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Category Archives: The Arrest

The One-Leg Stand Test

The one-leg stand test is one of three field sobriety tests that have been standardized by the National Highway Traffic Safety Administration, to determine whether a driver is suspect of a DUI. In order to be considered valid, the test must be administered in accordance with specific procedures. If you are ever subject to the one-leg stand test, you should try to remember all of the details of how the test was administered so that your Orange County DUI attorney can explore whether the officer who stopped you complied with the procedures.

Below are some of the rules an officer should follow when administering the one-leg Stand test:
• The test must be administered on a hard, flat surface in a safe location.
• If you have a sufficiently serious physical impairment or are overweight, the test should not be administered to you.
• The officer must clearly explain the test to you and demonstrate the steps.

If the officer who arrests you fails to follow the above procedures or any of the other mandatory procedures for the one-leg stand test, your Orange County DUI defense attorney may be able to obtain a ruling excluding evidence of the results from your trial. Even if he or she is unable to get the results excluded, your DUI attorney will argue the jury should not give the results significant weight because the test was administered improperly.

If your Orange County attorney convinces the jury that your field sobriety test results are not valid, you will be positioned to obtain an acquittal from the DUI charge against you.

To speak with an Santa Ana, Irvine, Costa Mesa, Fullerton, or Anaheim DUI defense attorney free-of-charge, please contact the DUI Law Offices of Chad Maddox at (714) 695-1500.

Non-Standard DUI Tests

Handwriting

According to a research study, the consumption of alcohol, at any level, results in objective changes in a person’s handwriting. However, this conclusion alone is insufficient to measure accurately the blood alcohol content (BAC) of the person providing the handwriting sample, as your Orange County DUI attorney can explain.

In fact, there may be some doubt as to whether or not handwriting is a reliable indicator of alcohol consumption on any level.  For example, one study measured a sampling of 35 individuals who had provided writing samples both before and after the consumption of alcohol.  The researchers’ conclusion: handwriting can not be used as a measure of the BAC of the writer.

Hand pat

This test involves placing one hand in front of you, palm up.  The other hand is placed on top of that hand, palm down. You are instructed by the officer to then:

1. Pat the bottom hand with the top hand;

2. Rotate the top hand so the back of the top hand faces the bottom hand and pat again;

3. Keep doing so alternatively, all the while increasing the speed as instructed until told to stop.

An Orange County DUI attorney understands this is a test that is designed to fail.  Even a completely sober individual may eventually double pat or roll their hand instead of patting one time smoothly as the speed of the rotation increases during the test.

Picking up coins

As with the hand pat test, picking up coins does not involve balancing on a person’s legs, and therefore may be employed if the subject has told the officer he or she has some back, knee, or leg affliction.

It involves instructing the subject to use one hand to pick up multiple coins from a flat surface, such as the hood of a car.  This test, just as the hand pat test, has earned no scientifically validated support as an accurate prediction of sobriety or BAC.

Chad Maddox, an Orange County DUI attorney, can provide counsel and advice to explain your rights if arrested for a DUI.  Mr. Maddox may be reached at (714) 695-1500.

Illegal DUI checkpoints

An experienced Orange County drunk driving lawyer knows how to successfully prepare the defense for a client who has been charged with a DUI that resulted from a roadblock. Police officers commonly use roadblocks in order to stop drivers to see if they are under the influence of alcohol or drugs. However, frequently police offers do not use proper legal procedures for the roadblocks or the stops. There are two significant elements to defeating a DUI that occurs at a roadblock.

First, your Orange County drunk driving lawyer needs to determine if the only purpose for pulling you over was the roadblock. Your lawyer will gather police reports and records on your behalf to see if the police officers had any other reason for the stop, such as a moving violation that was observed prior to the stop.

Secondly, your Orange County drunk driving lawyer will research whether the roadblock itself was constitutional. Your lawyer will secure the evidence needed to determine if any aspect of your stop was unconstitutional. It is surprising how often police officers make errors that violate the constitutional rights of persons charged with a DUI; this could have an impact on whether or not you will be found guilty of DUI.

