Michael Antonovich Antelope Valley Courthouse
Michelle E. DeCasas
Judge
UCLA School of Law
Clara Shortridge Foltz Criminal Justice Center
Jana M. Seng
Judge
University of Washington School of Law
The object of this article and self-study test is to discuss
evidentiary issues that are common in Driving Under the Influence (DUI) trials.
Readers will learn about the admissibility of statements made by a defendant;
field sobriety tests (FSTs); breath test results; and blood draws (Part 2 of
the article will focus on the implied consent law, refusal to provide tests,
permissive inference instructions, partition ratios, DUI drug offenses and
enhancements).
Statements by the defendant
Pre-arrest
Custody: "If a motorist who has been detained pursuant to
a traffic stop thereafter is subjected to treatment that renders him 'in
custody' for practical purposes, he will be entitled to the full panoply of
protections prescribed by Miranda." (Berkemer v. McCarty, 468
U.S. 420, 440.)
Physical v. Testimonial evidence: Slurring of speech
revealed by a DUI suspect's responses to an officer's direct questions was held
to be admissible despite the evidence's incriminating nature because the
slurred speech was a physical characteristic, not a testimonial communication.
(Pennsylvania v. Muniz, 496 U.S. 582, 590-592 (1990).) This is
because the evidentiary value of the observation rests in how the
communication was made, not its content. (People v. Bejasa, 205
Cal.App.4th 26, 43 (2012).) The Fifth Amendment right against
self-incrimination does not protect a suspect from being compelled by the State
to produce "real or physical evidence." (Muniz, supra, 496 U.S.
at p. 589.)
Pre-FST questions: A routine traffic stop, although a
detention, is not tantamount to a formal arrest, and, therefore, questions
asked during such detentions do not constitute a custodial interrogation
requiring Miranda warnings. The Supreme Court has characterized routine
traffic stops as similar to Terry stops, which
permit police to briefly question individuals about whom the police entertain a
reasonable suspicion of criminal activity that falls short of probable cause.
In essence, an officer may ask the detainee a moderate number of questions to
determine his or her identity and to try to obtain information confirming or
dispelling the officer's suspicions. (Berkemer, supra, 468 U.S. at pp.
439-440.) However, the detention and questions posed by the officer must be
reasonably related in scope to the justification for their initiation. (Id.
at p. 439.)
FST administration: An officer's dialogue concerning FSTs
that consists primarily of carefully scripted instructions as to how the tests
are to be performed are not likely to be perceived as calling for any verbal
response (except for requests to count) and are therefore not "words or
actions" constituting custodial interrogation. (Muniz, supra, 496
U.S. at p. 603, fn. 17.)
A suspect's statements made at a police station about her
perceived inability to perform FSTs, after the officer had brought the suspect
to the station to perform the tests following her uncooperative behavior on
roadway, were not testimonial and not subject to privilege against
self-incrimination. (People v. Cooper, 37 Cal.App.5th 642, 651-652
(2019).)
Evidence obtained by an officer while observing the suspect
perform the simple physical exercises required in a field sobriety test did not
fall within the protection of the Fifth Amendment privilege against
self-incrimination. The suspect was not entitled to consult with an attorney
before determining whether to submit to field sobriety tests. (Whalen v.
Municipal Court of Alhambra Judicial District, 274 Cal.App.2d 809,
812 (1969).)
Post-arrest
Waiver: A valid waiver of Miranda rights may be
express or implied. A suspect's expressed willingness to answer questions after
acknowledging an understanding of their Miranda rights has itself been
held sufficient to constitute an implied waiver of such rights. (People v.
Sauceda-Contreras, 55 Cal.4th 203, 218-219 (2012).) The prosecution
bears the burden of establishing by a preponderance of the evidence that a
defendant's waiver was knowing, intelligent, and voluntary under the totality
of the circumstances, requiring an analysis of both the defendant's state of
mind and circumstances surrounding the questioning. (People v. Leon, 8
Cal.5th 831, 843 (2020).)
Invocation of privilege: A DUI suspect, after arrest, but
before Miranda warnings, must make a timely and unambiguous assertion of
the Fifth Amendment privilege against self-incrimination in
order to benefit from it. (People v. Tom, 59 Cal.4th 1210,
1215 (2014).)
Booking questions: Routine booking questions and answers,
such as the defendant's height, weight, and eye color are not protected under Miranda.
(Muniz, supra, 496 U.S. at p. 601.)
Romberg Test: When defendant is administered the Romberg
test after they are placed in custody, Miranda warnings are
required before defendant submits to the Romberg test and communicates the
results to the police. (Bejasa, supra, 205 Cal.App.4th at p. 44.)
