Police in San Diego Country Estates make DUI arrests all the time, but not all these arrests are genuine. If you are a victim of a DUI arrest, San Diego DUI Attorney can increase the possibility of your acquittal or reduction of the charges. Our attorneys will review your case, and in case the police make some of the following mistakes, the arrest will be termed unlawful, and the outcome of the case will be in your favor.
Common Policing Mistakes in DUI Investigations
Law enforcement officers should follow specific guidelines when conducting DUI investigations. But unfortunately, they make policing errors that defense attorneys exploit to challenge DUI charges. Some of these mistakes include:
Lack of Reasonable Suspicion for an Investigative Stop
California PC 836a requires police to have likely cause before stopping a driver or motorist. Likely or probable cause means that the officer making the investigative stop must have reasonable grounds or articulable facts that you were breaching the law at the time of driving.
When stopping a motorist on the road, police need reasonable suspicion, which is a lesser standard than probable cause. The initial stop, therefore, might not require likely suspicion. But if the police have a reasonable suspicion that you are DUI, they might make a traffic stop. For instance, if police notice that you are evading or running a stop sign and you are coming from a direction that has many bars or nightclubs, this might give them a likely cause to make an investigative stop.
When you are arrested, the officer who made the traffic stop must state in his or her report the reason for pulling you over. Some of the reasons they might indicate in the report for the investigative stop are:
Illegal and unsafe lane splitting
Rolling a stop sign
Sleeping on the side of the road
Note that in DUI charges, the police don’t need reasonable suspicion that you were drunk or drugged to make the stop. However, if the investigative stop was due to a hunch, the evidence gathered after the stop will be excluded.
Also, it’s vital to understand that police don’t need probable cause at a checkpoint to make a stop as long as the sobriety checkpoint is legal. The law permits field officers at a checkpoint to stop motorists using a specific criterion and make observations of the vehicles. If the criteria provided by PEN 863a or that of a checkpoint is not adhered to when police are stopping a motorist, your San Diego County Estates DUI Attorney will know where to look to prove that the stop was unlawful. In case the attorney succeeds in demonstrating the stop was illegal, all the discovery gathered from the stop will be dismissed.
Failure to Obtain a Drinking Pattern
The accuracy of BAC results is very instrumental when prosecuting DUI charges. If the arresting officer conducted the BAC test while the alcohol is still being absorbed in the body, then the results will not necessarily indicate your BAC when you were operating the car. The law, however, has the rebuttable presumption that if your BAC level is .08 percent or above, you are under the influence.
The common policing mistake when it comes to observing drinking patterns is the failure by law enforcement officers to produce statements from victims of DUI arrests showing the number of drinks they had and the time they had their last drink. If an officer fails to inquire from you when you had the last drink and the number of drinks you had, even if the BAC results indicate your blood alcohol level exceeded the legal limit, that will not be enough to show your BAC at the time of being behind the wheel.
You can demonstrate the number of drinks you had and the period within which you had them using the receipts from the bar or restaurant where you were drinking. Also, waitresses and bartenders can give the testimony or statement on the number of drinks and whether you showed any signs of intoxication when you left the establishment.
Chemical or blood tests in DUI investigations are conducted several hours after the traffic stop. Approximating your alcohol levels when you were driving becomes difficult hence the reason for the introduction of expert witnesses. The experts make use of retrograde extrapolation to calculate your BAC based on the number of drinks and when you last had a drink. If the arresting officer didn’t bother to get testimony on the number of beers or drinks you had, and when you took the last, calculation of BAC using retrograde extrapolation becomes challenging. Failure to have a drinking pattern that could be used to calculate the BAC level when you were driving will make the results invalid.
Administration of Field Sobriety Tests without Likely Cause
A traffic or equipment violation could result in traffic stops under suspicion of drunk or drugged driving. When this happens, the officer might request you to perform FSTs. The standard FSTs include:
Gait and run
Standing on a single leg
Horizontal Gaze Nystagmus
The tests aim at showing that your capacity to follow directives or coordination has been reduced by alcohol.
