DUI Law FAQs

1. If a person admits using meth, does that equate to DUI of meth?
2. What is the "Romberg" Test and is it an accurate test?
3. Can the police investigate a person based on information received from an anonymous call?
4. Can I legally be stopped for flicking ashes out the window?
5. Are breath test results always an accurate measure of my BAC?

If a person admits using meth, does that equate to DUI of meth?

No! Recently, the California Court has held that evidence of the defendant simply using methamphetamine is insufficient to support a conviction for driving under the influence. The evidence must also show that the drug impaired the defendant's ability to drive. In this particular case, the defendant was stopped for failing to completely stop at a limit line. The investigating officers believed the defendant was under the influence of the methamphetamine and the defendant actually admitted recent use of methamphetamine and exhibited symptoms consistent with methamphetamine use which was confirmed by his urine test.

There was also evidence that methamphetamine can impair a person's judgment, focus, and psychomotor skills to make them an unsafe driver. However, in this case, there was no evidence that the defendant's use of methamphetamine actually impaired his driving ability on the night of the arrest. Although appellant failed to completely stop at the limit line, the prosecution toxicologist testified that this was a "common traffic violation" and is not sufficient to establish that a person is under the influence for driving purposes.

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What is the "Romberg" Test and is it an accurate test?

One of the most popular field sobriety tests is the Romberg Balance Test, which is often referred to as the "head tilt" test. Police officers will tell you that this is an accurate and reliable test to determine if a suspect is driving under the influence. Though it is one of the tests used by the National Highway Traffic Safety Administration (NHTSA), the Romberg Test is problematic at best.

The general instruction is to

1. Put your feet together
2. Keep your arms by your sides
3. Tilt your head slightly back
4. Close your eyes
5. Silently estimate 30 seconds.

There is never instruction given to stand still, don't move, and don't sway. The police officer grades the person taking the test on a pass/fail basis and includes consideration of various factors such as how accurately the suspect estimated 30 seconds, whether or not there was any amount of sway, and if so, how much, the person's ability to understand the test and assume the position correctly, whether the eyes were opened during the course of the test, whether the arms were kept by the side, etc.

One of the primary problems with this test is that it has no baseline of comparison because the police officer only looks at the person's performance with their eyes closed for a brief period of time. The police officer has no baseline to establish what would be a normal sway for that person. As such, the police officer cannot conclude that any noticeable sway is the result of intoxication or the result of other conditions and certainly can't determine whether or not that is a "normal sway" for that person with their eyes closed or open.

Further, this is a test that, either intentionally or inadvertently, was designed in a manner that results in a body position that lends itself to swaying. A person would have much better balance with their feet apart than they do with their feet together. Secondly, a person would be much steadier with their arms straight out from the sides, as opposed to them being rigidly kept at their sides. Finally, a person would have much better balance if their head was looking forward as opposed to being tilted slightly back and, without question, a person would have better balance if their eyes were open as opposed to being closed. A person would be hard-pressed to design a test that would cause more swaying the Romberg.

As to swaying, one of the interesting parts of the test is that what is always missing is the instruction by the police officer to "remain still and do not sway." By not receiving that instructive information, the person is prevented from exercising any effort to not sway yet the analysis of their performance is downgraded if they do sway. Finally, there are no scientific studies to date that establish a link between either the balance portion (not swaying) of the test or the time estimation part of the test.

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Can the police investigate a person based on information received from an anonymous call?

No! An anonymous tip is generally insufficient to justify a temporary detention for investigation by the police. The Fourth Amendment prohibits unreasonable searches and seizures by the police and this extends to brief investigatory stops of people or vehicles. Without anything more, an anonymous tip by a citizen is presumed to be unreliable. Fortunately, the police cannot rely on a mere hunch that criminal activity is occurring. However, after receiving an anonymous tip, if the police witness additional corroborating behavior that raises a reasonable suspicion of criminal activity, they may then make an investigatory stop of a person or vehicle.

In a recent case, the police received a tip about a person selling drugs but that information by itself was insufficient for the police to temporarily detain the suspect. However, once they arrived on the scene and saw the conduct that they believed, based on their training and experience, was a drug transaction (confirming the criminal conduct alleged in the anonymous telephone call) there was sufficient legal justification to make a temporary detention of the suspect.

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Can I legally be stopped for flicking ashes out the window?

Probably not. Although litter is something we all want to constantly avoid for obvious reasons, there is no specific state law that prohibits all forms of litter. VC §38320 and §23112 prevent the throwing of garbage from a vehicle but the ashes from a cigarette would not qualify under that law. Further, VC §23111 and H&S §3002 prohibit throwing cigarettes, cigars, matches, or any flaming or glowing substances from your car. Fortunately, your attorney should be able to establish through the filing of a Motion to Suppress that a cigarette ash does not qualify as either a cigarette or a lighted, flaming, or glowing substance.

In summary, if the officer exceeded his/her authority and stopped you for an act that does not constitute a crime, any and all evidence which he/she discovered as a result of the stopping of your car can and should be thrown out of court. This evidence includes the officer's observations of your behavior, the results of any field sobriety tests, the results of any blood or breath test taken at the police station, etc.

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Are breath test results always an accurate measure of my BAC?

No! Recent litigation has confirmed that DataMaster results routinely have variances of 20% with the actual BAC. The technology and design of the DataMaster, as with all evidentiary blood alcohol tests, are based on 1940-1960 technology and a misunderstanding of pulmonary physiology. This information assumes and applies the 2100 to 1 partition ratio to all individuals, assumes a constant partition ratio and involves the belief that the breath alcohol concentration plateaus at its maximum during the terminal phase of a breath sample to represent the alveolar air-blood partition ratio.

Since the 1970's, studies have demonstrated that the BAC increases during the terminal breath phase and the BAC comes primarily from the aqueous bronchial mucosa and little, if any, from deep lung alveolar air.

BAC is further influenced by the following:

• Breathing patterns
• Gastroesophageal reflux disease
• Elevated body temperature
• Work environment
• Blood constituents

We work closely with Drug Detection Laboratories, a highly regarded forensics lab working with lawyers throughout California to provide expert services for the highest quality defense of criminal cases.

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