In California, Driving Under the Influence, or DUI, (commonly called DWI, or Driving While Intoxicated, in other states) is a serious offense. You could be stopped by a State Trooper in Los Angeles, San Diego or San Jose; or by a County Sheriff in San Francisco, Long Beach or Fresno; or by a local Police Officer in Sacramento, Oakland or Santa Ana. Regardless of which law enforcement Officer stops you along California’s fourteen thousand miles of public roadways, how you perform on your Field Sobriety Test can be crucial. This often determines whether you continue your scheduled trip or receive a DUI arrest. In court, the District Attorney will ask the arresting Officer to recount every detail of your Field Sobriety Test. Throughout California, law enforcement Officers depend on the Field Sobriety Test to measure a driver’s sobriety or lack thereof.
This Field Sobriety Test, which Officers ask drivers suspected of DUI to perform, is aptly named as it is done “in the field”—wherever your car stops when the Officer pulls you over. Even novices on DUI law can foresee potential obstacles arising from performing such a potentially life-changing test roadside. In court, even Standardized Tests given by medical professionals in controlled environments are often challenged.
Before going into detail about the variety of issues that can go awry as Officers conduct the Field Sobriety Test, first let us examine the penalties for California DUI convictions (as outlined in the California Highway Safety Office’s website).
DUI in California is defined by a BAC result of 0.08% or higher; exceptions to this include:
- 0.04% if driving a commercial vehicle;
- 0.01% for drivers under age twenty-one; and
- 0.01 for drivers already on DUI Probation.
Drivers should note that you could be arrested and convicted for DUI solely based on impaired driving skills, even if your BAC is less than 0.08%.
Once arrested for a DUI offense, your driver’s license will be immediately confiscated. You will be issued a temporary license, which you may use for thirty days only. You have ten days to request an administrative hearing, at which you may try to refute the DUI charge. At the end of your suspension period (see below), you must pay $125 and show proof of financial responsibility (i.e. liability automobile insurance) to have your license re-issued
- Refusal to take a BAC test (Adults): If you were 21 years or older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:
- A first offense will result in a 1-year suspension.
- A second offense within 10 years will result in a 2-year revocation.
- A third or subsequent offense within 10 years will result in a 3-year revocation.
- Refusal to take a BAC test (Minors): If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a BAC test or other chemical test:
- A first offense will result in a 1-year suspension.
- A second offense within 10 years will result in a 2-year revocation.
- A third or subsequent offense within 10 years will result in a 3-year revocation.
- First DUI Conviction (Non-Injury–Misdemeanor)
- Fines ranging from $390 to $1,000, plus possible additional punitive charges
- A jail sentence of at least forty-eight hours, but not to exceed six months
- License suspension for four months (which may be shortened to thirty days if you can prove hardship)
- Possible impounding of motor vehicle
- Completion of a State-licensed Drug and Alcohol Education and Counseling Program lasting thirty hours over three-months. (If the BAC is 0.20% or higher, the program will last sixty hours over nine months.) The convicted offender pays for these programs.
- Probation for three to five years: you do not meet with a Probation Officer during this time, but the court will not be lenient if you are charged with an alcohol-related offense during this time
- Possible court-ordered installation of a certified ignition InterLock system on any vehicle driven by the convicted offender. Fees to operate an InterLock system for one year, including installation, can easily exceed one thousand dollars and are paid by the convicted offender. (The Interlock system requires a breath sample before starting the vehicle and at random points while driving the vehicle. If the sample is below the allowed BAC limit (usually 0.02% to 0.04%), the car will operate. If the sample is above the allowed BAC limit, the car will not start or will cease to operate.
- Second DUI Conviction within Ten Years of a Prior DUI Conviction (Non-Injury–Misdemeanor)
- Fines ranging from $390 to $1,000, plus possible additional punitive charges
- A jail sentence of at least ninety days, but not to exceed one year
- License suspension for one year
- Possible impounding of motor vehicle
- Completion of a State-licensed Drug and Alcohol Education and Counseling Program lasting seventy hours over twelve months. The convicted offender pays for these programs.
- For Second DUI Conviction: Probation for three to five years: you do not meet with a Probation Officer during this time, but the court will not be lenient if you are charged with an alcohol-related offense during this time.