If you’ve been arrested for driving under the influence and are facing a criminal trial, get the help you need from a dedicated Orange County drunk driving lawyer today. Consult Chad Maddox, an experienced Orange County drunk driving lawyer, today at (714) 695-1500 for a free initial consultation regarding your DUI roadblock incident.

A DUI Checklist

If you are stopped and arrested for a DUI, there are certain pieces of information that your Orange County drunk driving lawyer will want to know about the events that took place at the time of the arrest. The following is a short checklist of things that you should keep in mind so that your attorney can prepare the best case possible for you.

With respect to the arrest itself:

  • Did law enforcement search your vehicle, and if so, was anything found?
  • At what point in the process did the officer tell you that you were under arrest?
  • Were you put in handcuffs?
  • Was a videotape or audiotape made, or were pictures taken during the stop?
  • Were you read your Miranda rights, and did you waive those rights or stay silent?
  • Did you request an Orange County drunk driving lawyer?
  • Were you on a diet when you were arrested?
  • How much sleep had you gotten over the previous two days?
  • Had you taken any medications recently?
  • Do you suffer from any physical disabilities or do you have balance problems?
  • Do you have any mental health problems?
  • Did you burp or throw up during the required observation period?
  • How many breath samples did you give?
  • Did you have any problems giving a sample?
  • Did the operator disturb your breathing pattern at any time during the test?
  • Did the operator make you hold your breath for any amount of time prior to blowing?
  • Were you tested on more than one machine?

Your attorney will also want to know about your health at the time of the arrest:

Regarding the breath test:

If you have gotten a DUI, and you need an Orange County drunk driving lawyer to help you with your case, please call Chad Maddox at (714) 695-1500 for a free consultation.

Anonymous Tips Are Legal

Any knowledgeable Orange County DUI attorney can tell you that the California Supreme Court has found that DUI stops which are predicated on anonymous tips may actually be legal.

In the case, a California highway patrol officer in Santa Ana heard a police broadcast indicating that a 1980s blue van was weaving all over the road and that the driver was possibly drunk. The broadcast also indicated the specific highway location and the direction the vehicle was traveling. As the record from the trial court did not specify who generated the tip, the Supreme Court inferred this to mean it was from an anonymous tipster.

The Santa Ana officer was so situated that he was able to pull over and wait for the vehicle to approach his location. Within minutes, a vehicle matching the tipster’s description passed by. The officer did not personally observe any traffic violations but nonetheless pulled the vehicle over; a DUI arrest subsequently followed. The only reason for the stop was the anonymous tip.

Acknowledging the tip was not only anonymous but also uncorroborated, the Supreme Court nevertheless found the Santa Ana DUI stop lawful based on four factors:

  1. In contrast to a previously-cited Florida gun case, the Court here concluded there was a greater risk to the public from a drunk driver than from the passive possession of a firearm.
  2. The Court did not believe there to be a great likelihood of future false drunk driving tips.
  3. The Court distinguished between the great intrusion of being personally searched (as in the Florida case) and the relatively benign act of being pulled over by the police as in this case.
  4. Here, the tip in fact was accurate in both description and location.

A thorough examination of the facts of your case will provide an experienced Santa Ana DUI lawyer the information required to present the best possible defense on your behalf. If you’ve been arrested for DUI and are facing trial, call Orange County DUI attorney Chad Maddox today for a free initial consultation.

Preservation of DUI Evidence

One of the first things that your knowledgeable Costa Mesa DUI lawyer should do when getting your case ready for trial is to ensure that the scene (along with any evidence that might exist) is secured. When you speak with your attorney, he or she will likely advise you to go back to the place where you took the field sobriety tests and take pictures of the location. Your Orange County lawyer will probably have his or her investigator go with you, if at all possible. Getting pictures of the test location is important, because almost all police reports assert that the area where the field sobriety tests were given was flat and level; however, that is typically not the case.

