By Daryl B. Thompson
Orange County’s Premier
DUI Defense Attorney
(714) 740-1095 or (866) DUI-BUST
Defending DUI Charges are easiest to explain by breaking the case down to phases.
Phase One – Vehicle in Motion (Driving)
Phase Two – Initial Contact With Driver
Phase Three – Standardized Field Sobriety Testing
Phase Four – Chemical Testing
I.
VEHICLE IN MOTION (DRIVING)
In Phase One (Vehicle in Motion) the manner in which the car is being driven is the focus of the officer’s attention. According to the National Highway and Traffic Administration (NHTSA) there are approximately twenty different clues to potential drunk drivers. Some of these clues include speeding, weaving, lane straddling, driving with no headlights, driving wrong way in traffic, etc.
If the officer only notices one of these possible twenty items, that means the balance of the driving was fine. For example, suppose the office states the driver was speeding. Then on cross-examination, the defense will ask the following series of questions:
Question: Was the car swerving within its lane?
Answer: No.
Question: Were the headlights on?
Answer: Yes.
Question: Did the vehicle make any illegal turns or maneuvers?
Answer: No.
Question: Did the vehicle make a turn and fail to use its turn signal?
Answer: No.
A good DUI defense attorney can reduce the alleged bad driving to almost nothing with a thorough, effective cross-examination.
My personal favorite are DUI checkpoints or “sobriety checkpoints.” There is no bad driving. The car is stopped at random. Additionally, the checkpoint must be set up on a specifically constitutionally accepted manner. A good DUI defense attorney will subpoena the necessary records from the arresting agency, and if the police did not follow the constitutionally mandated guidelines, file a motion to dismiss.
II.
INITIAL CONTACT
During the initial contact the officer will say as he approached the vehicle he detected an odor of alcohol coming out of the window of the vehicle. He will then testify that he noticed there was an odor of alcohol about the driver, and the driver had red and watery eyes. The officer will then state that he had the driver exit the vehicle and walk to the curb and sit down. A good DUI defense attorney will attack this testimony as follows:
Question: Officer, did you ask my client for his drivers license, registration and proof of insurance?
Answer: Yes.
Question: Did he hand it to you?
Answer: Yes.
Question: Did he fumble or delay in responding to your request for his driver’s license, registration and proof of insurance?
Answer: No.
Question: Did he pull over promptly after you turned on your red and blues?
Answer: Yes.
Question: Did he park appropriately next to the curb or did he pull into a parking lot and park appropriately with the marked stall?
Answer: Yes.
Question: Did he use the door to support himself as he exited the vehicle?
Answer: No.
Question: Did he support himself by leaning on the car as he walked to the curb?
Answer: No.
Question: Did he trip, stumble while walking to the curb?
Answer: No.
The list of questions an experienced and trained DUI defense attorney can ask is endless.
The officer is set up for this form of cross-examination by an experienced DUI defense attorney. A good DUI defense attorney will use the officer’s own police report to your advantage.
III.
STANDARDIZED FIELD SOBRIETY TESTS
There are three Standardized Field Sobriety Tests (SFSTs). The first is the Horizontal Gaze Nystagmus (HGN), the One Leg Stand (OLS) and the Walk and Turn (W&T). These tests were created by the Southern California Research Institute for NHTSA. They are universally used throughout the United States. These tests must be administered in exactly the same manner and on flat and level ground to be of any value, whether the tests are being administered in Orange County, California or Atlanta, Georgia.
Each one of these tests must be administered exactly the same way each time they are given. This requirement is in the protocol of the tests.
An expertly trained DUI Defense Attorney will be qualified both to administer these tests and be able to cross-examine the officer in great detail on the administration and interpretation of these tests.
HORIZONTAL GAZE NYSTAGMUS – The officer is looking for a small bouncing of the eye. This is caused by something affecting the central nervous system. It could be from a head injury, a sports injury, consumption of alcohol or drugs. The test is the same test given by physicians in emergency rooms throughout this country when dealing with a patient who may have been involved in an automobile accident or have sustained a blow to the head.
If you have ever played sports and had a head injury, or sustained a head injury in some other way, you may have naturally occurring nystagmus. Approximately 40% of the population may very well have naturally occurring nystagmus.
ONE LEG STAND – In this test, the driver is told to stand on one leg. Which leg is of the driver’s choice, not the officer’s. If the officer tells you which leg to use, or makes you use both legs, the test has been improperly administered. People are right or left leg dominant, just as they are right or left-hand dominant. That’s why it’s imperative that the officer let the driver choose which leg to stand on.
WALK AND TURN – The driver is told to place his right heel in front of his left foot. The driver is then told to take nine steps in an imaginary straight line, touching heel to toe, with his arms at his side, watching his feet, counting out each step. He is then directed, when he reached the ninth step to pivot on his left foot and walk back in the same manner. It is imperative that this test be administered on a flat and level surface.
Your attorney should visit the scene where the tests were administered and photograph and/or video the site to establish whether or not it was flat and level, and free of debris that could affect the performance of these tests.
I had one case recently where the officer administered the Field Sobriety Tests on a side street that had an eight percent grade sign to warn drivers of the steepness of the incline. That evidence would not have been discovered by counsel had I not gone to the scene where the FSTs were administered.
IV.
CHEMICAL TESTS
Modernly, only blood or breath testing is available in DUI cases. Urine tests are seen occasionally in drug cases.
Breath Testing – There are two basic types of breath machines used in California. The first is the Fuel Cell. The AlcoSensor IV breath testing device is commonly used in Orange County, California, as a Preliminary Alcohol Sensing device and the AlcoSensor IV-XL @ POA is being used as Evidentiary Breath Testing.
Infrared Breath Testing – This is a larger machine that uses infrared technology to measure a breath alcohol concentration.
Both of these machines have their weaknesses. The Fuel Cell or the AlcoSensor IV-XL cannot detect the difference between mouth alcohol, i.e., bad teeth, bleeding gums, dental appliances, etc., and deep lung alveolar air that it is supposed to be reading.
That’s why in many instances you’ll have someone who had two glasses of wine at dinner, and tested with a very high BAC. The machine is not properly reading the breath sample taken.
Blood Testing – Modernly, all blood testing is done on a gas chromatograph. It is, in fact, not actually testing the blood, but the air space above the blood. The blood is transferred by a diluter to small vial, the top of which is crimped. There’s a small headspace between the blood in the vial and top of the vial. It is that headspace or air that is measured by the gas chromatograph.
It is imperative that a highly trained DUI attorney obtain copies of the gas chromatograph and the maintenance and calibration records for the machine used to make sure that is has been maintained properly and is operating properly. Additionally, a sample of the blood taken from the driver should be tested by an independent lab at the request of your attorney to make sure that the alcohol level, sodium fluoride and potassium oxalate levels. The vial that the driver’s blood is place in should contain sodium fluoride and potassium oxalate. These levels must be checked. The potassium oxalate is present to prevent coagulation of the blood. Sodium fluoride is present to prevent bacterial contamination. If any of these levels are wrong, it can impact the testing of the blood.
In this short presentation, I have tried to present the issues in a DUI case, that an experienced trained DUI Defense Attorney is going to look at. This is by no means sought to be exhaustive, but just some primary issues to show how necessary it is to get a good DUI Defense Attorney to evaluate your case.
