One Leg Stand Field Sobriety Test Clues and Defenses

  • ABOUT OUR FIRM

    Robert L. Miller and Associates is a law firm dedicated to clients. We have handled thousands of cases, and have winning results. Learn more about our firm and why it’s the best choice.

    Read more

  • CASE RESULTS

    DUI Dismissals and Case Results
    See some of the many cases we have won at trial or through motions, negotiations, or strategy. Learn why we are so successful in protecting clients

    Read more

  • CONTACT US NOW...

    If you have been arrested, don’t delay. You have only 10 days to save your license. Contact us today for a FREE consultation, and find out about all of your options, and all of your rights, and how to protect yourself.

    Read more

One Leg Stand Field Sobriety Test Clues and Defenses

One Leg Stand Field Sobriety Test Clues and Defenses in DUI cases

One Leg Stand Field Sobriety Test Clues and Defenses in DUI cases

The One Leg Stand Test

This page discusses in detail the One Leg Stand Field Sobriety Test Clues and Defenses in DUI cases.  The one leg stand is one of the Standardized Field Sobriety Tests (SFTS).  As a validated test, it has specific instructions and a specific way that the test is to be given.  As NHTSA indicates in the officer’s training manual for all police officers in the United States, any deviation in the way the test was given means that it may be invalid.

This field sobriety test also has specific scoring, and the one leg stand clues are discussed at the end of this page.

One Leg Stand Instructional Phase

The One Leg Stand FST begins with the instruction phase.  And the instruction phase requires that the tested person be placed into the instructional position.

They are told to stand with their feet together side by side, to keep the arms to the side of their body, and to remain in that position and not to begin the test until told to start. The tested person is then asked if they understand up to this point.

NHTSA says, “In the instructions stage, the subject must stand with their feet together keep arms at sides and listen to the instructions. This divides the subject’s attention between a balancing task (Maintaining a stance) and an information processing task (Listening and remembering instructions).

The one leg stand test requires the tested person to stand on the leg of their choosing, raise the other leg up in front of them approximately 6 inches off the ground while keeping both legs straight. While doing this the tested person is told to keep their arms to their side, point the toe of the elevated foot, look at the toe of the elevated foot, and count out loud by 1000’s until told to stop. This phase of the test is called the balance and counting stage. The test lasts for thirty seconds and is timed by the administrating Deputy.

NHTSA says, “In the balance and counting stage, The subject must raise one leg, either leg, approximately six inches off of the ground, toes pointed out, keeping both legs straight. While looking at the elevated foot, count out loud in the following manner, one thousand and one, one thousand and two, one thousand and three until told to stop. This divides the subject’s attention between balancing (standing on one foot) and small muscle control” (counting out loud). (P.VII-4, NHTSA SFST Student Manual, 2002).

Instructions Stage: Initial Positioning and Verbal Instructions

Officers are instructed to initiate the test by giving the following verbal instructions accompanied by demonstrations:

• Please stand with your feet together and your arms down at the sides like this (Demonstrate).

• Do not start the test until I tell you to do so.

• Do you understand the instructions so far? (Make sure suspect indicates understanding)

Demonstration and Instructions for the balancing and counting stage

Explain the test requirements using the following verbal instructions accompanied by demonstrations:

• When I tell you to start, raise on leg either leg approximately six inches off the ground foot pointed out (Demonstrate one leg stance).

• You must keep both legs straight arms at your sides.

• While holding that position, count out loud in the following manner, 1001 1002 1003 until told to stop. (Demonstrate and count as follows: 1001 1002 1003 etc. Deputy should not look at his foot when conducting the demonstration for Deputy Safety reasons).

• Keep your arms at your sides at all times and keep watching the raised foot.

• Do you understand? (Make sure suspect indicates understanding)

• Go ahead and perform the test.

(Deputy should always time the 30 seconds.  The test should be discontinued after 30 seconds).

(P.VIII-12, NHTSA SFST Student Manual, 2002)

Why it is Important to Give the Test Exactly as Prescribed

An important fact helpful to Orange County DUI Attorneys is that the NHTSA officer training manual, used to train officers in administering field sobriety testing, states as follows:

“IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARDIZED MANNER, THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECTS PERFORMANCE, THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED THE VALIDITY IS COMPROMISED” (P.VIII-19, SFST student manual, HS 178 R1/02).

THE STANDARDIZED FIELD SOBRIETY TESTS ARE NOT AT ALL FLEXIBLE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THIS COURSE (P. 8, SFST Administrators Guide, HS 178 R1/02).

Test Results

Officers often state that a client’s foot “swayed from side to side”, or that both arms were kept raised to shoulder level during the performance of this test. No information on the timing of the elapsed 30 seconds is usually recorded, although there is a controversy on whether or not the test actually requires an officer to do so.

The One leg stand requires the tested person to stand on one leg for thirty seconds that is timed by the administrating Deputy. There is usually no listing of time in the Officer’s report that indicated a client having stood on one leg for that required amount of time. NHTSA says, “Deputy should always time the thirty seconds. The test should be discontinued after thirty seconds” (P. VIII-12 NHTSA SFST Student Manual, 2002).

NHTSA uses the following clues of intoxication for scoring this test.

ONE LEG STAND SFST CLUES

For the One leg stand (OLS) test, there exist four clues of intoxication:

1. Swaying

2. Uses arms to balance

3. Hopping

4. Puts foot down

• Note that if the suspect cannot perform the test (test stopped or not requested for suspect’s safety), then the officer will assign all 4 clues.

TOTAL SCORE: _____________(Decision Point: 2; Max: 4)

How do you beat the One Leg Stand field sobriety Test?

Here’s a tip from an Orange County DUI Lawyer: One of the “tricks” that officers use to remain stable while demonstrating the case, is to bend the knee, instead of locking the knee, while having the other leg extended.  That makes you more stable and you are unlikely to lose your balance that way.

