The Arrest- Field Sobriety Tests

FIELD SOBRIETY TEST PROCEDURES (FSTs)

After stopping your car, asking questions and watching your behavior, the cop will move on to field sobriety tests (FSTs).  Field Sobriety Test procedures are voluntary.  A little research on how these tests are administered will help you to understand what happened.  Typical FSTs include:

  • HGN Test– commonly called a horizontal gaze nystagmus test.  The purpose of the test is to determine if you have nystagmus- a certain jerkiness in your eyes when they track an object.  Of course, there is only one witness to how you do, and that is the cop who administers the test.  So expect that you will have “failed” the test.
  • VGN Test– same as the horizontal test except that the cop moves his finger in a vertical direction instead of horizontally.  Used to test for being under the influence of certain drugs and for extreme intoxication.
  • Leg lift
  • Walk and Turn
  • Nose touch
  • Rhomberg Balance Test
  • Hand Pat
  • Finger Dexterity
  • Alphabet (verbal)
  • Alphabet (written)
  • Counting backwards

You cannot be punished for refusing field sobriety test procedures.  You also have a right to refuse the PAS test (roadside breath test). However, chemical tests, which include a more sophisticated breath machine than the one a police officer will have in the squad car, occur later and are not voluntary. If you refuse to take a chemical test, your license will automatically be suspended. You do not have to submit to a field sobriety test if you don’t wish to. If you agree to submit to the test, the officer will evaluate how you performed. In most cases, you are better off refusing to take the field sobriety test as you may fail, even if you are innocent. FST’s are not, in and of themselves, proof that you were intoxicated. It is generally advised that people refuse to take the field sobriety tests, even if they are innocent, as they may fail and give law enforcement a reason to suspect that you were driving under the influence.

Before the officer can arrest you, he or she must have probable cause. “Probable cause” is a reasonable belief that you were driving while under the influence of alcohol and/or drugs. There is substantial case law on the issue of what constitutes probable cause. For example, simply swerving within your lane, negligently operating your vehicle, or driving slowly has been held not to constitute probable cause for an arrest for DUI.

Once the officer takes you into custody, they must read you your Miranda Rights. These rights include (1) the right to remain silent, (2) the admonition that anything you say can be held against you in a court of law, (3) the right to consult an attorney, and (4) the right to have an attorney appointed for you if you cannot afford one.

Defenses- Problems with Roadside Breath Tests or Breathalyzers

The Problems with Breathalyzer Tests

In any DUI investigation, there are typically two types of breath tests that are done. One is commonly referred to as a PAS test (“Preliminary Alcohol Screening” Test), often called a breathalyzer, and the other is referred to as a “chemical” breath test.

This article focuses on problems with roadside, so-called breathalyzer tests (PAS tests).

alcosensor IV

Alcosensor IV

To begin with, you should know that PAS tests/ breathalyzer tests on the one hand and chemical breath tests on the other are very different in terms of   (1) what they prove, (2) how they work and (3) how reliable they are.  The bottom-line is that a PAS test doesn’t prove much, doesn’t work well and is unreliable.  Chemical breath tests are better, but not as accurate as a blood test.

The PAS test is the roadside breathalyzer test.  It is less reliable (see below) and is only supposed to be used to determine if there is alcohol in your blood, not what your BAC is. The chemical breath test is a more sophisticated breath testing device.  It is usually given at the station although a few counties now have chemical roadside breath tests, called “evidentiary PAS machines” meaning that their readings of your BAC can be used as evidence at court, unlike a normal PAS machine.  Evidentiary PAS machines should be avoided whenever possible.

Alcotest 7410 Evidentiary PAS Machine
Alcotest 7410 Evidentiary PAS Machine

PAS TEST

The first breath test that you will be offered in what is commonly referred to as a PAS test. California Vehicle Code Section 23612(h) allows for a law enforcement officer to use a “preliminary alcohol screening test” as an additional Field Sobriety Test and investigatory tool to use in a DUI investigation. Before you are offered this test, the officer is supposed to give you a “PAS admonition”. Here is the admonition:

“P.A.S Admonition: I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and if arrested, you will be required to give a sample of your blood, breath or urine for the purpose of determining the actual alcoholic and drug content of your blood.”

