DUI in CA the other night - Detailed Account. What should I do?

[myk7]

What is the name of your state? California. Sonoma County. City: Cotati



Traffic Stop December 22nd, Cotati, CA 1:10 AM - Michael Hayes Stevenson

This is a re-cap of the night I was arrested and charged with driving under the influence in Cotati, California at approximately 1:10AM on December 22, 2006

On this night I was to visit some friends in downtown Cotati. I have had a long week with school finals and the beginning of a brand new job in Sausalito. Each day had been from 6AM to 11PM and highly stressful, so it was to be a calm night ending at home for a good nights sleep. This particular night was a night with a moist ground but clear skies.

I had just left a friends house and local bar, Spanky's, in Cotati on Old Redwood Highway after spending time at the Yacht club (a bar in Cotati). At the yacht club, I had had about 2.75 beers. We left the Yacht club about 25 minutes after my last drink. We stayed at Spanky's for approximately 30 minutes. After, at Spanky's I had nothing to drink. At this point I was not drunk, nor was I buzzed. Please also keep in mind that I am a 210 lb individual. Under 3 light beers, although a misjudgment by myself to have driven later in the night as I had, does not compromise my physical dexterity. In fact, I had waited as long as I had just to be 100% positive that driving home would be a completely safe venture.

As I was driving down Old Redwood, I made a stop at the stop sign near Papa Murphy's Pizza and Zone Music. According to officer Yarzell it was an incomplete stop. However, I had seen the officers patrol car and made an even greater effort to come to a complete stop. Perhaps I didn't wait long enough in the opinion of the officer.

I pulled in to the Zone Music parking lot and showed the officer my drivers license and registration, at which point he asked if I had had anything to drink. Being the honest person that I am I had told him that I had had a drink or two earlier in the night but it had been a while since I had had a beverage. I was 100% cooperative and coherent. Officer Yarzell asked me to step out of the vehicle and I politely complied. His next question was if I had anything to eat in the recent hours. I told him what I had had for dinner which as a protein bar and a salad.

He then asked if I had anything in my mouth, to which I responded yes, that I had gum in my mouth. He told me to spit it out on the ground in front of his car. Then He asked me where I was. I told him Cotati next to Zone music. He asked me what time it was. I told him it was around 1:00 AM. It was 1:10 AM. He said that that was good.

The entire time I made an effort to be as courteous and personable as possible to the officer.

When out of the vehicle the officer informed me that he was to perform a series of field sobriety tests. He said that if I passed them, he would let me go with no problem. He pointed his flash light at the ground and told me stand where it was directed. I was told to place my hands on my sides with my feet straight together and to look at the officer. He told me that he was going to explain each test and that when I was ready to let him know and to perform the tests myself. I told him I understood and to go ahead.

The first test the officer had me perform was to follow his finger in front of my eyes while he shined a light in to them. I felt that I performed the test flawlessly even due to the fact that I have astigmatism and at night it makes it difficult for my eyes to focus.

For the next test the officer had me tilt my head back as far as I could and balance. I was then to raise my arms from my sides and touch them to the tip of my nose. I did so perfectly as possible for the situation, being it was late and I was tired from a long week. He had me do my right hand, then my left, then my right, then left, then left again. Each time my finger landed on my nose.

The next test the officer advised me to lift up either one of my legs and to balance on the other. I was to count by 10's to 90 I believe. I did so with my right foot in the air and the officer advised me to do it again with the other foot, this time with my leg higher than the first time. Again, I performed the test flawlessly.

Following this test, the officer told me that I was to perform the same test as the head tilted back except for the change that he wanted me to count back from 99 to 77. Again, test performed well.

Finally, I was to perform the universal sobriety test and walk in a completely straight line heel to toe. The officer pointed the flash light in a new direction to the left (south) of where we were standing (we were facing approximately NW in front of Zone Music towards Walgreens and the freeway.) I went to this new location and the officer pointed out a long crack in the pavement. He told me I was to walk straight ten steps on this crack, and then turn around and walk seven back. Each time counting the number out loud. When I was ready, I began and the very first step was slightly shaky as I was setting up my body to do the walk, and the 17 steps were flawless. I counted out loud as well.