Use of the One Leg Stand test in DUI Cases

In the practical world, officers find most often swaying of the foot (only) noted. However, the training manual indicates overall body sway is the clue of intoxication. Using arms to balance is a very common cue, but that would is only one of four.  Only when you have two or more cues, is there some support for a conclusion that a person has been driving drunk, or is intoxicated.

If you need the help of our Orange County DUI Lawyers, who are all trained in Field Sobriety Testing, please contact our firm, or call us at (877) 568-2977, anytime.

Walk and Turn Field Sobriety Test DUI Defenses

The Walk and Turn Field Sobriety Test.

The Walk and Turn test is one of the standardized DUI field sobriety tests that police officers everywhere use as part of a battery of tests to see if someone is under the influence of alcohol (or above a .08% alcohol level).  Walk and Turn Field Sobriety Test DUI Defenses exist when the test is not given as trained, or when one of the known limitations of the test exists.

The manual used to train all officers in the United States, the NHTSA manual, contains the instructions and strict testing protocol for this test also. There are two stages for the walk and turn test. They are the “instructional stage” where the tested individual is required to place the left foot on a real or imaginary line with the right foot in front of it touching heel to toe and to keep the arms down to the side. The tested individual is told not to begin the test until told to do so and asked if they understand.

“In the instruction stage, the subject must stand with their feet in a heel to toe position, keep their arms to the side, and listen to the instructions. The Instructions Stage divides the subject’s attention between a balancing task (standing while maintaining a heel to toe position) and an information processing task (listening to and remembering instructions)” (P. VII-3, NHTSA SFST Student Manual, 2002).

The second stage is the “walking stage”, where the tested person is told to walk heel to toe nine steps along the line, turn in a prescribed manner, and return back down the line heel to toe nine steps. The tested individual is told to look at their feet, count the steps out loud, keep the arms to the side and once they begin the test not to stop walking until it is completed. They are again asked if they understand the instruction and if so they are told to begin the test.

“In the Walking Stage, the subject takes nine heel to toe steps, turns in a prescribed manner and take nine heel to toe steps back, while counting the steps out loud, while watching their feet. During the turn the subject keeps their front foot on the line, turns in a prescribed manner, and uses the other foot to take several small steps to complete the turn. The walking stage divides the subjects attention among a balancing task (walking heel to toe and turning) a small muscle control task (counting out loud) and a short term memory task (recalling the number of steps and the turning instructions)” (P. VII-3, NHTSA SFST Student Manual, 2002).

There are eight clues associated with the walk and turn test. Two can be assessed in the “instructional stage” (starts too soon, looses balance) and the remaining six in the” walking stage” (misses heel to toe, steps off line, uses arms to balance, stops while walking, too many steps, improper turn).

The Walk and Turn Field Sobriety Test - Instructional Stage.

Walk and Turn Instruction stage: Initial Positioning and Verbal Instructions

For standardization in the performance of this test have the suspect assume the heel to toe stance by giving the following verbal instructions accompanied by demonstrations:

• Place your left foot on the line (real or imaginary). Demonstrate

• Place your right foot on the line ahead of the left foot with the heel of the right foot against the toe of left foot. Demonstrate.

• Place your arms down at your sides. Demonstrate.

• Keep this position until I tell you to begin. Do not start to walk until told to do so.

• Do you understand the instructions so far? (Make sure suspect indicates understanding).

Demonstration and instructions for the walking stage

Explain the test requirements using the following instructions accompanied by demonstrations, as follows:

• When I tell you to start take nine heel to toe steps, turn, and take nine heel to toe steps back. (Demonstrate 3 heel to toe steps).

• When you turn keep the front foot on the line and turn by taking a series of small steps with the other foot like this. (Demonstrate).

• While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.

• Once you start walking, do not stop until you have completed the test.

• Do you understand the instructions? (Make sure suspect understands).

• Begin and count your first step from the heel to toe position as one.

(P. VIII-9, NHTSA SFST Student Manual)

Walk and Turn Field Sobriety Test DUI Defenses: In the instructional stage of the test the most people, in my experience, have problems maintaining the instructional position and not beginning the test until instructed to do so, and with the turn after the first nine steps, as it is an unusual form of turning and requires the correct foot be used.

Walk and Turn Field Sobriety Test DUI Defenses – Officer Instructions.  Most officers do not document well whether a suspect was asked if the driver understood the instructions up to that point. By omitting and changing these administrative protocols, the test has been altered and is no longer a standardized, validated sobriety test. As a result of the changes having been made the test has been compromised and the results will be invalid and unreliable.

NHTSA says that: “IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARDIZED MANNER, THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECTS PERFORMANCE, THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED THE VALIDITY IS COMPROMISED” (P. VIII-19, SFST student manual, HS 178 R1/02).

THE STANDARDIZED FIELD SOBRIETY TESTS ARE NOT AT ALL FLEXIBLE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THIS COURSE (P. 8, SFST Administrators Guide, HS 178 R1/02).

Walk and Turn Field Sobriety Test DUI Results and Defenses.

Walk and Turn Field Sobriety Test DUI Defenses: Scoring.  For this test, two or more are indications of being above a .08%.  If the officer concluded that a person had less than two indications of intoxication, and still concluded that the test was failed, or that the person showed signs of being intoxicated, that is incorrect, according to the testing protocol, and would be a defense to the test.

Walk and Turn Field Sobriety Test DUI Defenses – Limitations

Walk and Turn Field Sobriety Test DUI Defenses also can exist where there are the limitations contained in the officer training manual:

“The original research indicated that individuals over 65 years of age, who have back, leg or middle ear problems had difficulty performing this test. Individual wearing heels more than 2 inches high should be given the opportunity to remove their shoes”. (P. VIII-11, NHTSA SFST Student Manual, 2002).