So we learn two things from this admonition: first, you don’t have to take this test—the PAS test is voluntary, unless you are required to take it as a condition of probation from a previous conviction; second, another test—a so-called “chemical” test—is coming.

Problems with the PAS test

Alcosensor V
Alcosensor V

Because you have the option to take the PAS test or refuse it, there are some things that you should know about this device.

Problem 1. The machine isn’t very accurate.

By law, the results of a PAS test cannot be used to establish your BAC. They are designed to detect the presence of alcohol—that is all. Only a chemical test can determine your BAC with any meaningful accuracy.

During 2011, the Santa Clara County District Attorney’s office ordered a review of over 600 DUI arrests occurring between October 2010 and April of 2011 because an AlcoSensor V PAS device operated by the San Jose Police Department was reading falsely and was seriously out of calibration. Since then, all AlcoSensor V machines were taken out of service and replaced by the older, and apparently more reliable AlcoSensor IV. And in a case that I had in Palo Alto Superior Court, the calibration records for an AlcoSensor IV used by the Palo Alto Police Department was out of calibration for nine of twelve months. And it was reading falsely when my client blew into it.

For all of the reasons below, you should never rely on the results of a PAS machine without additional evidence.

Problem 2. A PAS machine runs on a battery.

And batteries run down. And a run down battery will affect the accuracy of the machines report. Very few PAS devices keep a record of what the battery charge is on the machine when you blow into it. One would think that at a minimum, the device would shut down when the battery charge was low, but few do. And very few cops—count them on one hand—write down what the battery charge was in their police report.  I have seen one police report with the battery charge in four years of practicing law.

Problem 3. A PAS machine only tests your breath with a single fuel cell.

A chemical breath test is supposed to test your breath with two separate devices at the same time—an electrochemical fuel cell and an infrared detector. The PAS device only uses an electrochemical fuel cell. The results of the two tests have to be within a range of 0.02 or the test has to be re-done or the machine replaced. This added verification is missing from a PAS device.  If the fuel cell is reading incorrectly, there is no way to know without a separate test or a complete retest of the machine as a whole.

Problem 4. A PAS machine doesn’t have a slope detector, and it needs one to be accurate.

When you blow into a breath machine, first air from your mouth enters the machine, then your throat, esophagus, upper lungs, etc down to the air at the base of your lungs. It is the air above the aveolar sacs at the base of your lungs that gives you the basis for your BAC. The problem is that many machines will include the alcohol that is being blown into the machine from your mouth breath (see GERD and mouth breath alcohol) and that will give you a false high.

Chemical breath machines have a computer program called a “slope detector” which detects the elevated high BAC that the machine reads at the beginning of a blow, and eliminates that false high. PAS machines cannot do this and will report the mouth breath alcohol in your BAC results.

Problem 5. The PAS machine is portable.

It has to be. It is supposed to be used in the field. But this creates a problem. Any PAS machine is going to be subject to the same abuse that any other handheld device receives. PAS machines get dropped, left in hot cars, left in cold cars, coffee gets spilled on them, they get sat on, or their batteries run down, to name just a few. Add to this the fact that a breath machine is a delicate, carefully calibrated and highly sensitive machine, and you have a recipe for disaster.

Problem 6.  The PAS machine shares all of the limitations of all breath machines:

When it comes to an accurate reading of someone’s BAC, there is no substitute for a blood test. Of course, you may be in a situation where you don’t want an accurate reading, but if you are innocent, then a blood test is always the best measure of your BAC. There are a number of reasons for this and they have to do with fundamental problems in the design of all breath machines.  We have enumerated them here.

Legal Limitations to a PAS device

  1. It is easy for an expert to attack
  2. It cannot be introduced into evidence at trial for the purpose of showing what your actual BAC is. It can only be introduced for the purpose of showing that there was alcohol in your blood.

 So why would you want to take a PAS test?