At this point the officer told me that the following was COMPLETELY OPTIONAL and that I did not have to perform if I do not wish. He explained this point again and continued. He asked if I WOULD LIKE to perform a breathalyzer test. I asked him that if it was completely optional and made sure of this point. He said yes. I asked the officer that in that case, thinking that I had done the field sobriety tests well, that since it was only optional then if it would be better if an attorney was present if I were to perform such an act. I merely asked the officer. The officer told me that I had lost the right to an attorney and to place my hands behind my back and that I was under arrest. I told the officer that I was just ASKING and that I would take the test that he had just said was completely optional. He said that I lost the right to an attorney and my chance for the test and placed me in hand cuffs.

As soon as i mentioned the word attorney he placed me under arrest. I would like to know the officer's probable cause for placing me under arrest.

Clearly his explanation was not sufficient, being that he told me it was an option, didn't tell me why he was doing what he was doing, and that I had "lost my right to an attorney" just by asking if it would be a smart idea to have one in this situation.

At this point the officer told me to place my hands behind my back and that I was under arrest. No miranda rights were read. He put me in the back of his patrol car and told me to watch my head and I got in the tight squeezed back seat. He then went to my car and searched through it and grabbed my cell phone, my wallet, my ipod, and my keys. He then came over and told me I had two options; either take a blood test or a breathalyzer that night. I asked him which I should do and he said he can not advise it was up to me. He gave me a moment to think and came back. ***How was I to know which to choose? I wanted a more accurate reading because I know what I drank. He wouldn't tell me so with my naivety of the situation I chose breathalyzer, but I feel I should have possibly chosen the blood test.

Again, being the personable person that I am i attempted to talk to the officer and asked him why I was under arrest. He said that I failed the sobriety tests. I asked him which one. He said "All of them."

[myk7]

CONTINUED..

I would like to see the video of me performing the sobriety tests; I did extremely well. Unfortunately I think the police cars in this city aren't equipped with video. I'll find out tomorrow.

When we got to the station we pulled up to the metal garage part. We pulled in and the officer had me get out of the car and go in to the jail portion of the facility. I walked straight and then right in to a room with a chair and various equipment where the officer asked me a series of questions that he had on a piece of paper. We were to use a breathalyzer in a briefcase like container to test my BAC. Prior to this, however, the officer had me remove my jacket and shoes and other various personal belongings. I tried to have conversation with the officer, one of the questions I asked him was "whats your favorite part of the job?". His response; "Doing this."

Then, he was having trouble with the breathalyzer so after a while of messing with the unit he brought my to cell #1 in the back of the small building. I waited there for a good amount of time while assumably he was working on trying to get the breathalyzer machine fixed. Eventually he brought me back in to the room where he had me sit in the same chair once more. I sat down and he prepared the breathalyzer. Around this time I had burped a couple of times as it had been a long time since I had eaten any solid food. I wondered in my head if this would have any impact on the test but unintelligibly I didn't bring it up to the officer. He told me to take deep breaths and to blow as hard and as long as I could in to the machine. I did it once, and after that the machine had to count down from a number in the hundreds down to zero. At that point I was to blow again. After this he placed the breathalyzer in to the machine and it printed out a receipt of information on my blood alcohol level and my information. He instructed me to put on my shoes and walked me back to cell #1 as earlier. I inquired as to the levels of the breathalyzer and the officer's only response was a stare and the words; "you're drunk".

THE OFFICER DID NOT WATCH ME FOR 15 MINUTES PRIOR TO THE BREATHALYZER TEST TO ENSURE MY ELIGIBILITY, IE INGESTION OF FOOD, OR BELCHING. I DID IN FACT BELCH SLIGHTLY BEFORE THE TEST. AFTER THE BREATH TEST THE OFFICER ALSO DID NOT ADVISE ME THAT I HAD THE RIGHT TO TAKE A BLOOD OR URINE TEST IN ADDITION TO THE BREATH TEST TO ENSURE ACCURACY OR SO I COULD HAVE A SAMPLE COLLECTED FOR FUTURE TESTING. OBTAIN THE TIME OF THE PULL OVER TO THE TIME OF THE BREATHALYZER WITH THE RECEIPT. ALCOHOL TAKES UP TO AND OVER 3 HOURS TO COMPELTELY ABSORB IN TO THE BLOOD STREAM. THERE IS NOTHING TO SAY I WAS ABOVE THE LIMIT OF .08 AT THE TIME OF ARREST.