Examples of conditions that may interfere with suspect’s performance of the walk and turn test:

• Wind/weather conditions;

• Suspects age, weight;

• Suspects footwear.

Walk and Turn Field Sobriety Test DUI Defenses From the Studies

The original validation studies for the Walk and Turn, from the original 1977 study, indicated that two or more of the following clues corresponded to a blood alcohol level above .10%, and a 1996 study stated two or more clues corresponded to a level above .08:

1. Can’t balance during instructions.

2. Starts too soon.

3. Stops while walking.

4. Doesn’t touch heel to toe.

5. Steps off the line.

6. Uses arms for balance.

7. Improper Turn / Loses balance on turn.

8. Wrong number of steps.

Walk and Turn Field Sobriety Test DUI Defenses – counting the cues.

Walk and Turn Field Sobriety Test DUI Defenses – scoring and adding up the cues.  With this test, having any two of those cues allows the officer to conclude intoxication.  If there existed, for example,  cue 8, the wrong number of steps, cue 2, starting too soon, perhaps cue 1 (if there was a lack of balance), and cue 4, not walking heel to toe, there is the conclusion that the person was intoxicated.

Officers often  indicated that not counting is a cue of intoxication, which is clearly wrong. “Failing to stand in the start position” is not a cue, although if that means there was a lack of balance, it might be. (We usually review any patrol car video carefully, while being mindful of the eight cues above). An Orange County DUI Defense Lawyer can potentially argue, however, that despite the correlation in the studies, (especially the 1996 study) that the subject passed the remaining cues.

If you have questions about the use of field sobriety test, like the Walk and Turn test, in your DUI case, please contact our firm, use our case evaluation form, or call us, anytime, at (877) 568-2977.

What if you pass the field sobriety tests?

What if you pass the field sobriety tests?

Field sobriety tests are used by law enforcement to analyze whether or not a person might be above a .08% alcohol level, based upon standardized sobriety testing.  Although many DUI defense attorneys state that the field sobriety tests are subjective, and cannot be passed, there is a scoring system that officers are trained to use, to look for “cues of intoxication”.

In a recent case, a police report stated as follows, in part:

1.           The field sobriety test that Mr. Arrested performed was the “one leg stand.

2.           Mr. Arrested kept his foot off the ground for the entire time of the One Leg Stand test.

3.           Therefore, Mr. Arrested “passed” the test.

So, what is the effect in a case when someone passes the field sobriety test?  According to the DWI Detection and Standardized Field Sobriety Testing Manual (2013 edition), the One Leg Stand is now considered the most reliable field sobriety test for detecting BAC levels of .08 or higher.

Originally, the test was only considered 65% of the time. DWI Detection and Standardized Field Sobriety Testing (2006 edition), HS 178 R2/06, Page VII-7. (Attachment #2).

Amazingly, over the next 7 years, without conducting any new research or new studies, they decided to create “new” reliability numbers.

The “new” numbers now say that the One Leg Stand is “83% accurate in identifying subjects whose BAC were .08 or more.” DWI Detection and Standardized Field Sobriety Testing (2013 edition), HS 178 R5/13 (page 28 of 31).

Since Mr. Arrested kept his foot off the ground the entire time during the One Leg Stand exercise, it shows that his B.A.C. at the time of the test was below .08, and as a result, even though he passed these field sobriety exercises, Mr. Arrested was still arrested for Driving Under the Influence.

The Law and Probable Cause in DUI csaes.

“Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.” State v. Kliphouse, 771 So.2d 16, at 22 (Fla. 4th DCA 2000) (emphasis added).

For an officer to request that a driver submit to field sobriety exercises, he must have reasonable suspicion that the individual is driving under the influence. State v. Taylor, 752 So.2d 701 (Fla. 1995). See also, Department of Highway and Motor Vehicles v. Haskins75 So.2d 625 (Fla. 2d DCA 1999); State v. Brown725 So.2d 441 (Fla. 5th DCA 1999); Department of Highway Safety and Motor Vehicles v. Guthrie662 So.2d 404 (Fla. 1st DCA 1995).

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948).

Warrantless searches and seizures are per se unreasonable unless they fall within one of a host of well-established exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed 2d 576 (1967). 

Probable cause is one of these well-established exceptions, and the burden rests with the prosecution to produce evidence that the police officer conducting the search or seizure had probable cause to do so. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968); Doctor v. State, 596 So.2d 442 (Fla. 1992).

The constitutional validity of a warrantless arrest turns on “whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (emphasis added).

The roadside administration and evaluation of field sobriety exercises necessitates an officer’s purely subjective opinion of performance and impairment. “It is for this reason that probable cause for DUI must be scrutinized all the more in order to prevent unbridled abuse of the awesome power to arrest someone and change their lives forever.”  State v. Harkey, 19 Florida Law Weekly Supp. 298 (17th Circuit, County Court, November 28, 2011. Honorable Mindy Solomon).

For these reasons, a Defendant can request a court to suppress evidence in a DUI case, by suppressing the results, and any references, to the field sobriety tests.

However,  according to the 1998 San Diego validation study, officers are allowed to make their arrest decisions based on the results of the Horizontal Gaze Nystagmus (HGN) test alone. This basically gives officers permission to ignore any results of the walk and turn and/or the one leg stand.

If you have questions about passing, or failing, any field sobriety tests, please contact our firm for a free consultation.  We are always happy to help.

Can DUI blood test results be challenged?

Can DUI blood test results be challenged?

Can the police take your blood in a DUI?