The only reason I can think of, for taking a PAS test is to prove that you have rising blood alcohol. Without a PAS test, you will lose the ability to prove that your blood alcohol was rising and that it was lower than a 0.08 at the actual time of driving. If you drank (from start to finish) during the ½ to one-hour before the stop, then you almost definitely will have rising blood alcohol. A PAS test could prove this.  Without the PAS test, there is no evidence of rising blood alcohol.

What is an evidentiary PAS machine?

Evidentiary PAS machines provide the court with a BAC that can be entered into evidence–unlike a normal PAS machine, which can only prove that there was alcohol in your blood.  These new machines are basically chemical tests that are done in the field.  The problem, again, is the same as with regular PAS devices–portable devices are inherently more unreliable.

The idea behind the evidentiary PAS machine is that it will provide a breath test close to the time of your driving that is more reliable than a PAS test, and more compelling to a jury.  Remember, unlike a PAS test, an evidentiary PAS test can be used to establish your BAC in court.  And because these tests are administered shortly after you were driving, they provide compelling evidence as to what your BAC was at the time you were driving–at least there is a strong bias in that direction.  Currently the Alcotest 7410 is the main evidentiary PAS machine in the field in California, and it is only used in select locations (Central Valley, Santa Cruz County, and a few other counties).

One more time…evidentiary PAS tests should be avoided.  Ask for a blood test instead.  First, the evidentiary PAS device presumes to provide chemical evidence of your BAC from a machine that is portable, battery operated and often out of calibration.  Second, unlike a chemical breath test at the station, the evidentiary PAS device presumes to tell the court what your BAC was close to the time of driving, eliminating any rising blood alcohol defense.  Third, these machines have not had enough time in the field to provide any evidence as to their actual reliability in the field.  It always happens that new breath machines are first hailed as infallible, then brought gradually under more scrutiny until the truth comes out.  At present, all we are left with is the manufacturer’s manual (and limited warranty!).  But all of the problems with breath machines remain.  These machines are hardly something that you can rely on with confidence.

Defenses- The Problems with Breath Machines

The problem with breath machines and so-called breathalyzers

The problem with breath machines is that the design of the machine leaves much to be desired.

First, let’s get our language correct.  They don’t call them breathalyzers anymore.  The roadside breath test is called a PAS test, and the test at the station is called a “Chemical Breath Test.” Now that this common problem in nomenclature is taken care of, what are the problems with breath alcohol testing machines?

Non-specific analysis–the inability of the machine to differentiate alcohol from other similar compounds–is a problem common to all breath machines. The only difference is how badly they mistake other compounds with ethyl alcohol and how many compounds they cannot differentiate from alcohol. Put simply, design of the machine is everything and the design of many breath machines leaves much to be desired.

The oldest breath machines (commonly referred to as “breathalyzers” and no longer in use) transfer your breath through a solution of potassium dichromate., This oxidizes ethanol into acetic acid, and alters its color in the process. A monochromatic light beam is then passed through this sample, and a detector reads the change in intensity of the light beam (and, hence, the change in color), which is used to calculate the percentage of alcohol in the breath. However, since potassium dichromate is a strong oxidizer, numerous alcohol groups can be oxidized by it, producing false positives.

Infrared Breath Machines and Non-Specific Analysis

Breathalyzers have been replaced by machines that test your BAC using two tests- infrared technology, and an electrochemical fuel cell.  Infrared-based breath machines project an infrared beam of radiation through the captured breath that you have blown into the breath machine’s sample chamber. Light projected by the infrared beam gets absorbed by alcohol in the chamber, dimming the light at the other end of the chamber. The dimmer the light (i.e. the more light absorbed by alcohol) the higher your BAC. Put another way, the more light that is absorbed by compounds containing the alcohol group, the less light reaches the detector on the other side—and thus the higher the reading.

The problem is that many types of chemicals have an absorbance factor that is similar to alcohol, and can be confused for alcohol in many infrared machines. Acetone, aromatic rings, ketones and carboxylic acids can give similar absorbance readings to ethyl alcohol.

