California will enact a statewide ignition interlock device program for all driving under the influence convictions starting at the beginning of 2019. The state has been running a pilot IID program since 2010 in Alameda, Los Angeles, Sacramento, and Tulare counties. Courts in the rest of the state have issued IIDs as part of DUI sentencing on a case-by-case basis. The new law will make IIDs mandatory for most convictions. IIDs are costly and sometimes troublesome for users but may be preferable to having a restricted or suspended driver’s license.

What is an IID?

An ignition interlock device is an alcohol breath tester that is installed inside your vehicle. You are responsible for at least part of the cost of having the device installed and maintenance fees. With the device, you must provide an alcohol-free breath sample in order to start the vehicle and will be required to provide additional breath samples:

• 10 to 15 minutes after you start driving; and
• Every 45 minutes after that.

You will have about six minutes to provide a breath sample when you receive an alert while driving. The device will not shut down your vehicle if you fail a breath test while driving, but it will notify the court of the failed test. Failing a test, attempting to tamper with the device, or having someone take the test for you can result in the suspension of your driving privileges.

The California Highway Patrol encourages civilians to report drivers that they suspect may be under the influence of alcohol or drugs. For instance, police recently arrested a Petaluma man for suspicion of DUI based on a tip from a civilian who saw the man allegedly swerving all over the road before stopping at a restaurant to have an alcoholic drink. The tip gave police cause to question the man and conduct sobriety tests, which allegedly showed that the man had a blood alcohol concentration that was three times the legal limit. DUI defense attorneys debate prosecutors about when a civilian tip creates enough reasonable suspicion to conduct a DUI stop.

Anonymous Tips

A DUI arrest may have been unlawful if police stopped a driver based solely on a tip from an unreliable source. Citizens who identify themselves to the police are more likely to be reliable because police assume that a person who has given his or her name is unlikely to make false accusations. Courts have ruled that anonymous tips can also create reasonable suspicion for a DUI stop. The California Supreme Court established a four-part test to determine whether an anonymous tip can justify a DUI stop:

• The caller must have witnessed the alleged crime;
• The caller must be able to describe the dangerous driving behavior and the appearance of the vehicle;
• The anonymous caller must sound reasonably credible; and
• The police officer must reasonably conclude that he or she is stopping the same vehicle that the caller described.

Defense Strategies

A police officer did not have reasonable suspicion to stop you for DUI if the caller was not credible and the officer did not witness any suspicious behavior. You can directly question the credibility of the caller if you know his or her name. If the tip was anonymous, you may still be able to identify the caller if the 911 call center had caller ID. You should also obtain a recording of the call to determine whether the information given was accurate and detailed enough to create reasonable suspicion. Evidence of your alleged DUI is inadmissible in court if the officer was not justified in stopping you.

Driving under the influence by itself has potentially serious penalties if you are convicted. Having a child with you in your vehicle at the time of your alleged DUI incident will aggravate the charge and the penalty. You are liable for the safety of any passengers, but prosecutors may charge you with child endangerment if they believe that you put a child at risk by driving impaired. Because it was likely your child in the vehicle, you have both your freedom and your parental rights at stake during your case.

DUI with Child

California law defines a child in a DUI case as someone who is younger than 14. The child passenger did not need to be in danger for prosecutors to charge you with DUI with a child. If the court rules that you were guilty of DUI, the child’s presence in the vehicle is enough to prove the aggravated DUI charge. A DUI with a child conviction includes mandatory jail time. How long you must stay in jail depends on whether you have any previous DUI convictions on your record. You would be sentenced to:

• 48 hours in jail if it is your first DUI;
• 10 days in jail if it is your second DUI in 10 years;
• 30 days in jail if it is your third DUI in 10 years; and
• 90 days in jail if it is your fourth DUI in 10 years.

Two days in jail is less than the maximum jail sentence you can receive for a first-time DUI conviction without any aggravating factors. However, first-time DUI offenders can receive probation instead of jail time, while DUI with a child guarantees you time in jail.