The blood test in a DUI case is usually a major part of the prosecution’s case.  If properly collected, and measured, it shows that the blood contained specific amounts of alcohol or drugs (medications or illegal narcotics).  Can DUI blood test results be challenged? Well, this posting discusses the major ways that a blood test can be challenged by a qualified Orange County DUI Attorney.

You should also see our more in-depth page on all the defenses to blood tests in a DUI case.

Improper Calibration.

DUI blood test results can be challenged based upon improper calibration.  Calibration is required of any measuring device, to make sure accuracy is maintained, and if the blood test result was done on improperly calibrated equipment, the test results may be meaningless. An Orange County DUI Lawyer that knows how to do a discovery request or subpoena for this information, can obtain calibration results in a DUI case, and also bring the appropriate motion to exclude the use of improper evidence in a motion or a trial.

Improper Chain of Custody.

Blood test results in a DUI case can also be challenged based upon an improper chain of custody.  Chain of custody records are kept, to make sure that there is not the probability or possibility of contamination, or of improper handling, or tampering, and is a crucial part of the case for most knowledgeable Orange County DUI Attorneys.

Failure to Draw Blood Using a Licensed Phlebotomist.

DUI blood tests may also be invalid if the person drawing the blood was not licensed to do so, as that is a requirement.  In addition to being a California licensed phlebotomist, the person drawing the blood must follow medically accepted procedures for blood draw, and for alcohol cases, must not swab the arm with alcohol, and must instead use betadine, iodine, or hydrogen peroxide, to avoid contamination from introducing outside alcohol in an alcohol case test. Not all attorneys will check for this, but most of the best DUI lawyers in Orange County, CA will.

Improper Blood Storage.

Under the procedures contained in the Administrative Code Title 17, any blood drawn must be kept refrigerated, and the sample integrity must not be compromised.  Since bacterial contamination can ferment the blood at a higher rate during higher temperatures (or at room temperature), contamination issues are much higher if the blood is not refrigerated as required by law. That can cause a DUI to be dismissed by any of the Orange County DUI Lawyers that know how to argue contamination issues and bring a motion to dismiss the DUI case.

Contact our law firm today

Can DUI blood test results be challenged?  If you have any questions for us about challenging the blood test results in your DUI case, or in the DUI case of a loved one, contact our firm, or call us, anytime.  We are happy to help.

 

Why does the Orange County DA require DNA?

Why does the Orange County DA require DNA?

Why does the Orange County DA require DNA in all OC cases?

For most pleas of guilty in Orange County, almost all defendants are surprised to see that the DA requires that DNA be submitted to a local database.  So why does the Orange County DA require DNA?(The photograph above is the DNA collection office at the North Justice Center in Fullerton).

You may be wondering why that is, and other than an older Los Angeles Times article, information on the where, what, why, and how of DNA submission (and why it is unique to Orange County criminal cases) is very difficult to find. So why does the Orange County DA require DNA?

How did the Orange County DNA database come to be?

The history starts with the head Orange County District Attorney, Anthony Rackauckas, who is a former Orange County Superior Court judge, going on vacation to Scandinavia.  While in Sweden, he met with local prosecutors, who gave a tour and described the benefits of their “secret weapon” – a local Swedish database that collected data for everyone convicted of a crime.

At the time, around 2007, there was a high profile crime in Sweden – a murder of a woman (a single mother with a baby at home), who was killed in her home, and who was stabbed one time by an unknown intruder with such force, that her body was pinned by the knife to the floorboard of her home.  That crime was solved by use of a voluntary local database, where some 200 people in a town gave consent to contribute DNA, and it narrowed down, in a relatively genetically non-diverse community, suspects that were a close match, and eventually ended upon in an arrest, a confession, and a conviction for murder.

Mr.Rackauckas, as a former judge, was so impressed with this crime-fighting tool, that he petitioned for, and obtained, funding and procedures to create a local, Orange County only, database, to both solve older “cold case crimes”, and also create a database to match  DNA against future crimes.

For any other jurisdiction in California, including courts and prosecutors in Los Angeles, San Diego County, Riverside, or San Bernardino, a DNA database is not maintained, and DNA is not required.  This is in Orange County only, and they call it the “spit and acquit”, or the “spit it and quit it” program at the DA’s office (and among defense attorneys).

For certain felony convictions, persons going to State Prison are required to submit a DNA sample under a separate  2004 law applicable to felons.

Who has to submit DNA to the Orange County DA’s database?

As you can imagine, the DNA database has worried some privacy advocates, and some defendants, along with bringing the criticism of some constitutional scholars.

One concern is that the DNA collection lab is not a state qualified lab, and is not approved by the State, which is highly unusual.  Another is the rights of the defendant to not consent to DNA testing and to assert their innocence.  To get around these concerns, the submission of DNA is made completely voluntary.  Only persons that agree, in writing, not to challenge the DNA sample requirement, and then state on video that they give the DNA voluntarily, without force or threats to them, or their loved ones, actually have DNA taken from them.

Why does the Orange County DA require DNA? The Orange County DA’s office policies require DNA whenever there is a dismissal of any count, any charge, or the entire case from the DA.  So it is an effective tool during plea bargains with an Orange County criminal defense attorney, as it allows a “carrot on a stick”, as an incentive, to have defendants in criminal cases agree to build up the database and have their charges dismissed.

For certain Orange County drug crimes, certain Orange County shoplifting crimes, and some vandalism and other smaller crimes, the PC 1000 program has been used. That program requires that a plea is entered, and then allows the case to be dismissed at a later date after completion of an educational program.  The DNA sample submission was added to this program, with most defendants agreeing to have their case dismissed eventually with all the conditions of the Penal Code 1000 program, including DNA.