- Third and Subsequent DUI Conviction within Ten Years of a Prior DUI Conviction (Non-Injury–Misdemeanor)
- Fines ranging from $1,015 to $5,000, plus possible additional punitive charges
- A jail sentence of two, three or four years
- License revocation
- Possible impounding of motor vehicle
- Completion of a State-licensed Drug and Alcohol Education and Counseling Program spanning twelve months. The convicted offender pays for these programs.
- Probation for three to five years, during which you will meet regularly with a Probation Officer.
- DUIs with Enhanced Penalties: Certain aggravating conditions can result in any of the above listed penalties and/or fines being increased
- Driving with a child under the age of fourteen in the vehicle
- Driving twenty miles or more above the posted speed limit
- Driving with a BAC of .015% or more
- License revocation for life
- Additional fees which may total $200
- Possible loss of motor vehicle
- Felony DUI Conviction This typically refers to the Fourth DUI Conviction within ten years and/or any DUI Conviction resulting in property damage, injury to a person or death. The penalties for Felony DUI convictions vary widely depending on the individual circumstances of the case, but most always involve significant jail time in addition to the above listed penalties for Misdemeanor DUI Convictions.
Are you now convinced that a California DUI Arrest is a serious matter? You have the right to an attorney, and, if you have not already done so, you should contact an experienced DUI Attorney immediately. California District Attorneys regard DUI Arrests as serious matters and prosecute them accordingly. If you have been arrested for DUI in California, your next telephone call should be to a DUI attorney experienced in California DUI laws. A California DUI conviction results in significant fines, ranging from hundreds to thousands of dollars, jail time, suspension of your driver’s license, and potentially a felony conviction. Rest assured that the California District Attorney assigned to your court has sufficient resources to successfully convict you of DUI. Shouldn’t you have someone in court on your side? Contact an attorney experienced in California’s DUI laws today.
What prompts an Officer in California to make a DUI arrest?
The California State Trooper, local Police Officer, or County Sheriff who pulled you over probably took note of you driving unlawfully. Any number of unsafe driving behaviors could have brought you to the Officer’s attention, such as:
- Failure to operate your vehicle’s safety features correctly (i.e. driving without your headlights at night or without your windshield wipers during a rainstorm);
- Stopping your vehicle without proper cause;
- Driving above or below the posted speed limit; or
- Failure to stay in your own lane.
Or you could have been one of many cars stopped by an Officer during a traffic checkpoint.
After reviewing your driver’s license and vehicle registration, if the Officer suspected you’re your driving skills were impaired by alcohol or drugs, he probably asked you to exit your vehicle and take a Field Sobriety Test. This psychophysical test measures impairment of your basic motor and cognitive skills by alcohol or other substances.
Most Californians can describe with reasonable accuracy what a Field Sobriety Test looks like, either from seeing one depicted on television or in movies or perhaps even from personal experience. Many states, though, lack written instructions dictating that each Field Sobriety Test be administered in exactly the same fashion under controlled conditions. Regrettably, California is one of those states lacking such specific guidelines for the Field Sobriety Test.
The United States National Highway Traffic Safety Administration (NHTSA) created its own standards for Field Sobriety Tests, which many Officers nationwide use as general guideline for conducting their own roadside assessments. Keep in mind that a Field Sobriety Text conducted by a Police Officer in Los Angeles, however, can be very different from a test conducted by a County Sheriff in Anaheim or from a test conducted by State Trooper in Oakland.
The Officer may conduct any or all of these three tests:
- Walk-and-Turn (WAT): During the WAT, the Officer instructs the suspect to take nine steps, heel-to-toe, along a straight line. The Officer then instructs the suspect to pivot 180 degrees on the ball of one foot and take another nine steps, still heel-to-toe, in the opposite direction. During the WAT, the Officer watches for many indicators of potential alcohol and/or drug impairment, including
- Inability to stand still and maintain balance as the Officer explains the WAT,
- Starting the test before the Officer completes the instructions,
- Walking with the feet side-by-side instead of walking heel-to-toe,
- Taking more or less than the required nine steps,
- Failure to walk in a straight line,
- Failure to pivot turn on the ball of the foot,
- Waving or flapping the arms for balance, and
- Stopping during the WAT for any reason before completing the test.