The driving under the influence of drugs evaluation process is increasingly important in California because of the recent legalization of recreational marijuana. Most California Highway Patrol officers have received training to identify signs of drug-related impairment, but fewer officers are certified to recognize which drug may be impairing the driver. Being accused of using an illegal drug may have different consequences than being accused of using marijuana. Many law enforcement organizations follow a 12-step drug recognition process that the International Association of Chiefs of Police endorses:

1. Breath Alcohol Test: The arresting officer must first determine whether the suspect is under the influence of alcohol. The officer can request a drug recognition evaluation if the breath test is negative but the officer believes the suspect is impaired.
2. Interviewing the Arresting Officer: A drug recognition expert (DRE) starts his or her evaluation process by asking the arresting officer about the subject’s appearance and behavior.
3. Preliminary Examination: The DRE examines the suspect to determine whether factors other than drugs could be affecting the suspect’s condition and if the suspect needs immediate medical attention.
4. Eye Test: The DRE administers the horizontal gaze nystagmus and vertical gaze nystagmus tests.
5. Divided Attention Tests: The DRE conducts several field tests to evaluate the suspect's balance and ability to follow multiple directions at once.
6. Vital Signs: The DRE checks the suspect’s blood pressure, temperature, and pulse.
7. Dark Room Examinations: The DRE uses various lighting conditions to determine whether the suspect’s pupils are dilated or constricted.
8. Muscle Tone Check: The DRE checks the suspect’s muscles to see if they have become rigid or flaccid.
9. Check for Injection Sites: The DRE looks for any marks on the suspect’s body that may indicate the injection of a drug.
10. Suspect Interview: The DRE asks the suspect whether he or she has used drugs and details regarding the drug use.
11. Conclusion: The DRE decides whether the evidence suggests that the suspect was impaired by drugs and attempts to identify the drug that is responsible.
12. Toxicology: Chemical test results will later confirm whether the DRE’s evaluation was accurate.

Responding to Drug Evaluation

Most of the steps in the drug recognition evaluation process are subjective tests. Factors other than drug use can explain the symptoms that the DRE is looking for. Even the presence of a drug in your body does not prove that you were impaired. Refusing a drug recognition evaluation is in your best interest, though it may result in further penalties. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can protect you against DUI charges related to drugs or alcohol. To schedule a free consultation, call 415-729-7300.

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The name “field sobriety test” makes these exercises sound more official and clinical than they actually are. FSTs help police officers guess whether a driver may be impaired by using subjective exercises, such as the horizontal gaze nystagmus, walk-and-turn exercise, and one-leg stand. An experienced criminal defense attorney has many ways to refute the results of an FST if the prosecution tries to use them as evidence in a driving under the influence case. The defenses center around the many flaws with FSTs:

1. FSTs Are Naturally Subjective: The accuracy of a test depends on a consistent application of the test and measurable results. Officers use FSTs as suggested exercises to help make judgments. They have discretion in the ways they administer FSTs and can draw different conclusions from the same results, depending on their experience and training. FSTs are not meant to provide empirical evidence of a person’s intoxication.
2. The Subject Does Not Have a Baseline Result for the FST: An officer conducting an FST is looking for universal symptoms that suggest impairment. However, the officer is assuming how the subject would perform on the test under normal circumstances. A person’s normal physical condition will affect his or her ability to walk straight or maintain his or her balance.
3. Many Factors Can Affect an FST: Subjects do not perform an FST in a controlled environment that allows for unbiased results. The levelness of the ground and the time of the day can both affect how someone performs. A subject may have more difficulty maintaining his or her balance on a sloped surface or seeing where he or she is walking when it is dark. The subject is also likely to be tired because most DUI stops occur at night.
4. The Subject Is Feeling Stressed: An officer may misinterpret confusion or mistakes during an FST as signs of impairment by the driver. The subject is likely nervous because of the traffic stop, even if he or she is not under the influence of an intoxicating substance. Stress distracts people when they are listening to instructions and can cause them to make mistakes that they normally would not make.

Dealing with FST Results

You should not agree to take an FST, and police cannot require you submit to one. You would risk providing evidence for a DUI case against you. An officer may choose to arrest you on suspicion of DUI if you refuse an FST, but the prosecution must provide other evidence of the offense. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can contest your DUI charges when the prosecution lacks credible evidence. Schedule a free consultation by calling 415-729-7300.

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