DUI Blogger

Here’s a list of the California DUI sobriety checkpoints that are scheduled for this weekend. Unfortunately, some aren’t too specific, but if you check with the police/sheriff stations a couple of hours before the checkpoints are set to begin, you can usually find out more information about their specific locations.

The Santa Ana Police Department will operate its DUI checkpoint from 7:30pm until1am Friday night. They will be stopping cars in the area of 1000 N. Newhope St. near Rosita Park.

The San Bernardino County Sheriff’s Victorville station will conduct a DUI / license checkpoint on Friday from 7pm until 3am at an undisclosed location in Victorville.

The Escondido Police Department will conduct its DUI sobriety / driver’s license checkpoint Friday night between 6pm and 1am at an undisclosed location in the city. Weather permitting, all vehicles will be stopped.

The Oxnard Police Department will operate a DUI roadblock between 6pm and 2am on Friday at an undisclosed location.

Police will be conducting a sobriety / driver’s license checkpoint between 6pm and 2am on Friday at an undisclosed location in the city of Highland. Weather permitting, all vehicles will be checked.

Redlands Police will operate their DUI sobriety roadblock Saturday night from 10:30 to 3:30 in the southbound lane of Alabama Street between Park and Orange Avenues.

Remember, if you are pulled over for a DUI, whether on the road or at a California DUI sobriety checkpoint, please remain polite at all times, invoke your right to remain silent, and do not submit to any field sobriety tests.

…And, above all else, be safe!

California law enforcement officers have called 2010 the “year of the checkpoint”. What they really should have called it is “year of the cash cow”.

A recent report from the University of California at Berkeley found that in 2009, DUI checkpoints generated approximately $40 million in revenue…money which is split between local law enforcement agencies and their local towing companies. Why the towing companies, you ask?

Because DUI checkpoints aren’t really set up to catch drunk drivers…that’s just the pretext. Rarely do cops arrest even a handful of drunk drivers as a result of these roadblocks…and for that matter, it’s not even that uncommon for the police to close shop on a checkpoint without making any DUI arrests.

Who the police are really after are drivers who are driving on suspended/expired driver’s licenses and those driving without a license. When the police stop these individuals, they immediately impound the driver’s car for 30 days, which costs the driver between $1,000-$4,000 to get it back. That money is split between the city and the towing company who tows and stores the car.

Let’s look at the trend -- last year, about 24,000 cars were seized at California DUI checkpoints, up from just fewer than 18,000 in 2008 and just fewer than 16,000 in 2007. Just know that as long as we are suffering a budget crisis, these alleged DUI checkpoints aren’t going anywhere.

Although many people think that a DUI conviction necessarily means a jail sentence, that’s not always the case. In fact, there are a variety of penalties…penalties called “alternative sentencing”…that the judge can impose in lieu of jail.

One of the less well-known types of DUI alternative sentencing is the SCRAM device (Secure Continuous Remote Alcohol Monitor). The SCRAM device is a tamper-resistant ankle bracelet that tests the DUI offender’s sweat for alcohol concentration. This is done at least once an hour. Attempts to tamper with the SCRAM device are electronically reported to the regional monitoring center.

Some of the more common DUI alternative sentences include: community service, community labor (such as Cal-Trans roadside work), house arrest or electronic monitoring, and attendance at AA meetings.

It never hurts to ask for DUI alternative sentencing, and it always pays to have a DUI attorney who knows the most effective ways to convince the prosecutor and judge that these alternatives best serve the interests of justice.

As absurd as this sounds, it’s still a philosophy to which cops nationwide wholeheartedly subscribe. This is due in large part to the list that the National Highway Traffic Safety Administration published which matches common driving patterns with the likelihood as to whether the driver committing the violation is DUI.

The problem with this list is that driving patterns are not indicative of DUI…they’re just not. It’s more likely that driving patterns such as weaving, swerving, speeding, tailgating, erratic braking, and abrupt turning could be due to countless innocent explanations…explanations that have nothing to do with drunk driving.

Fatigue, distraction, other drivers…these are just a simple example of why a perfectly sober driver could engage in any of the above mentioned driving patterns. And the fact that there are far more sober people than impaired people who are involved in accidents is further evidence why driving patterns are not indicative of DUI.