Chemical Test: A police inquiry to a suspect as to
whether they will submit to a chemical test is not an "interrogation" within
the meaning of Miranda. Moreover, the refusal to take a blood-alcohol
test, after a police officer has lawfully requested it, is not an act coerced
by the officer, and is thus not protected by the privilege against
self-incrimination. (South Dakota v. Neville, 459 U.S. 553, 564 (1983).)
FSTs
Romberg Test: "The Romberg test evaluates an individual's
internal clock by asking the individual to estimate the passing of thirty
seconds while standing with his eyes closed and his head tilted back. It is
within the acceptable margin of error for an individual to take between twenty
and forty seconds to estimate the passing of thirty seconds." (Ramirez v.
City of Buena Park, 560 F.3d 1012, 1018 (9th Cir. 2009).)
Horizonal Gaze Nystagmus Test (HGN): "Nystagmus is an
involuntary rapid movement of the eyeball, which may be horizonal, vertical, or
rotatory. [Citation.] An inability of the eyes to maintain visual fixation as
they are turned from side to side (in other words, jerking or bouncing) is known
as horizontal gaze nystagmus, or HGN." (People v. Ojeda, 225
Cal.App.3d 404, 406 (1990).) HGN test involves the observation of the
involuntary jerking of a suspect's eyeball induced by the ingestion of alcohol.
(People v. Leahy, 8 Cal.4th 587, 606 (1994).)
HGN testing is generally accepted in the relevant scientific
community as a useful tool when combined with other tests and observations for
reaching an opinion as to whether a defendant was intoxicated. (People v.
Joehnk, 35 Cal.App.4th 1488, 1508-1509 (1995).)
"Although there is no claim that HGN testing alone can determine
whether a suspect is under the influence of alcohol (nor determine a
blood-alcohol level), this testing is part of an officer's total observations
of a suspect. This is one basis for an officer's opinion concerning
intoxication." (People v. Randolph, 28 Cal.App.5th 602, 612 (2018).)
An officer, with adequate training and experience in performing
HGN tests, may testify as to the significance of a defendant's performance on
such test without the need for additional expert testimony, though driver may
challenge that evaluation with expert testimony of their own. (Randolph,
supra, 28 Cal.App.5th at pp. 612, 615.)
Without a showing of scientific expertise, a police officer is
not qualified to make a numerical correlation between HGN and blood alcohol
level. (Ojeda, supra, 225 Cal.App.3d at p. 409.)
Officers may not testify as lay witnesses and give their opinion
of blood alcohol levels based on HGN test results. (People v. Loomis,
156 Cal.App.3d Supp 1, 5 (1984).)
Refusal to submit to FSTs: Evidence of a refusal to
submit to a standard FST is admissible as consciousness of guilt. (People v.
Jackson, 189 Cal.App.4th 1461, 1469 (2010); Marvin v. Department
of Motor Vehicles, 161 Cal.App.3d 717, 719-720 (1984).) But that
general principle does not apply to evidence of a person's refusal to submit to
a preliminary alcohol screening (PAS) test. (Jackson, supra, 189
Cal.App.4th at p. 1469.)
Admissibility of breath test results
Title 17: Title 17, §§ 1215 to 1222.1, of the California
Code of Regulations, governs the operation of forensic alcohol laboratories and
collection of evidence. (Davenport v. Department of Motor Vehicles, 6
Cal.App.4th 133, 142 (1992).)
Fifteen-minute period requirement: Officers must observe
suspects for 15 minutes before administering chemical breath tests. (Cal. Code Regs.,
tit. 17, § 1221.1 ["The breath sample shall be collected only after fifteen
continuous minutes during which time the subject must not have ingested
alcoholic beverages or other fluids, regurgitated, vomited, eaten, or
smoked."].)
The 15-minute period does not require direct and unbroken eye
contact; rather, officer (or officers) must remain present with the subject and
be able to use all their senses (sight, smell, sound) to determine compliance.
(Manriquez v. Gourley, 105 Cal.App.4th 1227, 1235-1236 (2003)
[officer remained with suspect while suspect was confined to back of patrol car
and the officer drove to the police station, observing suspect through rearview
mirror and listening for proscribed acts].)
The observation may be made by two or more observers acting in
succession. (Taxara v. Gutierrez, 114 Cal.App.4th 945, 950 (2003).)
Results of a PAS test administered after 14 minutes of
observation (not 15) are not rendered inadmissible, but the deficiency will go
to the weight of the evidence. (People v. Hallquist, 133
Cal.App.4th 291, 297 (2005); see People v. Williams, 28 Cal.4th
408, 416-417 (2002) [deficient tests may nonetheless be admitted if general
foundational requirements are met].)
Breath-testing machine: Defendant may challenge that the particular machine used to test his or her sample
malfunctioned or was improperly calibrated or employed. However, a defendant
cannot challenge the "fundamental reliability of federally approved, properly
calibrated and employed breath-testing machines" as determined by the
Legislature. (People v. Vangelder, 58 Cal.4th 1, 39 (2013).)