The majority of field sobriety tests are given either on the side of the road or on a sidewalk, and it’s a known fact that most roads are crowned and most sidewalks are sloped in order to assist with water runoff. Additionally, you and the investigator should also look to see what the lighting conditions were in the area.

Something else that your well-versed Orange County DUI lawyer might ask you is whether or not you made any phone calls from jail. This is important because such calls tend to be made late at night and the person being called is usually asleep; thus, it is highly possible that some or all of the call might have been recorded on someone’s answering machine or voicemail. If any part of the conversation is on the recorder, you should seek to obtain and secure that recording as soon as possible because that recording may show that your speech was not slurred at all. When such evidence is available, it proves to be quite significant when fighting any claims of slurred speech.

If you or a loved one is in need a Costa Mesa DUI attorney, please contact Chad Maddox at (714) 695-1500 for a free legal consultation. You want your case in the capable and experienced hands of our Orange County Law Office.

Signs of Drunkenness: A Flushed Face

There are a variety of causes for people to have a rosy skin tone, the most obvious of which is that your face always appears to have a reddish hue. Even if your complexion is not typically red, there are still plenty of other reasons for having a flushed appearance. For instance, getting sunburned can redden your skin. Also, for those who wear makeup, blush can be used as part of their makeup regimen, which can also make the cheeks appear to be rosy.

Furthermore, when people get embarrassed, mad, or scared, they may end up with a flushed face. And in the cases of those who have been stopped by a police officer, it would not be uncommon for them to be upset or nervous when they are confronted, and accordingly, they will experience a quick flow of blood to the face.

During the cross examination of the police officer involved with your case, a skilled Orange County drunk driving defense attorney might want to watch to see whether the officer ever becomes embarrassed about something during his or her examination. For instance, if the officer misspells a word on a drawing or forgets the prosecutor’s name, he or she may become embarrassed and experience a flushed face due to the pressure of the embarrassment. Should that happen, it would be an excellent time for your attorney to ask the officer about perfectly sober people experiencing a flushed face.

If you need an experienced Orange County drunk driving defense attorney, please call Chad Maddox for a free consultation.

DUI Defenses

A defense is a legal excuse which protects a person from being convicted.  The most common example which most people understand is the defense of “self-defense”. If someone tries to harm you, you have the right to defend yourself (using reasonable force).

In a DUI case, there are very few actual legal “defenses”.  Often, people are found not guilty of DUI because they can effectively explain the facts to the jury in a way which demonstrates that they are in fact Not Guilty – that the facts do not amount to proof beyond a reasonable doubt. Consider these explanations:

FACTUAL DEFENSES

  1. Your Blood Alcohol Level Was Lower When Driving Than When Tested

  2. You were effected by lack of sleep, not alcohol. See Sleep depravation and Sleep – Fatigue, alcohol and impairment

  3. The Agency Maintaining the Testing Equipment Has Not Complied With The California Code Of Regulations, which raises doubts as to the accuracy of the test performed in your case.

  4. You had a medical condition such as GERD or diabetes which effected the chemical test.

  5. The breath test assumes certain values which may not be appropriate for you (breath tests measure a sample from you which is then converted into a number representing the alcohol in your blood using a calculation of 2100 to 1 (partition ratio) which is based on an average).

  6. Prosecution experts assume certain facts when they estimate your BAC at the time of driving.  These assumptions include a formula commonly referred to as the Widmark formula. This formula has many flaws, such as over-estimating the BAC for overweight drivers. See Widmark not appropriate for overweight people

  7. Prosecution experts assume certain facts about absorption, peak, and elimination of alcohol in a person over time.  These assumptions will over-estimate a driver’s BAC under certain circumstances.  For example, if the driver was under a lot of stress. See Stress causes over-estimate of BAC

  8. A urine test involves calculating the alcohol in the urine sample, and then calculating how much alcohol was in the blood based on that concentration.  This method assumes a certain correlation between urine concentration and blood concentration. It is scientifically untrustworthy. See Urine unpredictable

  9. The blood sample was not properly refrigerated, causing an increased risk of fermentation, which causes the test to provide a false-high number. See Temperature effects Blood test

PROCEDURAL DEFENSES

There may be procedural problems which prevent the case from going forward, and lead to a dismissal.