I stayed in the cell for a long period of time during which another person was brought in to the jail. He was placed in jail cell 4 across from where I was located. After an amount of time, another officer switched us between cells where I waited for the remainder of the night until I was picked up and taken home by my mother.

[CdwJava]

Originally Posted by myk7

As soon as i mentioned the word attorney he placed me under arrest. I would like to know the officer's probable cause for placing me under arrest.

Sure. Based upon his observations (your driving and your performance on the FSTs) he formed the opinion that you were driving under the influence of alcohol or drugs.

While you think you performed the tests "flawlessly", apparently you did not. The tests you describe are the standardized field sobriety tests as approved by NHTSA and as instructed to officers through CA and the nation ... with the exception of 17 steps for the "heel-to-toe test" - it's supposed to be 9 up and 9 back.

There are other things we look for when we do FSTs, not just falling down or missing a nose. There are two or more clues we look for with each test.

And, yes, the PBT in the field IS optional and he explained that to you. Apparently he felt that he had enough to make the arrest without it.

At this point the officer told me to place my hands behind my back and that I was under arrest. No Miranda rights were read.

Contrary to the impression given on TV and by NYPD, Miranda is only required when you are both in custody and being interrogated. Being arrested does not - by itself - invoke Miranda.

How was I to know which to choose? I wanted a more accurate reading because I know what I drank. He wouldn't tell me so with my naivety of the situation I chose breathalyzer, but I feel I should have possibly chosen the blood test.

The officer again did the right thing - he did not tell you what test to take. The choice is entirely yours and yours alone.

Again, being the personable person that I am i attempted to talk to the officer and asked him why I was under arrest. He said that I failed the sobriety tests. I asked him which one. He said "All of them."

Obviously he saw something in your performance that you did not.

I would like to see the video of me performing the sobriety tests; I did extremely well. Unfortunately I think the police cars in this city aren't equipped with video. I'll find out tomorrow.

Most agencies in CA are NOT equipped with video. Those that are tend to be cars assigned to DUI details in the first place.

We were to use a breathalyzer in a briefcase like container to test my BAC.

That sounds like the Draeger E-PAS: [url]http://ag.ca.gov/bfs/content/epas.htm[/url]

Prior to this, however, the officer had me remove my jacket and shoes and other various personal belongings.

Typical procedure.

Around this time I had burped a couple of times as it had been a long time since I had eaten any solid food. I wondered in my head if this would have any impact on the test but unintelligibly I didn't bring it up to the officer.

You can certainly mention it to your attorney, but the burping does not effect the E-PAS as it measures deep lung air and not mouth alcohol.

I did it once, and after that the machine had to count down from a number in the hundreds down to zero.

From 120 (seconds) to zero ... then it draws a couple of blanks and is clear for another test.

AFTER THE BREATH TEST THE OFFICER ALSO DID NOT ADVISE ME THAT I HAD THE RIGHT TO TAKE A BLOOD OR URINE TEST IN ADDITION TO THE BREATH TEST TO ENSURE ACCURACY OR SO I COULD HAVE A SAMPLE COLLECTED FOR FUTURE TESTING.

Bring that up to your attorney. It may or may not have an effect on the overall case. Oh, and it's BLOOD he has to offer - not urine.

OBTAIN THE TIME OF THE PULL OVER TO THE TIME OF THE BREATHALYZER WITH THE RECEIPT.

What does THAT statement mean?

ALCOHOL TAKES UP TO AND OVER 3 HOURS TO COMPELTELY ABSORB IN TO THE BLOOD STREAM.

It could ... but it generally doesn't.

THERE IS NOTHING TO SAY I WAS ABOVE THE LIMIT OF .08 AT THE TIME OF ARREST.

Okay then. If you were .08 or higher, then you're in bad shape.

What WAS your BAC?