Typically when you take a test, you at least have the opportunity to pass. DUI field sobriety “tests”, however, automatically set you up for failure.

Take, for example, the finger count DUI field sobriety test. This “test” supposedly tells a cop whether you’re too drunk to drive. While you’re engaged in this FST, the officer is evaluating everything you’re doing…everything you’re doing wrong, that is.

He’s not taking note of the fact that you’re actually doing things right. He’s been trained only to observe the bad…this is how he gathers evidence to prove that you were driving under the influence. And forget the fact that illness, fatigue, nerves, or countless other innocent factors could cause anything other than a stellar performance.

Let’s just call these field sobriety tests what they really are – “exercises to give officers more ammunition against you”. Doesn’t roll off the tongue quite as easily as the “finger count DUI field sobriety test” but it’s certainly a lot more accurate.

We recently explained that the Romberg balance DUI field sobriety test was not an FST at all, but rather a neurological test used by doctors to detect disorders. Well the same goes for the “finger to nose” DUI field sobriety test as well.

The “finger to nose” test is a neurological test, not an original FST. When performed in a doctor’s office, it is precisely administered and evaluated. When performed on the side of the road or in a police station, precision goes out the window.

Since it isn’t one of the National Highway Traffic Safety Administration’s “standardized” DUI field sobriety tests, there is no scientific data to support its use as a reliable FST. Officers are not only free to administer it as they wish, but are also free to evaluate a suspect’s performance as they wish.

Nerves, intimidation, and one’s personal coordination make this test…and, for that matter, pretty much all field sobriety tests…poor indicators of drug and/or alcohol impairment.

Many law enforcement agencies routinely include the Romberg balance DUI field sobriety test in their FST arsenal. The problem is that it was never intended to be used as a field sobriety test. As a result, it provides little if any indication as to whether an individual was, in fact, driving under the influence.

Originally developed by a 19th century ear doctor, Moritz Romberg, it is a neurological test designed to test someone’s balance. Today, doctors find it particularly useful in detecting multiple sclerosis, as well as a variety of other neurological and inner-ear disorders.

Somewhere along the road, police agencies decided to expand this test to apply it to drug and/or alcohol impairment. They also added a couple of requirements to the test: the DUI suspect must tilt his/her head back and estimate time (neither of which are necessarily indicative of impairment).

Furthermore, sober people who suffer from M.S., neurological problems, poor balance, or who have been injured will certainly experience difficulty “properly” performing this test.

These are just a few of the reasons why the results of a Romberg balance DUI field sobriety test should always be challenged.

Let’s first address the fact that the hand-pat DUI field sobriety test is not scientifically validated. Neither the National Highway Traffic Safety Administration (the national agency that issues police protocols for field sobriety testing), nor any other reputable agency has concluded that the hand-pat DUI field sobriety test is a good indicator of alcohol and/or drug impairment.

Despite this fact, it is a very common FST. Many law enforcement officers continue to administer this field sobriety, claiming that it helps them detect impairment. This, however, is nonsense.

During this test, the suspect essentially plays “patty cake” with him/herself while counting aloud. If the suspect counts too fast, he/she fails. If the suspect counts beyond “one, two, one, two” he/she fails. If the suspect becomes too nervous and flips his/her hands too quickly, he/she fails.

There are too many factors that make this so-called “test” unreliable. Nerves, intimidation, one’s natural coordination, and the fact that there is no uniform standard or consensus that the hand-pat FST is even applicable to detecting intoxication renders this test an easy one to challenge.

Just consider this a follow-up to yesterday’s blog “The Problems with the So-Called ‘Reliable’ DUI Walk-and-Turn Field Sobriety Test” as we turn to the even less reliable one leg stand.

Just like the walk-and-turn FST, the one leg stand DUI field sobriety test has its fair share of problems. In fact, they are the same problems as the walk-and-turn presents: (1) the accuracy rate (or should we say “inaccuracy” rate), and (2) it is an unfair test for a large percentage of the population. Let’s address these in order.

First, if precisely administered and evaluated according to the National Highway Traffic Safety Administration’s standards (which is rarely if ever the case), the one leg stand FST only has a 65% accuracy rate at determining alcohol and/or drug impairment.This means that at best, one out of every three people is falsely arrested for DUI based on this field sobriety test.