Many police officers make mistakes when administering the FSTs because, at times, they ask motorists to perform the tests without any reason. Remember, a traffic or equipment violation doesn’t mean you are under the influence. Sober people also violate traffic and equipment rules. After the stop, the officer is supposed to observe you for signs of intoxication. If the officer observes these signs, then they have a reason for the FSTs. But if you didn’t show any symptoms of impairment and the officer went ahead with FSTs, it means the tests shouldn’t have been administered, and the results of the tests shouldn’t be used as evidence against you.
Where an officer has likely cause to conduct the FSTs, he or she might also make the mistake of administering these tests incorrectly. If the officer decides to conduct a walk and run test, there are several instructions he or she should issue correctly. In this test, you should:
Walk in a straight line with the heel touching the toe of the standing foot
Make nine treads
Make a turn using a single foot
Retain the hands sideways
Count each tread or step at a time
Keep an eye at your feet, and
Get back to where you started in steps in the same way.
During the tests, you should master these instructions. Failure to recall the above instructions indicates that you are impaired. However, the good news is that some officers give the wrong instructions. If this happens, the tests will be deemed by your San Diego Country Estates DUI Attorney as an invalid indicator of impairment.
In case the officer requests you to stand on one leg as an FST, you should stand on the leg with the other leg straight and hands on the sides for thirty seconds. You will also be required to count each second until the time for the stand is over. If you hop or sway, the officer will conclude you are impaired.
If the one-leg stand instructions by the officer were incorrect, then the prosecution cannot rely on the test as evidence.
In the Horizontal Gaze Nystagmus, the officer holds a finger or pencil right on your face and tells you to track its movement. While you are doing this, the officer will be watching out for involuntary jerking of the eyes. The tests are usually incorrectly administered because officers do not account for the involuntary eye jerking that occurs even when a person is sober.
Generally, FSTs are considered unreliable because the officers conducting the tests usually administer them incorrectly, rendering the results invalid. The instructions are given too fast, such that those who are taking them forget. Again, the officers have no technique of telling how someone could have done in the tests irrespective of the circumstances.
Failure to Wait for 15 Minutes Before Conducting Breath Tests
Title 17 of the California CR 1219.3 requires the arresting officer to observe you for fifteen minutes before administering a breath test. The officer doesn’t need to keep an eye on you the whole time. The essential thing is that he or she stays within proximity. The reason officers are required to keep an eye on you for this duration is to ensure that you don’t smoke, eat, drink, or regurgitate because these might tamper with the results.
Officers violate this rule by transporting a suspect of drunk driving in a caged back seat to the police station. After getting to the station, they leave the suspect alone for some time as they make preparations for the test. Others will observe the suspect but fail to note the time when the observation began. When this happens, your San Diego Country Estates DUI Attorney could argue that the violation of title 17 by the officer unduly influenced the results rendering them unreliable.
Take note that failure by the officer to observe you for fifteen minutes will not mean the test results will be excluded from the evidence. What it does is put doubt in the heads of the jury about the weight of the proof.
Not Keeping Track of Essential Details
The prosecution carries the burden of proof in DUI cases. It means that they have to show that the BAC tests can be relied upon to prove impairment. Whenever you drink alcohol, it takes time before the whole amount is absorbed in the body. It means if you get behind the wheel immediately after drinking, your BAC might be within the legal limit because it hasn’t been fully absorbed.
If a traffic stop happens and the officer detains you, if BAC tests are not conducted right away, then by the time they are taken, your BAC level might have risen to .08 percent or higher while you are not driving. The food in your stomach, psychology, and body metabolism all play a pivotal role in the way alcohol is absorbed in the body. As mentioned earlier, the police must take testimony on when you took the last drink. The prosecution relies on this to counter the rising blood alcohol defense.
According to VC 23152b, driving with a BAC of .08 percent or more is unlawful if the BAC test results were obtained within three hours of driving. Your San Diego Country Estates DUI Attorney can use this to your advantage and refute the presumption by arguing that your blood alcohol level was rising when the arresting officer conducted the test sixty minutes or above after being behind the wheel. Expert witnesses and receipts from the place you were drinking will be required to prove the assertion.