For Orange County DUI cases, there is often the offer made to the Orange County DUI attorney or Orange County DUI lawyer handling the case to dismiss one of the two DUI counts (23152(a) and 23152(b)), in exchange for giving DNA.  The DUI defendant in an Orange County case would plead guilty to only one of the counts filed, instead of both counts filed, and one would be dismissed.  In fact, in 2013, a man who pled guilty to an Orange County DUI and gave his DNA was found to match a formerly unsolved rape case and was promptly charged with the rape.

When DNA is not collected in an Orange County case.

DNA would not apply when there is not a count or charge being dismissed.  For example, when the court makes an offer that bypasses or improves upon the DA’s offer, the court is not dismissing any counts, but instead accepting a plea to all counts or charges filed, so DNA would not be necessary.

Also, DNA is only collected once, so if it was collected in the past, there is no offer to submit it again.

Where DNA is collected, and how.

Why does the Orange County DA require DNA?

DNA collection offices exist in every courthouse in Orange County (Santa Ana, Newport Beach, Fullerton, and Westminster).  An appointment is not required.  Only Orange County courthouses have the DNA collection station, as this is an Orange County program only.

The DNA program collects a $75 fee from each defendant for the collection of DNA.  After presenting paperwork, and a photo ID, and reading a short statement into a camera, DNA is collected by using a cotton swab that collects saliva by rubbing it inside the cheek.

Why does the Orange County DA require DNA?  The Orange County DA requires DNA in the hopes that it will solve future crimes, or provide a resolution of past unsolved cases.  But it also arguably gives the defendants an avenue to have charges dismissed.

Our office and our DUI attorney Orange County Robert Miller have experience in dealing with the DNA program of the Orange County District Attorney’s office since its inception.  You can contact the firm anytime, or call us at the number at the top of this page with any questions.

Horizontal Gaze Nystagmus Field Sobriety Test

Horizontal Gaze Nystagmus Field Sobriety Test

The manual used to train all officers in the United States, the NHTSA manual, contains the instructions and strict testing protocol for this test, along with all Standardized Field Sobriety Tests. Those instructions read as follows:

Horizontal Gaze Nystagmus (HGN) Field Sobriety Test

Horizontal Gaze Nystagmus

The Horizontal Gaze Nystagmus (HGN) test checks for involuntary jerking of the eyes as they gaze to the side. The test begins by the Deputy placing the tested person in the instructional stance where the feet are placed together and the arms are kept to the side. The tested person is told to maintain that position until told otherwise and asked if they understand.

Once the tested person is in the in the instructional position the Deputy must qualify the tested individual as a candidate for the test by ensuring that the eyes exhibit equal tracking and have equal pupil size. If the eyes do not track equally or the pupils are of different size the person is not a candidate and the test shall not be conducted.

If found to be qualified, the test is conducted with the Deputy presenting a stimulus for the tested person to fix their vision upon. The stimulus is placed approximately 12-15 inches in front of the individuals face slightly above eyebrow level. The test consists of the Deputy moving the stimulus horizontally at designated speeds. While doing this, the testing Deputy looks for horizontal jerking in the eyes at different positional locations.

There are a total of three clues that can be assessed in this test: lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of nystagmus prior to 45 degrees.

Each eye is scored independently for three clues in each eye giving a total of six indicators/cues.

Test Administration

According to NHTSA, the testing Deputy must provide the instructions for the test to the suspect in a standardized manner covering specific elements. NHTSA says,

“Give the suspect appropriate verbal instructions. Put feet together, hands at the side. Keep head still. Look at the stimulus. Follow the movement of the stimulus with the eyes only. Keep looking at the stimulus until the test is over. (Instructor notes) Emphasize that these are the major points that must be conveyed during the verbal instructions” (P. VIII-13, NHTSA SFST Instructor Manual, 2002).

“Give the suspect the following instructions from a safe position. I am going to check your eyes. Keep your head still and follow the stimulus with your eyes only. Keep following the stimulus with your eyes until I tell you to stop.”

HGN Qualification

According to NHTSA “Prior to the administration of the HGN, the eyes are checked for equal tracking (can they follow an object together) and equal pupil size. If the eyes do not track together, or if the pupils are noticeably unequal in size, the chance of medical disorders or injuries causing the nystagmus is present” (P. VIII-5, NHTSA SFST student manual, HS 178 R1/02).

NHTSA says, “Position the stimulus approximately 12-15 inches from the suspect’s nose and slightly above eye level. You may observe resting nystagmus at this time. Check the suspect’s eyes for the ability to track together. Move the stimulus smoothly across the suspect’s entire field of vision. Check to see if the eyes track the stimulus together or one lags behind the other. If the eyes don’t track together it could indicate a possible medical disorder, injury or blindness. Next check to see that both pupils are equal in size. If they are not, this may indicate a head injury”.

Movement of the stimulus for the check for the qualification pass checks equal tracking should take approximately 2 seconds. NHTSA says, “Check for Equal Tracking: Move the stimulus rapidly from center to far right to far left and back to center (Approximately 2 seconds)” (P.VIII-13, NHTSA SFST Instructor Manual, HS 178 R1/02).

Lack of Smooth Pursuit

According to NHTSA, “Check the suspects left eye by moving the stimulus to your right.

Move the stimulus smoothly, at a speed that requires approximately two seconds to bring the suspects eye as far to the side as it can go. While moving the stimulus look at the suspect’s eye and determine whether it is able to pursue smoothly. Now move the stimulus all the way to the left, back across the suspects’ face, checking if the right eye pursues smoothly. Movement of the stimulus should take approximately two seconds out and two seconds back for each eye. Repeat the procedure”. (P.VIII-7, NHTSA SFST Student Manual, 2002). (See the video at the top of the page from DUI lawyer Orange County Robert Miller)

Distinct Nystagmus at Maximum Deviation

NHTSA says, “After you have checked both eyes for lack of smooth pursuit, check the eyes for distinct nystagmus at maximum deviation beginning with the suspects left eye.