Second, people over 50, people who are overweight, those with physical injuries, and those wearing shoes with any type of heels will be unfairly disadvantaged by this “balance” test…a fact which is typically ignored by arresting officers who are committed to meeting their DUI quotas.

The walk-and-turn test is one of the National Highway Traffic Safety Administration’s “standardized” DUI field sobriety tests. This means that it is deemed “reliable” as an accurate measure of one’s alcohol and/or drug impairment. There are two problems with this.

The first problem is that the walk-and-turn DUI field sobriety test is only 68% accurate. Although...by DUI standards…this percentage is considered high, I can’t think of another scientific forum where a 68% accuracy rate would be considered even close to reliable. This basically means that one out of every three people is falsely arrested for DUI based on this field sobriety test.

The second problem with the walk-and-turn DUI field sobriety test is that there is a significant portion of our population that can’t perform this test well, even while sober. This includes people who are overweight, people over 60 years old, people who have suffered any type of injury, and those wearing shoes with heels over two inches high.

Unfortunately, these people are rarely, if ever, excused from taking this FST, adding to the inaccurate results of this so-called “reliable” DUI field sobriety test.

The horizontal gaze nystagmus test is one of the three “standardized” DUI field sobriety tests. This test (otherwise known as the HGN test) is actually an eye exam. Since most (if not all) police, sheriff, and other local law enforcement officers typically aren’t ophthalmologists…or, for that matter, any type of doctor…they really have no business administering this type of test.

The fact is that a large percentage of the population naturally displays nystagmus, which is nothing more than the “jerking” of the eye. This poses a significant problem, since, when present, officers believe that horizontal gaze nystagmus is an indicator of drug and/or alcohol impairment. Without medical training, it could be difficult to distinguish between naturally occurring horizontal gaze nystagmus with horizontal gaze nystagmus due to impairment.

Add to this the fact that when properly administered and evaluated, the HGN test is only 77% accurate. This means that about one in every four people will be falsely arrested for DUI based on this so called “reliable” field sobriety test.

No doubt, Sunday’s Super Bowl yielded more DUI arrests than an ordinary Sunday would have. Even though California didn’t have a team playing in the big game, police were still on the lookout for people returning home from watching the game at parties and bars who appeared to be driving under the influence. But just because an individual unfortunately suffered a DUI arrest doesn’t mean he must accept a DUI charge.

Fighting a California DUI…any California DUI…is always worthwhile!

• Technical difficulties with the DUI breath or blood testing/analyzing equipment,
• physiological factors such as your diet and/or medical conditions, and even
• environmental factors such as radio frequency interference

can all adversely affect the accuracy of a DUI chemical test, which can result in a false high blood alcohol concentration (BAC) level.

This is just a very brief sample of why fighting a California DUI should never be overlooked. Don’t ever assume that just because you were arrested for DUI means that you have to be convicted of DUI…it’s simply not the case.

Despite common misperception…due in large part to the fact that cops don’t often share this information…neither California nor Nevada DUI field sobriety tests or “FSTs” are mandatory tests. You have the absolute right to refuse to take these tests and most DUI defense attorneys will advise you to do just that.

This is because DUI field sobriety tests or “FSTs” are highly subjective, used by officers to determine that you are driving under the influence. The problem is that even the “scientifically validated” FSTs are only between 65-77% accurate at detecting alcohol and/or drug impairment. The remaining tests (which comprise the bulk of DUI field sobriety tests) have absolutely no data to support their reliability.

Even a teetotaler (someone who completely abstains from drinking alcohol) would likely “fail” the FST regimen, as officers can find fault with almost anyone’s performance on these “balance and coordination” tests.

So the bottom line is this…don’t help the police arrest you for DUI. If you politely refuse to submit to the FSTs, you are well within your rights to do so and will make it more difficult for the prosecution to prove that you were guilty of drunk driving.

In the March 2010 issue of Men’s Health, the magazine posted a list of America’s “drunkest” cities. Fresno leads the pack, and four other California cities (Riverside, Bakersfield, Modesto, and Sacramento) round out the top 20.