PAS Test: "A PAS device is a breath-testing instrument
used to determine either the presence or concentration of alcohol in a person's
blood. Such device may be used by police, but is not required, in order to make a preliminary determination of sobriety
prior to arrest." (People v. Bury, 41 Cal.App.4th 1194, 1198 (1996).)
"A preliminary alcohol screening test that indicates the presence or
concentration of alcohol based on a breath sample in order to establish
reasonable cause to believe the person was driving a vehicle in violation of
[Vehicle Code] Section 23140, 23152, or 23153 is a field sobriety test and may
be used by an officer as a further investigative tool." (VC § 23612(h).) Defendants
have a right to refuse a PAS test under VC § 23612(i), and evidence of a
defendant's refusal to submit to a PAS test is not admissible. (Jackson,
supra, 189 Cal.App.4th at p. 1469.)
A person's obligation to submit to a blood, breath, or urine
test, as required by VC § 23612, is not satisfied by the person submitting to a
PAS test. (VC § 23612(i).)
Admissibility: PAS breath test results are admissible
upon a showing of either compliance with the regulations set forth in Title 17
or the foundational elements described in People v. Adams, 59
Cal.App.3d 559, 561 (1976), which include (1) properly functioning equipment,
(2) a properly administered test, and (3) a qualified operator. (Williams,
supra, 28 Cal.4th at p. 417.) These are two distinct and independent means
to support the admission of blood alcohol test results. (Id. at p. 416.)
Blood draws
The Fourth Amendment: "Reasonableness" standard A blood
draw is a search for Fourth Amendment purposes. The means and procedures
employed in taking blood must therefore respect relevant Fourth Amendment
standards of reasonableness. (Birchfield v. North Dakota, 579
U.S. 438, 455 (2016); see Schmerber v. California, 384 U.S. 757,
768 (1966).)
Blood draws were constitutionally reasonable where defendants
consented under implied consent law, blood draws were performed by a person a
police officer believed to be a trained phlebotomist or blood technician, the
defendants did not exhibit any signs of pain or discomfort, and the blood draws
were conducted in a sterile and clean manner. (People v. Cuevas, 218
Cal.App.4th 1278, 1286 (2013).)
Burden of proof: The prosecution has the burden of
proof to show that blood was drawn in a medically approved manner. (People
v. Esayian, 112 Cal.App.4th 1031, 1037 (2003).) Where the
circumstances of a blood draw are typical and routine, the defendant has the
burden of proof to show that the blood draw was not drawn in a reasonable
manner. (People v. Fish, 29 Cal.App.5th 462, 464 (2018).)
Officer testimony: Testimony of police officer who
observed blood draw may be properly considered in evaluating whether that blood
draw was conducted in a constitutionally reasonable manner. Evidence of the
manner of how blood was drawn need not come from the individual who performed
it or from some other expert witness. (Cuevas, supra, 218
Cal.App.4th at pp. 1282, 1285.)
VC § 23158(a) requirement: Only a licensed
physician/surgeon, registered nurse, licensed vocational nurse, duly licensed
clinical laboratory scientist or clinical laboratory bioanalyst, a "certified
phlebotomy technician," certain unlicensed laboratory personnel, or certified
paramedic acting at the request of a peace officer may withdraw blood for the
purpose of determining the alcoholic content therein.
Unqualified phlebotomist: Blood draw by phlebotomist who
was not fully qualified to draw blood under state law did not violate Fourth
Amendment or require the exclusion of blood test results under the California
or U.S. Constitution. (Esayian, supra, 112 Cal.App.4th at p.
1039; People v. McHugh, 119 Cal.App.4th 202, 213-214 (2004); People
v. Mateljan, 129 Cal.App.4th 367, 370 (2005).)
No specific location for blood draw required: There is no
categorical rule demanding that blood draws occur in hospital or medical
facility. Rather, California courts consider the overall reasonableness of the
blood draw to determining whether the test deviates so far from the medical
practices found to be reasonable in Schmerber as to render the seizure
constitutionally impermissible. (People v. Harris, 234
Cal.App.4th 671, 694 (2015); People v. Ford, 4 Cal.App.4th 32,
37-38 (1992).)
Hospital: Blood test was performed in "reasonable manner"
when taken by a physician in a hospital environment according to accepted
medical practices. (Schmerber, supra, 384 U.S. at pp. 771-772.)
Police station: Blood draw conducted in jail was
reasonable because the location was not unsafe or unsanitary such that it
subjected defendant to "'unjustified element of personal risk of infection or
pain.'" (Ford, supra, 4 Cal.App.4th at pp. 37-38, quoting Schmerber,
supra, 384 U.S. at p. 772; Harris, supra, 234 Cal.App.4th
at pp. 694-695.)