Simply move the object to the suspects left side until the eye has gone as far to the side as possible. Usually, no white will be showing in the corner of the eye at maximum deviation.

Hold the eye at that position for a minimum of four seconds, and observe the eye for distinct and sustained nystagmus. Move the stimulus all the way across the suspects face checking the right eye holding that position for a minimum of four seconds. Repeat the procedure”. (p. VIII-7, NHTSA SFST Student Manual, 2002)

“Distinct nystagmus will be evident when the eye is held at maximum deviation for a minimum of four seconds. People exhibit slight jerking of the eye at maximum deviation even when unimpaired, but this will not be evident or sustained for more than a few seconds. When impaired by alcohol, the jerking will be larger, more pronounced, sustained for more than four seconds and easily observable” (P.VIII-5, NHTSA SFST Student Manual, 2002).

Onset of Nystagmus Prior to 45 Degrees

NHTSA says, “Next, check for onset of nystagmus prior to 45 degrees. Start moving the stimulus toward the right (suspects left eye) at a speed that would take approximately four seconds for the stimulus to reach the edge of the suspect’s shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues.

Now move the stimulus to the left (suspect’s right eye) at a speed that would take approximately four seconds for the stimulus to reach the edge of the suspect’s shoulder.

Watch the eye carefully for any sign of jerking. When you see it stop and verify that the jerking continues, repeating the procedure.” (P. VIII-7, NHTSA SFST student manual, HS 178 R1/02).

HGN Scoring Test Analysis

The scoring chart used in training for officers, approved by NHTSA, states as follows:

Horizontal Gaze Nystagmus

  • Are you wearing glasses or contacts?
  • I’m going to check your eyes.
  • Stand with your feet together, with your hands by your side.
  • Follow the stimulus with your eyes, but do not move your head.
  • Focus on the stimulus until I tell you to stop.
  • Hold stimulus approx. 12” to 15” in front of the face.
  • CHECK EQUAL TRACKING & PUPIL SIZE.

Equal Tracking?     √ Yes √  No

Equal Pupil Size     √ Yes  √  No

CLUES: LEFT – RIGHT

  • Lack of Smooth Pursuit
  • 2 seconds out; 2 seconds back
  • Distinct Nystagmus
  • @Maximum Deviation
  • Hold minimum of 4 seconds
  • Onset of Nystagmus Prior to 45 Degrees
  • Move at speed taking 4 seconds
  • Vertical Nystagmus     √   Yes   √  No
  • Hold approx. 4 seconds

TOTAL SCORE: (Decision Point: 4; Max: 6)

According to our Orange County DUI lawyer, Robert Miller, an officer would use this information to determine if, according to the cues that are being looked for, a driver had four or more cues of intoxication.  There often is an indication that there may be a question as to whether or not there were clues in both eyes. Nystagmus in one eye only is typically an indication of neurological disorders, not intoxication.

Nystagmus in one eye only is typically an indication of neurological disorders, not intoxication.

How to beat the Horizontal Gaze Nystagmus Field Sobriety Test.

A friend of our DUI attorney Orange County, who is a medical doctor, insists that you may pass this test by using a simple technique.  The technique is to claim that your eyes cannot move all the way to the side and be sure to not move your eyes more than 45 degrees – i.e., moving your eyes up to 45 degrees but no further.  That usually ends the test, but without any clues of intoxication.  Your mileage may vary.

The scientific and medical literature also indicate there are limitations of the use of the nystagmus test for alcohol intoxication:

Horizontal Gaze Nystagmus DUI Defenses

Unfortunately, that alcohol can produce horizontal gaze-evoked nystagmus has led to a “roadside sobriety” test conducted by law-enforcement officers. Nystagmus as an indicator of alcohol intoxication is fraught with extraordinary pitfalls: many normal individuals have physiologic end-point nystagmus; small doses of tranquilizers that wouldn’t interfere with driving ability can also produce nystagmus; nystagmus may be congenital or consequent to structural neurologic disease; and often a neuro-ophthalmologist or sophisticated oculographer is required to determine whether nystagmus is pathologic. Such judgments are difficult for experts to make under the best conditions and impossible to make accurately under roadside conditions. It is unreasonable to have cursorily trained law officers using the test, no matter how intelligent, perceptive, and well meaning they might be. As noted, meticulous history taking and drug-screening blood studies are often essential in evaluating patients with nystagmus.

(The above quote cites Kattah JC, Schilling R, Liu SJ, et al: Oculomotor manifestations of acute alcohol intoxication. In Smith JL, Katz RS (eds): Neuro-ophthalmology enters the nineties. Miami: Dutton Press, 1988:233).

If you have questions for our Orange County DUI Lawyers, please contact us.  We are happy to answer questions or otherwise help with your DUI case anytime.

 

DUI Police Officer Shows up Drunk at MADD luncheon

MADD Orange County

DUI Police Officer Shows up Drunk at MADD luncheon last year. After being singled out for stopping drinking and driving on roads in his jurisdiction, a police officer showed up intoxicated to a MADD (Mothers Against Drunk Driving) awards luncheon held in his honor.

DUI Officer Michael Szeliga of the Pinellas County Sheriff’s Department was at an all expense paid two-day DUI law enforcement training, followed by a luncheon to honor him making 100 DUI arrests in the county. 

MADD is extremely actively involved in Orange County, California DUIs, and the Orange County Chapter of MADD  has a very active chapter here.  MADD began in California, and the Orange County Superior Court requires people convicted of a DUI in Orange County to attend a MADD presentation as part of their sentence in most cases, and make a donation, or contribution, to MADD, in DUI conviction cases.

The MADD Victim Impact Program (VIP) in Orange County is given twice a month, in locations that have been changing as of late, but as of this writing (2017) are in the City of Orange, California.

