The first issue deals with whether or not law enforcement had 1) Reasonable suspicion to believe that a vehicle code violation had occurred; and 2) Probable cause to arrest one for driving under the influence. This also falls under the purview of the Fourth Amendment to the United States Constitution for one to be free from unlawful searches, seizures and detentions. Law enforcement cannot arbitrarily stop a motor vehicle. In order to effectuate a lawful traffic stop of a vehicle, law enforcement must have objective, specific and articulable facts that a vehicle code violation has occurred. If there is no reason to stop then there is no lawful arrest.
Most law enforcement officer’s state that upon contacting the driver of a vehicle, they smell the odor of alcohol, red, watery eyes, and slurred speech. Officers are taught to mark down these signs in order to detain a driver and conduct a DUI investigation. Officers then turn a simple traffic stop into a full blown DUI investigation. They ask drivers questions and have them perform a series of Field Sobriety Tests (FST’s) under the guise of further assisting them to determine whether one is okay to drive. THESE TESTS ARE NOT PASS OR FAIL!
It is solely in the discretion of the officer whether or not he/she believes one is impaired for purposes of driving. Some officers are not performing these tests in conformity with National Highway Traffic Safety Administration (NHTSA) standards and thus are not administering valid tests. If they are not administering valid tests, yet are basing their decision to arrest someone for suspicion of DUI, then they lack the Probable Cause necessary to effectuate a lawful arrest.
After one is lawfully arrested for DUI they should be given the choice to take a chemical blood, breath or urine (in drug cases only) test to determine, if any, the amount of alcohol or drugs in their system. Under Implied Consent laws, these tests are mandatory after being arrested for suspicion of DUI. If law enforcement does not give one a choice of tests and an available alternative exists, there could be an issue. Once the test is complete and shows the presence of drugs and/or a BAC of .08% or more, one must show, by way of affirmative evidence, that the test was inaccurate or that they were under a .08% BAC at the time of driving.
Not only do chemical tests have to conform with Title 17 California Codes and Regulations, but they must be:
In proper working order (Calibrated, maintained and checked for accuracy);
Properly administered; AND
Administered by a competent and qualified operator.
There are many procedures in place in order to ensure that the test for one’s BAC is reliable and accurate. If these procedures are not followed it could mean that the test is inaccurate and/or unreliable as a measurement of one’s true BAC or drug content.
Most chemical tests are conducted at some point after the driving occurred, thus ones BAC or drug content is likely going to be different at the time of the test than it was at the time of driving. That is why there are multiple ways to combat these tests and show that, in fact, you were not over the legal limit at the time of driving.
If DMV upholds the suspension against your license, a four month suspension will go into effect on a first time offense. The only way to keep one’s privilege to drive is to win the DMV APS hearing and win your court case; or to obtain a Not Guilty ruling in court on the charge of driving with a .08% or more BAC without being convicted for a DUI.