Not Obtaining Two Breath Samples
The person operating the breathalyzer test is required to take two samples of your breath. The results from these samples shouldn’t differ by a margin of more than .02 grams. If the margin exceeds the one provided by title 17, then the officer will have to conduct a breath retest. Policing errors occur in this situation when the officer fails to notice that the two tests are within .02 grams of each other and presents the tests as valid.
Not Admonishing in a Chemical Test Refusal
Before administering a chemical test, VC 23612 provides a language that must be admonished to the suspect on the consequences of failing to submit the test. The reprimand is usually published behind the DS 367, for the officer to read it to you.
When reading the caution, the police will clarify why the test is necessary, the obtainable options for the test you could choose from, and a warning that failure to submit the test would result in particular consequences. The consequences of not obtaining a chemical test include:
Driver’s license suspension for one year
Two years of driver’s license revocation if you have a prior DUI conviction
Thirty-six months of driver’s license if you have a second or subsequent DUI conviction.
The officer is also required to read the admonishment clearly so that you, as the driver, can hear. If there were noise in the background hindering the DUI suspect from hearing, the admonishment would be termed as not properly administered. The officer is required to read the language printed in DS 367 and not to use his or her words as this could be misleading to the driver.
In case the peace officer didn’t read the caution, you will avoid driver’s license suspension. Also, if at the time of reciting the officer gives you the wrong duration of license suspension, the period of suspension will be reduced if the time of suspension read is less than the one provided for by the law.
Failure to Maintain Chain of Care in Blood Extraction
When administering a blood test, there is a criterion in the manner in which a blood sample is drawn, marked, and properly secured. When presenting evidence before the jury, the prosecution must demonstrate that the blood sample was properly labeled and stored. The chain of custody is critical because evidence cannot be introduced in court without the laying of a proper foundation. The prosecution must account for the storage of the sample since it was taken from the DUI suspect and evaluated. Everyone who handled the sample must be identified, especially the technician who took the sample because he or she is responsible for labeling and putting it in a container for safekeeping.
If the blood sample taken after the arrest didn’t follow the protocol set aside, your San Diego Country Estates DUI lawyer could have the court overpower the blood sample from the evidence on the basis that it is contaminated. If the motion to suppress the evidence isn’t granted, your San Diego Country Estates DUI Attorney could assert that the chain of custody wasn’t maintained, causing reasonable suspicions of your guilt.
Not Obtaining a Warrant Before a Forcible Blood Draw
In the past, arresting officers were allowed to draw blood from DUI suspects where a fatal accident has occurred. The reason for a forced blood draw is the fact that it took longer to obtain a warrant, and by the time the officer has the warrant, the BAC levels of the suspect will have dropped.
After 2013, things changed because of technological advancement that allowed police officers to obtain a warrant faster. An officer can get the warrant electronically, enabling him or her to draw the sample and alcohol dissipates.
If today an officer draws a blood sample by force without a warrant, even if the results show you were DUI, not obtaining the warrant renders the outcome of the blood sample inadmissible in court. In cases where the officer restrained you to extract the blood sample without a warrant, your DUI defense attorney could even sue the officer because of his or her conduct. Suing an arresting officer could push the court to withdraw the DUI charges against you.
Copy Pasting Police Report Without Changing Facts
The majority of arresting officers take time to prepare the police report detailing the likely cause of the traffic stop, holding of the suspect, and the arrest. However, certain times officers might take shortcuts during report preparation. The shortcut involves copying the content of a similar previous case and pasting it to the current. Many officers have been disciplined for such acts in the past.
Your San Diego Country Estates DUI Attorney should register a Pitchess motion to have such an officer investigated for the conduct. If it is found the officer has engaged in behavior in the past, the court will rule in your favor.
Find a Drunk Driving Attorney Near Me
San Diego DUI Attorney is available if you are in San Diego Country Estates, and you believe policing mistakes led to your DUI arrest and charges. Call us at 619-535-7150 for an evaluation of your case.