The Evidence in Your San Diego DUI Case
Evidence gathered by police in a San Diego DUI case is fairly predictable and can be easily sorted into six categories.
Driving Symptoms:
This first category only holds if an accident is not involved. Driving symptoms could be weaving, lane straddling, unsafe lane changes, erratic driving, etc. These symptoms are also usually what first attracts the police officer to the vehicle. There are twenty different driving patterns that could be possible indications of an intoxicate driver, according to the National Highway Traffic Safety Administration (NHTSA). Speeding, often mistaken for one of these driving patterns, is actually not one of the top 20 patterns. Speeding requires faster reflexes, better coordination, and quicker judgment.
Personal Appearance and Behavior:
Immediately when the officer approaches the vehicle, he will be looking for indications of intoxication. Some signs could be bloodshot eyes, a flushed face, slurred speech, alcohol on the breath, etc. He will then pay special attention to physical actions such as fumbling with a wallet, difficulty exiting the vehicle, leaning against the car for support, problems following directions, etc. An important fact to note: some of these symptoms are so common with DUI cases (such as odor of alcohol, slurred speech, and bloodshot eyes) that the police officer will include them in the reports without the symptoms actually being present.
Field Sobriety Tests:
Also known as FSTs, these tests include twelve or more popularly used exercises. The tests commonly used are:
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Walk-and-turn
- Finger-to-nose
- Horizontal gaze nystagmus (following a small object, such as a finger or pen, from side-to-side with your eyes)
- One-leg-stand
- The Rhomberg test (also known as modified position of attention)
- Hand-pat
- Reciting the alphabet
- Fingers-to-thumb
Unknown to the general public, these test are not mandatory and can be refused without any legal consequences. In a study funded by NHTSA, it was discovered that only three of the FSTs are actually reliable and effective in detecting a drunk driver: one-leg-stand, walk-and-turn, and nystagmus. Although police agencies throughout the country have begun adopting these three FSTs as the “standardized” series of tests, officers in San Francisco have been largely reluctant to do so. Most officers in San Francisco continue to use whichever test they prefer.
“PAS” Tests:
A Preliminary Alcohol Screening unit, or PAS, is a small handheld device San Francisco law enforcement agencies are increasingly using. PAS units were originally created to give a rough indication of the suspect’s blood-alcohol level in the field, to assist an officer in deciding whether to make an arrest or not. In comparison to “breathalyzers”, the PAS units are highly unreliable and primitive. However, many judges are accepting the results from these units as evidence in trials; in many instances, this is the only chemical evidence available. (Please note: as with FST’s, submitting to a PAS test is purely voluntary if you are over 21 years old. There are no legal consequences for refusing a PAS test.)
Chemical Tests:
In the state of California, chemical tests refer to breath or blood tests. Urinalysis can be used when neither breath nor blood samples are available. There are numerous different brands of breath machines used by police agencies, yet they all have one thing in common: Each machine is susceptible to a number of problems, and none of them are reliably accurate in its results.
One of the biggest issues is the fact that the machines are run by a computer that assumes the test subject is average. The reality is that each subject will vary greatly with individual physiology and metabolism. The machines do not actually measure alcohol either; the infrared technology identifies the presence of a “methyl group” in a compound’s molecular structure. Ironically, thousands of compounds contain this group, over a hundred being found in the breath. While blood tests can be more accurate, issues still arise with the results. Some of the more common problems are fermentation of the blood sample, coagulation, and lack of sterilization.
Incriminating Statements:
Because the Miranda warning does not need to be given until after the arrest has been made, the officer is able to ask incriminating questions during his preliminary investigation without any admonition. Any answers to his questions will be admissible. After the arrest has occurred, any incriminating statements in response to interrogation, without a waiver and admonition, are inadmissible. However, statements such as “I might have had too much to drink,” can be stated without interrogation and may be admissible in court, even without a Miranda waiver. Refusing to take a breath or blood test can also be used in trial as incriminating evidence, suggesting “consciousness of guilt”. |
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