DUI Police Officer Shows Up Drunk at Madd Luncheon and was Reprimanded

According to an internal affairs investigation, the officer was found wandering in a hotel hallway stripped to his underwear. He also was described as “staggeringly drunk” by a witness at the Friday night banquet where he was set to receive the MADD accolade, and another witness said that the officer was too drunk to walk.

Two Tampa television stations showed that the deputy packed a bottle of Jameson whiskey in his patrol car before driving across the state to the Hyatt Regency Pier 66 Hotel in Fort Lauderdale with two other deputies.

DUI Police Officer Shows Up Drunk at Madd Luncheon – Szeliga signed in and attended a morning session of the DUI training but left following the first break to drink whiskey and cokes, having decided it was no longer “relevant” to him since he was transferring to the child-protection unit. However, MADD required attendance at all training in exchange for picking up expenses.

Contact our law firm today

If you have questions for or need our, Orange County DUI Attorneys, contact our firm for a consultation any time.  We are here to help you or your loved one.

 

Orange County Central Justice Center Santa Ana Courthouse

Orange County Central Justice Center Santa Ana Courthouse

Orange County Central Justice Center or Santa Ana Courthouse Information – including what you need to know if you have to go to the Orange County Superior Court in Santa Ana.

Santa Ana Court

The OC Courthouse in Santa Ana was built in 1968, and was designed by modernist architect Richard Neutra in functional 1960s style during a time when the county, city, and federal and state buildings were concentrated in one plaza in the County Seat of Government..  It is the largest courthouse in Orange County, and has 66 courtrooms.  Its average daily pedestrian traffic is approximately 8,000 daily visitors and workers at the courthouse through the currently two entrances to the courthouse.

Types of Cases Handled

The Central Justice Center branch court handles the following types of cases, currently:

  1. Criminal Matters, both Felony and Misdemeanor cases.
  2. Unlimited Civil matters of all types.
  3. Limited Civil matters of all types.
  4. Small Claims matters of all types.
  5. Superior Court Appellate Department Appeals
  6. Probate Matters (subject to transfer to the Lamoreaux Justice Center).
  7. Mental Health matters.
  8. Elder/Dependent Adult Restraining Orders.
  9. Family Law Matters (subject to transfer to the Lamoreaux Justice Center)
  10. Traffic Matters of all types from the jurisdictions below.

DUI Jurisdictions Handled

The Courthouse in Santa Ana also handles DUI cases, and other criminal cases, from any arrests within the following cities:

This court has no exterior traffic windows, so you will need to enter the court to pay fines, get information, and have the court provide copies of documents after the security check line.

Entering and Security:

The Santa Ana Courthouse has been a full security facility since April 15, 1999.  That means that you will go through a metal detector and your bags and belongings will be scanned.  It helps to remove belts, cellphones, loose change, and anything metal before entering the courthouse.  Laptops are required to be put in trays through the security scanner.

The only entrances, currently, are the North entrance, and the South entrance, of the courthouse, facing Civic Center Drive West, and facing the Civic Center Plaza on the South.

Your Court Appearance in the Court in Santa Ana.

If you have been arrested for DUI and are appearing at the Central Justice Center, you will have typically been given a court date on a document, for your arraignment.

Your arraignment will be in Department C-54, on the second floor.  

After your arraignment, your case proceeds to pretrial.

Misdemeanor pretrials are all heard in Department C-47, upstairs on the second floor of the Santa Ana Courthouse.

If you have a case that has already been set for a trial at a previous date by a judge, then misdemeanor trials start in C-47, where they can be assigned to any courthouse in the courthouse, or anywhere in Orange County.

Persons Held in Jail for their Court Date in Santa Ana: If you are in court for a case where someone is in custody, they are usually held in the basement under the custody of the Orange County Sheriff’s Department and brought up to court when ready, as needed by the court.  Santa Ana also has Department CJ-1, which is a department in the County Jail (hence the CJ), where inmates can have their initial hearing without being transferred to another court, and have bail reviewed.

People in Jail or in Custody at the Central Justice Center Santa Ana

Approximately 4,000 or more inmates are transported, by bus, to the Central Justice Facility each month from various Orange County Jail facilities. The holding facility at the Central Justice Facility has a rated capacity for 523 inmates. However, those in custody are required to be kept separated (by gender, by ethnicity, gang affiliations, health, or protective custody), and as a result, the Santa Ana Courthouse detention facility cannot safely hold more than 350 inmates.

Only the lawyers and attorneys that are a member of the California Bar Association and members of the Orange County Sheriff’s Department are allowed to visit persons in custody in the courthouse.

Orange County Central Justice Center Santa Ana Courthouse

The courthouse building is open from 730am to 4pm, and the courtrooms are open from 8:30 a.m. to 12pm, and again from 1:30 p.m. to 4:30 p.m..  The address to the courthouse is as follows:

Central Justice Center

700 Civic Center Drive West
Santa Ana, CA 92701
(657) 622-6878 

Central-Justice-Center OC Superior Court

Central Justice Center Parking

Santa Ana Courthouse Parking is not available for free, except for jurors.  However, parking is available in the civil center plaza lot, which can be entered from Santa Ana Boulevard, or Flower Street, in Santa Ana, near the courthouse on 13th Street adjacent to the Orange County Law Library, or anywhere on the streets or many private lots as allowed near the courthouse.  Watch out for meter parking here – they are very aggressive about ticketing if your meter is expired.  The courthouse has a fairly amateur parking map available for your use also showing various options.

Central Justice Center Telephone Numbers

The list of telephone numbers for the courthouse is available here:  http://www.occourts.org/locations/general-phone.html

Central Justice Center District Attorney’s Office

The Orange County District Attorney has an office on the second floor inside the courthouse building.  Phone number is 714-834-3952. Website: Orange County District Attorney Central Justice Center.