  1. The Officer Had No Legal Right To Pull You Over, making all the evidence obtained a product of an illegal arrest.

  2. You Were Not Given The Option To Take A Breath Or Blood Test, making the blood sample obtained a product of an illegal investigation.

  3. You Were Questioned In Violation Of Your Miranda Rights, making any statement you made inadmissible.

  4. The Sobriety Checkpoint That You Were Stopped At Was Not Run Properly, making it an illegal stop.

  5. You Have Been Denied Your Right To A Speedy Trial, requiring dismissal.

To fully understand what happened in any case, you have to become familiar with how the body absorbs, and eliminates alcohol.  When people first learn about this process, they may over-simplify it.  The foremost experts in the world have even criticised how others interpret the evidence, when they fail to recognize the wide variations in critical factors.  For axample, women taking birth control pills may absorb and eliminate alcohol differently than a woman who is not. When estimating thier BAC at the time of driving, an expert should account for these variables so that they do not mislead a jury into convicting an innocent person. Consider the following article by one of the worlds most respected experts: absorption, distribution and elimination of alcohol

The Field Sobriety Tests

Field Sobriety Tests fall into two categories: Those that are standardized and those that are not.  Standardized tests are tests which have been evaluated scientifically in studies (by NHTSA – the National Highway Traffic Safety Administration), and should be given exactly the same way by every officer, and evaluated exactly the same way by every officer. Those that are not standardized might as well be a product of the officer’s imagination.

Examples of FST’s which are not standardized include:

  • Alphabet test
  • Finger count test
  • Count backwards
  • Finger to nose touch test
  • Modified balance test – eyes closed, head tilt, 30 second estimate

These tests have never been proved to predict impairment. The Standardized tests are not much better.  The scientific studies actually reveal how unreliable the tests are, even when administered and evaluated properly.

Don’t just take my word for it. Check the numbers yourself.  There is a summary of the numbers, and what they mean below.  Below that, are links to the actual studies by NHTSA.

According to NHSTA:

OLS: 65% accurate: Student Manual, VIII-1, VII-7

WAT: 68% accurate: Student Manual, VIII-1, VII-6

HGN: 77% accurate: Student Manual, VIII-1

A copy of the NHTSA Student Manual can be found here:

STUDIES:

HGN only:

Gregory W. Good & Carol R. Augsburger (1986) Use of Horizontal Gaze Nystagmus as a Part of Roadside Field Sobriety Testing, 63 American Journal of Optometry & Physiological Optics, 467:

Officers’ Decisions
Arrest Don’t Arrest Total
Over BAC Limit 2140 83 2223
Under BAC Limit 168 38 206
Total 2308 121 2429
% Drunk Drivers in the Sample: 92% (Base Rate)
Group Error Rate
Everyone 10%
Drivers Over Legal BAC Limit 4%
Drivers Under Legal BAC Limit 82% False Positive Rate
Drivers Who are Arrested 7% Percent False Positive
Drivers Who are NOT Arrested 69%
Group Accuracy Rate Technical Term
Everyone 90% Overall Accuracy
Driers Over Legal BAC Limit 96% Sensitivity
Drivers Under Legal BAC Limit 18% Specificity
Drivers Who are Arrested 93% Positive Predictive Power
Drivers Who are NOT Arrested 31% Negative Predictive Power

FSTS:

Colorado (1995) (Mean BAC was .152)

Marcelline Burns & Ellen W. Anderson, Field Evaluation Study of the Standardized Field Sobriety Test Battery, Final Report Submitted to the DOT, November 1995

According to NHTSA:

“Correct arrest decisions were made 93% of the time based on the 3-test battery (HGN, WAT, OLS).”  Student Manual, VIII-2