Many legitimate issues could result in failing the WAT test, including:
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- Medical conditions, such as inner ear problems or chronic leg or back pain, can make balance difficult. Obesity can also adversely impact balance.
- Weather conditions, such as ice, rain, snow or even spilled motor oil, can make the roadside surface slippery, causing challenges.
- The suspect’s shoes can have a dramatic impact on the WAT test. For instance, leather soles can be slippery and result in turning too quickly, causing a loss of balance. Conversely, rubber soles can “grip” the roadside, also causing a loss of balance. And high heels, whether on a woman’s shoe or a man’s boot, can make heel-to-toe walking difficult.
- Horizontal Gaze Nystagmus (HGN): HGN refers to the normal, uncontrollable twitching or jerking of the eyes when one looks sharply to the left or right. Under the influence of alcohol or any drug (over-the-counter, prescription or illegal), this twitching or jerking can occur even when the suspect is focused straight ahead or just slightly to one side. During the HGN test, the Officer instructs the suspect to focus on a slow moving object (such as the Officer’s pen or finger) while the Officer watches carefully for any jerking or twitching of the eyeballs. Issues with the HGN test can include:
- Officers ask suspects to perform this test in every imaginable climate condition, ranging from rain, dense fog, snow or high winds. Thorough examination of the suspect’s eyes during any of these weather conditions, or even at night, can be difficult.
- Results of this test are highly subjective and impossible to videotape roadside for examination later in court. Even if the Officer’s squad car had videotaping capabilities, the video would not be able to focus in on the suspect’s eyes and the object being tracked.
- One-Leg Stand (OLS). During the OLS requires, the Officer instructs the suspect to stand on one leg with the other raised six inches off the ground. While in this position, the suspect must count aloud, starting at one thousand, and continue counting until told to stop (usually for thirty seconds). The Officer watches for these possible indicators of the suspect’s impairment during the OLS:
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- Falling over during the test;
- Waving the arms for balance;
- Hopping to maintain balance;
- Failure to count upwards from one thousand accurately; and
- Placing the leg back on the pavement before the test ends.
As with other elements of the Field Sobriety Test, multiple factors can adversely impact the outcome of the OLS:
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- If the suspect does not speak English well, counting in the thousands could be impossible even when not impaired.
- If the suspect is nervous around Officers, he may not perform well on any such test. A variety of legitimate factors can create nervousness in a suspect when stopped by a police Officer.
Here are some additional factors to consider about Field Sobriety Tests:
- An Officer begins to form an opinion about a driver’s sobriety (or lack thereof) from the moment he first observes his driving, before even attempting to pull him over. While no excuse should ever be made for unsafe driving, it is not always the result of alcohol and/or drug impairment. What if:
- A driver’s speeding is due to focusing on a conversation, either with passengers or via a cell phone, instead of on the posted speed limits?
- A driver’s weaving between lanes is due to changing a compact disc, reading a map, or engaging with children in the backseat?
The Officer may assume a driver is under the influence, even though his crime really is driving distractedly.
- Anything an Officer observes about a driver, while speaking with him or during the Field Sobriety Test, can be admitted in court, even though the Officer has not yet the driver his Miranda rights.
- For any Californian with a hearing problem, whether due to advanced age or a medical condition, hearing and following an Officer’s verbal instructions on the side of a noisy roadway can be difficult.
- What if the driver leans on or pulls against his car door while exiting? This may prejudice the Officer about the driver’s sobriety or lack thereof. But such action could be simply the result of chronic back pain or sore muscles from a challenging workout the day before, not impairment by alcohol and/or drugs.
Although many Law Enforcement Officers and District Attorneys might attempt to argue otherwise, a Field Sobriety Test is not always the best assessment of a driver’s sobriety. In court, though, it will be your testimony versus the arresting Officer’s. Make a smart decision today, and contact a California lawyer experienced in California’s DUI laws. If you have been arrested for DUI, your future is uncertain. Make sure you have an experienced California DUI lawyer on your side, calling the shots on your defense.
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