Interfering Compounds

Some natural and volatile interfering compounds mimic ethyl alcohol. Acetone and ketones are the most common. For example, the National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics may have acetone levels hundreds or even thousand of times higher than those in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines. However, The manufacturers of many fuel cell based systems claim them to be acetone specific and are are also claimed to be non-responsive to substances like acetone.  And, in truth, acetone does not appear to pose much of a problem for more modern machines like the Draegar 7110.

False positives can be generated in other ways as well.  For example, a study in Spain showed that metered-dose inhalers (MDIs) used by asthmatics can also cause false positives in breath machines.

Substances in the environment can also lead to false BAC readings. For example, methyl tert-butyl ether (MTBE), a common gasoline additive, has been alleged anecdotally to cause false positives in persons exposed to it.  (If you recently used your mouth to siphon gasoline, then you are at risk of a false reading for alcohol in your blood.)

Painters, building contractors, employees at body shops and other workplaces that expose people to fumes from paints, lacquers and fuels can easily generate erroneous BAC results. Causes include compounds found in lacquer, paint remover, celluloidgasoline, and cleaning fluids, especially ethersalcohols, and other volatile compounds.

Partition Ratios

Breath machines operate on the assumption that the subject being tested has a 2100-to-1 partition ratio- which is to say that for every 1 part of ethyl alcohol at the base of your lungs there are 2100 parts in your blood.  But this ratio is just an average.  .

In fact, most individuals have a partition ratio that is different from the legal “average” of 1 to 2100.  And as many as 40% of the people who blow into a roadside breath machine have their actual BAC overstated.

In fact, your actual partition ratio can be as low as 1-900 and as high as 1-3100.  And the lower your partition ratio, the greater the breath machine is overstating your BAC. If your partition ratio is 1-1000 then any breath machine will be reporting your BAC as double what it actually is.

Not only do partition ratios vary from person to person, they can also vary in the same person over time.

Partition ratio evidence used to be prohibited in court—it couldn’t even be mentioned before a jury—but with a new California Supreme Court decision it can now be used in any case where you are charged with the “a” count (Vehicle Code 23152(a)) of “driving under the influence of alcohol.”

Mouth Breath Alcohol
A common common cause of false high BAC readings is the existence of mouth breath alcohol. In analyzing a subject’s breath sample, the breath machine assumes that the alcohol that it is measuring comes from alveolar air—that is, air exhaled from deep within your lungs. However, alcohol may have come from the mouth, throat or stomach, for any  number of reasons, including GERD, acid reflux, burping, belching or heartburn. To help guard against mouth-alcohol contamination, certified breath-test operators are supposed  to, but rarely do, observe a test subject carefully for at least 15–20 minutes before administering the test.

The problem with breath machines analyzing mouth alcohol is that the breath was not absorbed from the stomach and intestines to the blood and lungs. In other words, the machine’s computer is mistakenly applying the partition ratio (see above) and multiplying the result. Consequently, a very tiny amount of alcohol from the mouth, throat or stomach can have a significant impact on the breath-alcohol reading.

Aside from drinking the most common source of mouth alcohol is from belching or burping. When you belch, the liquids and/or gases from the stomach—including any alcohol—rises up into the soft tissue of the esophagus and oral cavity, where it stays until it is dissipated. This is not a defense to be idly dismissed.

The American Medical Association concludes in its Manual for Chemical Tests for Intoxication (1959): “True reactions with alcohol in expired breath from sources other than the alveolar air (eructation, regurgitation, vomiting) will, of course, vitiate the breath alcohol results.” For this reason, police officers are supposed to keep a DUI suspect under continuous observation for at least 15 minutes prior to administering a breath test.  What constitutes “continuous observation” leaves much to be desired, however.  If you are seated in the back of a squad car and the cop is driving, he cannot be watching you.  The courts have still held, however, that this constitutes “continuous observation.”