Officers’ Decisions
Arrest Don’t Arrest Total
Over BAC Limit 163 21 184
Under BAC Limit 12 38 50
Total 175 59 234
% Drunk Drivers in the Sample: 79% (Base Rate)
Group Error Rate
Everyone 14%
Drivers Over Legal BAC Limit 11%
Drivers Under Legal BAC Limit 24% False Positive Rate
Drivers Who are Arrested 7% Percent False Positive
Drivers Who are NOT Arrested 36%
Group Accuracy Rate Technical Term
Everyone 86% Overall Accuracy
Driers Over Legal BAC Limit 89% Sensitivity
Drivers Under Legal BAC Limit 76% Specificity
Drivers Who are Arrested 93% Positive Predictive Power
Drivers Who are NOT Arrested 64% Negative Predictive Power

Florida (1997) (Mean BAC was .150)

Marcelline Burns & Dioquino (1997) A Florida Validation Study of the Standardized Field Sobriety Test Battery

According to NHTSA:

“Correct decisions to arrest were made 95% of the time based on the 3-test battery (HGN, WAT, OLS).”  Student Manual, VIII-2

Officers’ Decisions
Arrest Don’t Arrest Total
Over BAC Limit 197 9 206
Under BAC Limit 9 41 50
Total 206 50 256
% Drunk Drivers in the Sample: 80% (Base Rate)
Group Error Rate
Everyone 7%
Drivers Over Legal BAC Limit 4%
Drivers Under Legal BAC Limit 18% False Positive Rate
Drivers Who are Arrested 4% Percent False Positive
Drivers Who are NOT Arrested 18%
Group Accuracy Rate Technical Term
Everyone 93% Overall Accuracy
Driers Over Legal BAC Limit 96% Sensitivity
Drivers Under Legal BAC Limit 82% Specificity
Drivers Who are Arrested 96% Positive Predictive Power
Drivers Who are NOT Arrested 82% Negative Predictive Power

San Diego (1998) (Mean BAC was .138)

Jack Stuster & Marcelline Burns (1998) Validation of the Standardized Field Sobriety Test Battery at BAC’s Below .10 Percent

According to NHTSA:

“Correct arrest decisions were made 91% of the time based on the 3-test battery (HGN, WAT, OLS) at the 0.08% level and above.”  Student Manual, VIII-2

Officers’ Decisions
Arrest Don’t Arrest Total
Over BAC Limit 210 4 214
Under BAC Limit 24 59 83
Total 234 63 297
% Drunk Drivers in the Sample: 72% (Base Rate)
Group Error Rate
Everyone 9%
Drivers Over Legal BAC Limit 2%
Drivers Under Legal BAC Limit 29% False Positive Rate
Drivers Who are Arrested 10% Percent False Positive
Drivers Who are NOT Arrested 6%
Group Accuracy Rate Technical Term
Everyone 91% Overall Accuracy
Driers Over Legal BAC Limit 98% Sensitivity
Drivers Under Legal BAC Limit 71% Specificity
Drivers Who are Arrested 90% Positive Predictive Power
Drivers Who are NOT Arrested 94% Negative Predictive Power

The 3 validation studies (Colorado – 1995, Florida – 1997, and San Diego – 1998) all dealt with a small test group – all under 300 people total.

In each case, most of the 300 people were over the limit (79%, 80%, and 72% respectively).  How much over the limit? The Mean BAC level was .152, .150 and .138%.  at or above twice the legal limit.

So, in each case, if the officers made the decision to arrest ALL the subjects, they would have been right most of the time (79% right, 80% right and 72% right).

For the FST’s to really improve the officer’s chances of a correct decisions, there should be a BIG increase in how often they were right…

Let’s see what NHTSA says:

93% right in the Colorado study.  Really?  No.

The number 93% comes from the following calculation:  Take the total correct arrests they made, and divide that by the total arrests.  This number does not represent ANY of the incorrect decisions related to sober people (those under the limit).

How often were the officers wrong when it came to sober people?  24%… so they were not correct 93% in all the decisions they made to arrest.