The Main Office of the Orange County District Attorney, for all of Orange County, is located across the street, at 401 Civic Center Drive, in Santa Ana, CA 92701.  Their phone number is: 714-834-3600. Their website is: Orange County District Attorney Main Office.

Central Justice Center Public Defender’s Office

The Orange County Public Defender’s Office is in a separate building nearby, facing Ross Street, at 14 Civic Center Plaza, Santa Ana, CA 92701.  Their phone number is:(714) 834-2144. Their website is: Orange County Public Defender’s Office.

Central Justice Center Victim/Witness Office

There is a Victim’s and Witnesses Office in the Santa Ana Courthouse also, which can help victims or those testifying, with questions and support.  They are located in the hard to find room 292, on the second floor (between the elevators and the restrooms).  Their Phone Number is: (714) 896-7188.  If you are a Witness and need Coordination of your participation in a case, call: (714) 834-4350.  Their website is: Orange County Victims Services Central Justice Center.

Central Justice Center Cafeteria

There is a cafeteria on the third floor, conveniently next to the Orange County Jury Assembly room, where jurors wait for assignments to courtrooms.

Central Justice Center Earthquake Information

The Santa Ana Courthouse has received a Seismic Rating Level S1,  as far as protection against Earthquakes, mainly because of its steel and concrete construction and its plaster ceilings.

If you need to speak with a lawyer that has years of experience in the Central Justice Center / Orange County Santa Ana Courthouse, contact our firm or call us at (877) 942-3090.

DUI Checkpoints in Anaheim, Irvine, La Habra, and Santa Ana

DUI Checkpoints in Anaheim, Irvine, La Habra, and Santa Ana

DUI Checkpoints Orange County

DUI Checkpoints in Anaheim, Irvine, La Habra, and Santa Ana announced by law enforcement for this weekend as follows:

Anaheim DUI Checkpoint:

The Anaheim Police Department is calling their checkpoint tomorrow a DUI/drivers license checkpoint, and it will take place in the area of Magnolia and Crescent avenues from 8:00 p.m.  tonight, July 22, 2016, through 3 a.m. Saturday.

Irvine DUI Checkpoint:

The DUI checkpoint in Irvine will be conducted Friday, July 22, 2016, from 8:00 p.m. to 2:00 a.m. in the area of Jamboree Road and Michelson Drive, as announced by the Irvine Police Department Irvine DUI Arrest Force.

La Habra DUI Checkpoint

The La Habra Police Department announced a DUI checkpoint tonight (July 22nd, 2016) in the City of La Habra, from 9:45pm to 3:00 p.m., at an undisclosed location.

Santa Ana DUI Checkpoint

The Santa Ana Police Department DUI checkpoint starts tonight, July 22, 2016, at 9:30 p.m. and runs through 2:30 a.m. Saturday, in the 500 block of West Warner Avenue in the City of Santa Ana. (Note that the press release linked says that the Santa Ana police are “STEPING” up law enforcement in Santa Ana for DUI checkpoints.

We have written about and noted how DUI Checkpoints don’t work.  They are not effective at anything but spending grant money, but since all the funding from the State and Federal government rewards DUI checkpoints, instead of the more effective Saturation Patrols, the DUI checkpoints continue.

Are DUI Checkpoints legal?  Yes, as long as they adhere to certain legal requirements.  The Ingersoll decision requires that there be advance notice and a plan that is non discriminatory in checking for persons that might be driving under the influence.

If you’re interested in what happens once convicted of a DUI, whether in an Orange County DUI Checkpoints or otherwise, find out how much a first time DUI can cost.

Podcasts by and for Lawyers

Podcasts by and for Lawyers

Orange County DUI Attorney Robert Miller was one of the first persons to be interviewed on the Lawpreneur podcast.  A podcast started by Orange County attorney and entrepreneur Miranda McCroskey, our Orange County DUI Law Firm was proud to be featured on the podcast, which is one of a growing number of podcasts by and for lawyers.

You can listen to the entire podcast segment here:

http://lawpreneurradio.com/robert-miller/

Miranda McCroskey is both a friend, and a fellow lawyer with her own firm, and decided to start her own podcast, in order to show other attorneys how to hang out their shingle and start their own firm.

Other podcasts have interviewed lawyers from our firm, including the Put It Together Podcast, featuring Daniel Garza, and the Laguna Health Podcast, with Kristy Mills.

Legal podcasts have an important role in the world of law, even if most of them focus on other attorneys, and not clients.  There have been many DUI podcasts started, for clients, but most all of them are out of business.  DUI is technical, and most clients aren’t interested in a weekly (more or less) discussion of the boring topics of scientific testing, legal challenges or case law in the subject.

However, legal podcasts that are also good at storytelling, like the excellent “Serial“, which was a podcasting phenomenon, are well listened to.  Sarah Koenig, a former producer of radio show “This American Life,” created Serial, and told a compelling story by exploring the legal system from different perspectives, interviewing key players, including convicted murderer Adnan Syed and the director of The Innocence Project, and taking excerpts from the trial and police interrogations.  The way the podcast handled legal issues even received kudos from law professors and legal commentators.

As of this writing in 2016, Mr. Syed has been granted a motion for a new trial, in part, due to pro bono criminal defense lawyers taking up the cause and filing a motion after publicity brought the case to the public’s attention.

Although lawyers often say they do not have enough extra time for podcasts, a podcast can be listened to at the gym, while on a walk, or while driving, which makes them very convenient.

A list of excellent legal podcasts appears on another legal productivity website, and last year a lawyer noted that legal podcasts, like all podcasts, went through unprecedented growth from 2005 to 2008, and as of last year, seem to be in a renaissance of growth again.  Who knows what the future will bring for additional podcasts by and for lawyers?