Breath machines such as the Draegar Intoximeter 7110, the Intoxilyzer 5000 and the Datamaster also feature a so-called “slope detector” that is supposed to find and discount any “spike” in your BAC while you are blowing. This detector is supposed to detect any decrease in alcohol concentration of 0.006 g per 210 L of breath in 0.6 second, a condition indicative of residual mouth alcohol, and will result in an “invalid sample” warning to the operator, notifying the operator of the presence of the residual mouth alcohol.  Notice, however, that the slope detector is only looking for a short, brief (0.6 second) spike in your BAC.  In many cases, however, mouth breath alcohol can be continuously blown through the machine’s mouthpiece for over 10 seconds.  Mouthwash, dentures, gum disease, particles stuck in your teeth containing alcohol–all of these can cause mouth breath alcohol to enter the breath machine for the entire blow.

PAS machines do not have slope detectors.  Thus, the appearance of mouth breath alcohol will invalidate any PAS test.

Acid Reflux

Acid reflux, or gastroesophageal reflux disease, can result in exaggerated false highs. The stomach is normally separated from the throat by a valve, but when this valve is herniated or otherwise rendered inoperable, there is nothing to stop the liquid contents in the stomach from rising and permeating the esophagus and mouth. And a slope detector will not “detect” this continuous condition.

Other Problems with Breath Machines

  • Dentures–  Mouth breath alcohol can also be caused by dentures. Of course, dentures will trap alcohol.
  • Periodontal disease can also create pockets in the gums which will contain the alcohol for longer periods.
  • Passionate kissing with a person who is intoxicated can cause elevated highs.
  • Mouthwash or breath fresheners such as Binaca can also cause false highs. Mouthwash and/or breath freshener are particularly toxic to breath tests not the least because people use these to disguise the smell of alcohol when the cops pull them over and they are loaded with alcohol.  The worst is Listerine with an alcohol content of 27% by volume.

Rising Blood Alcohol

Click here to learn about rising blood alcohol.

 

Defenses- GERD, Heartburn, Acid Reflux and Breath Machines

Before we begin, let’s explore some background facts about alcohol breath testing.

Mouth Alcohol Contamination

The idea behind a breath machine is to measure the alcohol just above the aveolar sacs at the base of your lungs. Measuring the alcohol in your stomach or in your mouth will not tell you how much alcohol you have in your blood—your BAC. Only alcohol at the base of your lungs can be used for this purpose.

Now imagine that you put something into your mouth–a mint, a breath spray, a lozenge– that contains alcohol or that resembles or can be confused with alcohol. In this case you can get an elevated, erroneous reading that makes you appear to have more alcohol in your blood than you actually do. And it is important to remember that even a very small amount of alcohol that is directly introduced into the machine from your mouth will have a hugely disproportionate effect on your BAC reading.

Mouth breath contamination is something that has to be avoided at all costs to ensure that you have a proper breath sample being entered into the machine. It is for this reason that the police are supposed to observe you for fifteen minutes before a breath test in order to ensure that you do not place anything into your mouth that contains alcohol or any substance that resembles ethyl alcohol—such as acetone. Breath mints, mouth wash, gum—all and more of these types of substances can contain alcohol and can result in falsely high readings.

GERD, Heartburn, Acid Reflux and Breath Machines

There is another way that you can get a false high reading on a breath machine. Imagine that before your blow you burp. What has happened is that you have just moved alcohol gasses from your stomach into your mouth where they will be falsely interpreted by the breath machine as coming from the base of your lungs. In fact, the alcohol from your mouth and stomach is being added to the alcohol at the base of your lungs and the reading on the machine is necessarily erroneous—and high.

There are many potential sources for mouth-alcohol contamination. One of the more common of these is acid reflux, commonly referred to as heartburn. This is usually caused by a medical condition called hiatus hernia, and is often found among elderly, pregnant or overweight persons. The symptoms are varied but usually involve a painful burning sensation in the chest, sudden regurgitation of acid fluid in the stomach, or belching. The result in a DUI can be a false-high breath machine reading.

It should also be noted that alcohol itself, as well as cigarette smoke can aggravate the symptoms of acid reflux. Acid reflux can also be aggravated or triggered by stress—such as the kind of stress that you experience when you are surrounded by the police and are in the process of being arrested for a DUI!

