horizontal Gaze Nystagmus (HGN); the Walk and Turn; and the One Leg Stand.

The Non-Standard tests include; Romberg balance, touching your nose with your finger; touching your thumb with your finger; or, reciting the alphabet (backwards or forwards, start with ‘Q’).

Horizontal gaze nystagmus is the test where the cop holds the pencil or his finger 12-15 inches from your face, level with your eyes and moves the it side to side. The cop will say they are looking for 6 ‘clues’ in this test, 3 in each eye: equal pupil size, lack of smooth pursuit, and nystagmus (jerking) of the eye at the extremes. There are really about 20 things they are looking for, including failing to follow instructions and swaying from side to side.

Exhibiting any ‘clue’ can be used in determining you are under the influence. 50% of the population has nystagmus at the extremes when sober. There are dozens of things other than alcohol that cause nystagmus, including it being late at night. (Hint: most DUI stops are late at night.) This is actually a test properly performed by trained Opthamologists (eye doctors) using sophisticated equipment.

In the Walk and Turn test, you walk 9 steps up, execute a complicated turn and walk nine steps back. Not standing with your left foot in front of right, missing toe with heel (more than 2″), not turning around with small steps, and losing balance are all ‘clues’ that you are under the influence. You are not given the grading criteria during the instruction phase. Most people can’t do this sober. Older people, overweight people or people with balance, leg or foot problems cannot usually do this.

In the One Leg Stand, the cop instructs you to raise your leg and count until he says stop. There are 18 ‘clues’ the officer is looking for. Mostly he is seeing whether you are able to keep your balance past 25 seconds. In this test you are instructed that if you put your foot down, just to pick it up and keep going. One of the ‘clues’ that will be held against you is putting your foot down.

The Non-Standard field sobriety tests are even more absurd.

In the Romberg, the cop instructs you to close your eyes and tilt your head back, count silently in your head and estimate 30 seconds. There are 18 ‘clues’ the cop is looking for here. Mostly they want to see whether your time sense is affected by being under the influence. They will judge you on how close to 30 seconds your estimation is. The instructions say that if you are within 10 seconds +/- you pass.

For more information about the field sobriety tests or to set up a consultation with me to talk about your specific case – Call 213-479-5322 or fill out the easy form at right.

* Marceline Burns, one of the psychologists who developed the battery used in field sobriety testing has said the tests don’t show either a specific blood alcohol concentration or impairment for the purpose of driving.

A good case explaining how to fight an checkpoint arrestMan and CHP at checkpoint Arrest came down recently in the San Francisco Appellate Division entitled People v. Alvaredo.  Alvaredo was stopped at a DUI Checkpoint.  He was arrested for DUI and his Attorney moved to suppress the evidence, including the breath test, because the cops did not follow the procedures established by the California Supreme Court in Ingersoll v. Palmer for DUI checkpoints.  The Trial court denied the Motion to Suppress.  The Court of Appeal reversed the denial of the Motion to Suppress because three important and one not-so-important factors were missing.

The Ingersoll factors are:

(1) Whether the decision to establish the checkpoint, the selection of the site, and the procedures for operation are established by supervisory law enforcement personnel;
(2) Whether motorists are stopped according to a neutral formula;
(3) Whether adequate safety precautions are taken, such as proper lighting, warning signs, and signals, and whether clearly identifiable official vehicles and personnel are used;
(4) Whether the location of the checkpoint was determined by a policymaking official, and was reasonable;
(5) Whether the time the checkpoint was conducted and its duration reflect “good judgment” on the part of law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop);
(7) Whether the average length and nature of detention is minimized, and;
(8) Whether the checkpoint is preceded by publicity.

 In Alvarado, the Court found that the San Francisco Police Department had not followed (1), (4), (7) and of lesser import (8)(Banks)*.  Because the Police did not establish the procedures to be used at a command level, did not determine whether the location was beneficial for the purpose of deterrence, did not minimize the length and nature of the detention and failed to publicize the DUI checkpoint in advance, the Court held that the checkpoint was unconstitutional.

The Court admits bewilderment with the prosecution in its holding. Stating that even though the state had access to the same Ingersoll factors, they seemed to put on no evidence to sustain their burden of proof under Wilder.**

Avoid being arrested at a DUI Checkpoint. Because the cops are supposed to give advance notification of where and when a checkpoint will be held, you can avoid checkpoints by checking back here because I post the DUI checkpoints when I learn of them.

Inherent in the checkpoint requirements is also that there must be a release valve where people who do not want to wait in line at the checkpoint can avoid it.  The Supreme Court has held that people seeking to avoid a checkpoint cannot be stopped. However, if you violate the Vehicle Code in avoiding the checkpoint, the police can stop you for the violation. So making a U-Turn in the middle of a block, which is illegal, will bring you to the police’s attention.

See related articles on What To Do At A DUI Checkpoint and Drug Testing at DUI Checkpoints.

The way to fight your arrest at a DUI checkpoint is to know the law and know how to use the law to hold the police accountable for following proper procedure. If you’ve been arrested after being stopped at a DUI Checkpoint contact us at (213) 479-5322 to learn how we can fight and win your case for you.

* The Alvarado court properly points out that Banks does not do away with the necessity for advance publication of the checkpoint, it merely states that lack of advance publicity alone will not invalidate the checkpoint.
** Wilder holds that where there is a warrantless search the state bears the burden of proving the justify the search and seizure.

The DUI Drug Test At DUI Checkpoints in California: Don’t Do it.DUI Drug Test machine on CHP Car

Portable drug tests at DUI Checkpoints are the LAPD’s new way to invade your privacy while you’re a guest at one of their numerous checkpoints (LA and other counties have hundreds of thousands of dollars of checkpoint grant money they need to spend).

The test purports to be able to tell if the subject has amphetamines, marijuana, cocaine benzodiazepine (the active ingredient in prescription drugs like Xanax) and other illegal substances.

Before you swab, remember: the only test you HAVE to take when arrested on suspicion of DUI Drugs is a Blood Test after Arrest. (This is based on the Implied Consent laws, not HAVE to take based on Fourth Amendment grounds.) The swab test when administered at the checkpoint is the equivalent of the PAS handheld breath tester given to those suspected of being impaired by alcohol. Because of that, there should be an admonition stating that you are free to refuse to take the test without consequence. But there isn’t.

There should be an admonition read, because you are free to refuse the test. So refuse to take the test if asked.

Once arrested the Supreme Court has said that taking a sample of your DNA is a constitutionally reasonable seizure. However, the law in California doesn’t provide for the admission of these drug swab tests as evidence in a DUI, like a Blood Test would be admitted. Many foundational issues exist with respect to the admission of a new technique like saliva swabbing for drug detection.

The LA City Attorney has yet to use one of these portable drug test swabs in an actual trial.

Check out additional articles on What to do at a DUI Checkpoint and Case Law for DUI Checkpoint Arrests.

If you are going out this weekend, make sure to check here for the location of DUI Checkpoints. If you have questions about checkpoints, DUIs or DUIs with drugs call me at (213) 479-5322 or visit my website at

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