The poll was based on a number of factors:

1. the number of alcohol-related liver disease deaths,


2. the number of binge drinkers in each city,


3. each city’s DUI arrest rates,


4. the number of fatal alcohol-related accidents, and


5. how Mothers Against Drunk Driving rates each city.

It’s no surprise that cities where public transportation is more utilized fared better. Cities such as Boston, MA and New York, NY were at the bottom of the list, as DUI arrests are far lower in these types of metropolitan cities.

During a recent interview, an anonymous 20-year police veteran disclosed some “secrets” on catching drunk drivers. One of these related to observations about driving. “Some people hang on the white lines on the road in an attempt to drive straight. Others drive too aggressively, and many drive too cautiously or slowly. We’re trained to watch for all the obvious signs of drunk driving, and believe me, if you’re looking, it’s easy to spot someone who’s intoxicated.”

The problem with this is that DUI isn’t the only explanation for bad driving. Officer, please tell me which of those observations isn’t also indicative of a driver who is distracted? Who is tired? Who is in a rush? Who is young and reckless? Or who is simply just a good driver (referring to the observation about “cautious” driving)?

DUI isn’t the only explanation for bad driving, it’s just not. As a Los Angeles DUI defense lawyer, I’ve come across plenty of California Highway Patrol Officers, LAPD, and other local cops who still subscribe to this way of thinking…and every time I still love cross-examining them on this very issue, enjoying the immense satisfaction when they concede my point.

Early Sunday morning, a Rochester woman allegedly rolled her car, hit a mailbox, and then drove away. Police later arrested her back at her apartment for leaving the scene of an accident and DUI. The police wouldn’t say why they suspected that the woman was guilty of drunk driving.

And therein lies the problem. Unless this woman told the cops she had been drinking prior to the accident…and not just drinking, but drinking to the point of intoxication…the police had no business arresting her for DUI.

In all states, the crime is driving under the influence. This means that unless the cops can prove that the woman was drunk before the accident, she must be acquitted of the DUI charge. As a Los Angeles DUI defense attorney, I encounter this problem on a regular basis. People have accidents (especially hit and runs), get nervous, go home, and start drinking.

Clues from the accident lead the police to the suspect…who is by then oftentimes drunk…when the police then jump to the conclusion that the individual must have been drinking prior to the accident. This assumption frequently results in a false DUI arrest and wrongful DUI charges for the suspect.

Last month authorities arrested a Philadelphia man for his eighth DUI after he killed a man and seriously injured the man’s wife and daughter while driving his car on the wrong side of the highway. He reportedly had a blood alcohol concentration (BAC) of .229 at the time.

The man was indicted on charges of aggravated manslaughter. Lucky for him, he wasn’t driving in California at the time, or he surely would have been charged with murder.

This is because California courts permit prosecutors to convict repeat DUI offenders for second degree murder under certain circumstances. Known as “Watson” murder or DUI second degree murder, this charge is alleged when prosecutors believe that an individual has special knowledge about the dangers of drinking and driving…and knowingly acts with disregard for that fact.

In theory, these charges could be filed against an individual who suffered at least one prior DUI. The fact that this man was involved in seven prior DUI incidents would surely make him a candidate for this charge.

Unlike typical California DUI manslaughter charges, “Watson” murder or DUI second degree murder charges carry a potential lifetime prison sentence.

Former USC linebacker Rey Maualuga was arrested over the weekend for DUI. He reportedly blew a .157 on the breathalyzer, over twice the legal limit. He was stopped after allegedly hitting a parking meter and two parked cars.

While there’s nothing particularly noteworthy about these facts, it brings up an important point. If you find yourself in the unfortunate position of ever hitting a parking meter, bus bench, or other public property, you must report the incident or face possible charges for Vehicle Code 20002 hit and run.

California Vehicle Code 20002 hit and run charges may be filed anytime you hit public property and don’t immediately report the incident to your local law enforcement agency. You don’t have to leave a note like you would if you hit private property (someone’s car, for example), but you must inform the police.

While the details surrounding Maualuga’s arrest are somewhat scarce, we do know that he was charged with DUI and reckless driving. We can assume that he was either witnessed hitting the meter and cars or that he stopped after doing so, since he wasn’t additionally charged with a hit and run.