Because of the prevalence of acid reflux, you should always look into the possibility of this condition existing. Many people are not even aware that they are suffering from it. They will usually say that they have an “upset stomach” or “gas” and take Tums, Tagament or some other antacid to treat it. If this is a constant problem, then there is a good chance you are suffering from a hiatus hernia.

One last comment: Antacids such as Tums or Tagament are designed to neutralize and/or absorb liquids. This can interfere with the normal metabolism of alcohol, thus throwing off the expected absorption rates of the individual—and consequently, any attempts at determining if you have rising or falling blood alcohol, or determining what your BAC was at an earlier point in time.

Defenses- Rising Blood Alcohol

Rising Blood AlcoholRising Blood Alcohol Defense

What is the rising blood alcohol defense and how can you use it to defend yourself if you are accused of a DUI?

Before we begin, let’s review the law. In California, it is against the law to DRIVE under the influence of alcohol or to DRIVE with a BAC of 0.08 or higher. Evidence that your BAC was a 0.18 at the time your were tested is not the same as evidence of your BAC at the time you were driving.

So the issue always is, what was your BAC at the time of your driving?

Let’s start by discussing how alcohol is absorbed by the body and then eliminated. Alcohol, in order to produce its intoxicating effect, must find its way to the brain after you ingest it. To accomplish this, it finds its way into your blood through the walls of your stomach and through your lower intestines. This absorption occurs through the simple biochemical process of “diffusion”. This diffusion process will continue as long as the concentration of alcohol in the stomach and the intestines is higher than that in the blood. We call this absorption of alcohol into your body (and your brain) the “absorption process.”

How long does this “absorption” process continue? Most studies indicate that it can start in as little as five minutes and be completed between 20 minutes and an hour and a half, depending on your own physiogamy, the kind of drink that you had, whether or not you ate, how fast your eliminate alcohol (your “beta” factor or “burnoff rate”), your weight, your gender, when you started drinking, when you stopped and your ratio of total body mass to total body weight (your “R” constant).

As soon as alcohol is completely absorbed by the body you hit a “plateau”. Then the burnoff process begins. Most crime lab toxicologists and criminalists (the ones who will be testifying against you) will claim that an average burnoff rate is approximately 0.015/hour. Note the words “average” and “approximately”. The bottom line, and you can quote me on this, is that retrograde extrapolation is nothing more than an educated guess, and not a very good one at that. There are simply too many factors that cannot be nailed down to give you any meaningful number.

Looking at the graph below, the first thing to note is how quickly alcohol is absorbed and how slowly it is eliminated from the body. If your BAC is falling faster than 0.015 an hour, you have a right to be suspicious of the BAC results. On the other hand, if it is rising rapidly, you are almost certainly in the absorption phase.

I recently had a case where my client was stopped at 2 am, gave a PAS breath test at 2:20 and blew a 0.09. By 2:45 she had a BAC of 0.13. In a twenty five minute period of time her BAC rose by 0.04. That means that when she was driving her BAC could have been as low as 0.05 or even lower. On this basis alone, she was acquitted.

On the other hand, it is universally conceded that when you are eliminating alcohol, you will be doing so slowly. The concensus among most prosecutors is that you eliminate alcohol at a rate of 0.015/hour, but this is only an average. Some people have metabolisms that will allow them to eliminate alcohol rapidly, others do not.

Regrograde Extrapolation

The most obvious way to determine your BAC at the time of driving is to use a process called “retrograde extrapolation”. Retrograde extrapolation basically uses trend lines to determine (a) if your blood alcohol level is rising or falling and (b) to determine what it would have been at an earlier point in time based on the assumption that your BAC is either rising or falling.

The basis for retrograde extrapolation is a controversial formula—in use by every district attorney in the country—called the “Widmark Formula”. Without going into the details of this formula, for some reason D.A.s love it even though it is really easy to destroy during a trial. The problem with the formula are the variables. There are too many of them, and you cannot nail them down with averages.  Put simply, these numbers are useless.  You cannot make any meaningful extrapolation of what your BAC was at an earlier point in time with only two samples and a list of variables any one of which could screw up the results.