The total number of correct decisions (correct decisions to arrest and correct decisions not to arrest) come to 85% of the decisions.

The officers were only right 6% more than if they had simply arrested everyone.

But most importantly, they were wrong to arrest sober people 24% of the time.

And don’t give them too much credit for their correct decisions regarding those over the legal limit… they were right to arrest 93% of the time when they were dealing with someone over the limit right?  What was the mean BAC for the subjects?  .152%.  They were dealing with subjects nearly twice the legal limit, and were only right 93% of the time… they still let 7% go.

So to summarize this study, the cops decided to arrest drivers with BAC’s that were twice the legal limit 93% of the time and decided to arrest the sober driver 24% of the time.

95% right in the Florida study.  Really?  No.

The number 95% again comes from the following calculation:  Take the total correct arrests they made, and divide that by the total arrests.  This number does not represent ANY of the incorrect decisions related to sober people (those under the limit).

Lets do the same calculations here… How often were the officers wrong when it came to sober people?  18%…

Again, the mean BAC here was high – .150%.

They didn’t decide to arrest all these individuals with BAC twice the legal limit.

Yes, those few people that were sober (50 of them), 9 would be arrested.  18%.

91% right in the San Diego study.  Really?  No.

The number 95% again comes from the following calculation:  Take the total correct arrests they made, and divide that by the total arrests.  This number does not represent ANY of the incorrect decisions related to sober people (those under the limit).

How often were the officers wrong when it came to sober people?  29%…

Again, those over the limit had a high BAC – mean value was .138, no close call.

Of course, officers didn’t decide to arrest all of them.

Of those that were under the limit (83 people), 24 would be arrested… 29%.

This is the only study that purports to validate the FST’s to determine arrest decisions for BAC levels of .08%… the other two studies were trying to do it at .10%…

And no surprise, the officers were wrong more when they were trying to determine whether to arrest someone based on a lower BAC standard.

If the person was under the limit, they were wrong 29% of the time

In all these studies, the officers had more correct decisions when it came to deciding to arrest the subject that was truly over the limit… but the mean BAC was .138, .150 and .152%… how hard could it have been to correctly decide to arrest these subjects?  The true test should be when the FST accurately help the officer decide to arrest or not when dealing with someone that is a close call… especially the sober driver that just might not be able to perform these tests well for other reasons.

REMEMBER, all 3 studies dealt with small test groups of less than 300 people…

Lets take a look at the numbers from a larger test group…

The Wood & Augsburger study on the HGN test in 1986:

2429 people in this study.

Again, no surprise, most of them were over the legal limit: 92%

So, if the officers decided to arrest them all, they would be right 92% of the time.

But they used the HGN test… the one that NHTSA says is the most reliable:

How many times were they right in this study?  Not just decisions to arrest those over the limit, but all their decisions to arrest those over the limit and all their decisions to not arrest sober people?  90%

Remember, only 8% of the people were sober… of the sober people in the study, how many wrong decisions did they make?  That is, how often did they decide to arrest the sober person?  82% of the time.

The bottom line is that these tests don’t work.

The officer thinks they work because they are only told about the % of correct decisions to arrest the drivers who were way over the limit.  Right… I mean, you take an officer, and in his training, tell him that if the subjects fail these tests, you’ll be right 93% of the time, 95% or 91%… then he goes out and makes his arrest based on the tests, and thinks he’s right… of course he would.  But what about the 24% sober people that were arrested?  18%?  And 29%?

You know what else these studies tell us?  Sober people fail the tests…

The 29% of the people that were under the limit were chosen to be arrested because they failed the tests.

How many sober people failed the test in the last study we discussed?  82% of them.

(get this from cross of the cop… use NHTSA manual to refresh his memory… 93%, 95%, and 91% respectively on page VIII-2 of the Student Manual… get him to also admit that the NHTSA manual does not say the percentage of wrong decisions were made regarding the subjects under the limit).

Get the actual numbers from your expert, or their expert if you can.

1998 San Diego Study

1997 Florida Study