What the D.A. will argue

As a general rule, expect the district attorney to argue that you are in the elimination phase (falling BAC) of alcohol since that means that your BAC was higher when driving than when you did your breath or blood tests. Ergo, your BAC was even higher than when you tested. Of course, defense attorneys are usually hoping for the opposite—rising blood alcohol indicates that you have a lower BAC when you were driving.

The simple fact is that few district attorneys understand retrograde extrapolation, the Widmark Formula or how alcohol is absorbed or eliminated. What they seem to be persuaded by are simple numbers. So use them when it helps you to do so.

The bottom line is that if your BAC was rising rapidly between the roadside breath test and the breath or blood test at the station, see how rapidly it rose and from what number. If you can show that your BAC was significantly lower at the time of driving (hopefully you were close to home when you were stopped) then you could negotiate a reduction in sentence or even obtain an acquittal.

The Process- Going to Court

The DUI Court Process (Misdemeanor Charge)

Misdemeanor Arraignment-  Most DUIs are charged as misdemeanors.   However, if you are charged with a felony DUI either because someone was injured as a result of the DUI (Vehicle Code Section 23153) or because you have multiple priors, you will go through an entirely different process from a misdemeanor charge.    Our best advice is not to try to handle a felony charge on your own.  Find an attorney–private or public defender.   This article focuses on the DUI court process as it relates to misdemeanor DUI charges.  (FYI, the overwhelming majority of DUI cases are misdemeanors.)  The first appearance you will make during a misdemeanor DUI court process is the arraignment.  Shortly after DUI charges have been filed against a person, he/she must go to court for an arraignment and possibly a bail hearing. If you are facing a second DUI there could be a bail hearing before the arraignment occurs. At the arraignment, the person must enter a plea of “not guilty”, “guilty”, or “no contest” and advise the court if they are willing to “waive time” for a speedy trial.  At the arraignment hearing, the judge will also set the case for a “Pre-Trial Conference”.  This is the first opportunity that your attorney will have to discuss the case with the DA and get an offer from the DA.

Should I waive time?  Probably, but sometimes there can be compelling reasons to not waive time.  For example, if you are prepared for trial and the DA isn’t, then you may not want to waive time.

What if I already waived time?  You can “pull the time waiver” at any hearing.

What is the effect of pulling the time waiver?  The case must go out to trial within 45 days.  If the DA is not prepared, this could be a powerful incentive for him to make you an offer either to a lesser charge, or for a reduced sentence.  In several cases, where I did not waive time, it resulted in the charges against my client being dismissed.

Remember, a person is innocent unless and until he/she is proven guilty beyond a reasonable doubt. There are many defenses available for DUI arrests. If you are thinking of challenging the complaint against you, then our advise is to at least consult with an attorney if not hire one.

The Pre-Trial Conference:  The Pre-trial conference is the first opportunity you will have to speak to the D.A. and “get an offer”.  Generally, in making an offer the D.A. will speak in terms of “days” of work release or jail.  The fines, DUI school and probation tend to be standardized in each courthouse–in our experience a D.A. will only divert from that standard offer if (a) you are able to show them that there is a problem with their case or (b) the facts are such that the D.A. feels that a tougher sentence is appropriate.

Standard offers vary from county to county.  For example, as of the time of this writing a “standard first” in Santa Clara County is six days of Sheriff Work with one day credit (or five days of Sheriff Work).  In Alameda County a “standard first” is two days with one day credit.  In most counties probation is three years, but in Monterey County it is five years.  How do you find out what a standard offer is?  I always call the Public Defenders office for that county.  If your county doesn’t have a Public Defender’s Office then call our office and we will put you in contact with someone who knows.

It is not unusual in a misdemeanor case for a defendant to have several pre-trial conferences.  This is usually because the defense attorney did not yet get all of the discovery he or she was entitled to from the D.A.  At some point, the Court will declare an end to the discovery process and insist that the next hearing will be the final hearing.  This is called “dispo or set.”

“Dispo or Set”:  At this final pre-trial conference, the Court will either take a “disposition” from you–enter a plea based on the offer given to you by the D.A.– or it will “set” the case for trial, which means that the court will set a trial date.  Most counties include a “readiness conference” just before the date of trial.

Readiness Conference:  A readiness conference accomplishes several things.  First, it is a last chance to settle the case before the case goes to trial.  Second, a readiness conference allows both parties to indicate that they are “ready” for trial (usually the next Monday).

The Process- The DMV Hearing

The DMV DUI Hearing and license suspension:  After a person is stopped and arrested for DUI, the police officer will immediately take possession of your driver’s license. You will then be given a pink Form DS-367 at the time of your arrest or on your release from jail. Form DS-367 is a Notice of Suspension and Temporary Driver’s License.   This allows you to drive for thirty days, but after the date of arrest, you only have 10 calendar days to schedule a DMV DUI hearing, called an APS hearing or Administrative Per Se hearing, to contest your license suspension.  If the 10th day falls on a weekend or legal holiday, then you have until the next day for file the request for the administrative per se hearing.  If you fail to schedule an APS hearing within this 10 day period your license will automatically be suspended.  We provide a 10 day DMV hearing request form on this website.  You can visit the link below to get the form, along with the phone numbers for the DMV Driver Safety Offices.

Click here for the DMV 10 Day Hearing Request Form.

The DUI DMV Hearing is commonly referred to as an “APS Hearing”.  This stands for Administrative Per Se Hearing.  The DMV hearing is usually conducted in a small room with a DMV officer. The hearing will be tape recorded by the DMV officer. You also have the right to bring your own tape recorder to the hearing. The DMV officer is not a lawyer, prosecutor or a judge. He or she is simply a DMV employee. However, the DMV officer plays the role of a prosecutor and a judge at the same time. It is the DMV officer who presents evidence on behalf of the State and who also makes the final ruling.

The DMV officer has the burden of justifying that your license be suspended. (The pink DS-367 form that you were given when you were arrested states that you have to show that your suspension is not justified in order to avoid having your driving rights suspended. This is an incorrect statement. It is the DMV that has the burden of proof, not you.) The DMV officer must find:

  • that the arresting officer had probably cause to stop you;
  • that the arresting officer made a lawful arrest; and
  • that you were either (a) driving under the influence of alcohol or (b) that you had a blood alcohol content (commonly referred to as “BAC”) of 0.08% or higher, unless you are under the age of 21 or a commercial driver in which case the standards are even stricter.

The DMV hearing is a highly technical process. It is also a crucial step in the entire process.

Advantages of Requesting a DUI DMV Hearing:  Even if you are guilty and expect to lose the hearing, request one anyway.  There are several ways a DUI DMV Hearing can help you.

  • Timing of the suspension:  One of the main advantages of a hearing is that you can time the beginning of your suspension date. Someone who knows the system could put a suspension off for as much as 75 days with a little advance coordination.  Not only can you delay the suspension, but you can also pick the date the suspension begins.   To set a suspension date simply advise the hearing officer one day before the hearing that you want to cancel a hearing and schedule a suspension.  If you need more time, hire your attorney just before the hearing date–the hearing officer will give the attorney 30 days to prepare.  Then he can cancel it just before the hearing date which could buy you another two to four weeks.
  • Gathering Evidence for Court:  The DUI DMV Hearing is the only opportunity that you will have to question the police officer (or other government witnesses) on the record and under oath without the district attorney being present.  If you have any fighting chance at all in your case, then this DUI DMV hearing becomes extremely important.
  • You could win!  If the stop of your car was illegal, it doesn’t matter how drunk you were, the case could be thrown out by the DMV and thrown out of court.  If there are problems with the breath or blood test, if the blood test report was prepared more than six days after the analysis of your blood, if you have GERD, if you were stopped at an illegal sobriety checkpoint, if…well, you get the picture.

Your Driving Record & The DMV