- Carl

[BigMistakeFl]

At your weight, time elapsed, and having consumed 2.75 beers, your BAC would have been only slightly over 0.01. That would not be enough to be impaired. Have your lawyer check the machine's calibration history. If it's up to date and accurate, you drank more than you remember.

[CdwJava]

Given that the single most common response (nationwide) to the question: "How much have you had to drink?" is "Two", I usually presume that the admitted number of drinks on this site (and in the field) is in error.

One thing I forgot to ask the OP was if he had any medications or other drugs in his system at the time of the contact? He could have been impaired on something other than the alcohol. And many medications can have a synergistic reaction with alcohol thus compounding the effects.

- Carl

[myk7]

Thanks for the responses.

As far as my BAC goes, im not sure. When I asked the officer as he was walking me to my cell he shut the door, looked at me through the glass and said "you're drunk." Whatever the hell that means.

And yes, I had just under 3 beers.

I called the station today and they said I can come down and get a copy of my report for $20 and it will take a couple of days.

And no I wasn't on any medications. I was tired though, started a new job an hour away and had finals all the same week. Basically I was going from 6AM to 12PM each day, hence my night of not wanting to "party" with my friends and just making it a relaxing night. So much for that I guess huh.

Do you guys think I should even get a lawyer? Or should I wait until I get my report from the station?

For the poster who mentioned something about him not advising me I also had the right for a blood test, do you know exactly what the procedure is for that? Are they supposed to ask?

The reason I am worried is because he couldn't get the machine to work for SO long, that I feel there might have been something wrong with the reading.

Thanks again

Mike

[CdwJava]

Originally Posted by myk7

As far as my BAC goes, im not sure. When I asked the officer as he was walking me to my cell he shut the door, looked at me through the glass and said "you're drunk." Whatever the hell that means.

It could mean anything.

And yes, I had just under 3 beers.

Then you won't be at or over .08.

I called the station today and they said I can come down and get a copy of my report for $20 and it will take a couple of days.

Wow! That's rare! They are under no legal obligation to provide you with the report. Most agencies don't give it to you - only your attorney.

Do you guys think I should even get a lawyer? Or should I wait until I get my report from the station?

It is ALWAYS advisable to consult with an attorney. It may be that no charges will be filed by the DA ... but, it's better to have an attorney on the line than be caught flat-footed.

For the poster who mentioned something about him not advising me I also had the right for a blood test, do you know exactly what the procedure is for that? Are they supposed to ask?

Yes. They are supposed to provide you with what is called the Trombetta advisement. This includes the explanation that you can have a blood test taken to be tested at your expense later on. However, failure to do this is not a fatal error and will generally aid in the defense only if doubt can be cast on the breath test.

The reason I am worried is because he couldn't get the machine to work for SO long, that I feel there might have been something wrong with the reading.

Or, he had to enter the data manually. The buttons are very tiny - the info is entered on a PDA. So if your driver's license did not work and/or his EPAS Operator Card was not working right (or he did not have it on him) then it can take a while to get it working.

- Carl

[BigMistakeFl]

If you had under three beers in two hours, then your BAC will be under 0.02%, so that will be greatly in your favor. Fatigue has no bearing on the results. (Standard 12 ounce beers, standard % of alcohol) Remember, it's not the count of times the glass was filled (I have some very large glasses), it's the number of ounces and alcohol content. If the BAC comes out that you were over 0.08%, either you drank greater than 33 ounces of standard beer, or the breath machine is out of whack. And that does not happen often anymore. They take precautions to calibrate and test the machines.

I was not entitled to copies of the entire arrest packet, only the original citation. Only my lawyer was able to discover all the other evidence, including the BAC readout. See what they give you and then decide whether you wish to defend yourself with a lawyer.

[myk7]

Thanks again

I just went in to the police station and they denied my report. I know they don't have to give it to me, but they just told me the other day that I could come get it. Can't stand this.

They said that I could get my BAC # if i get a lawyer. But the readout is going to be the determining factor in getting one.

What's the deal with a public offender? How does that work?

I really appreciate you guys giving some insight through this turbulent time, thanks

Mike

[BigMistakeFl]

Public defender works only if you prove need. That means filling out financial affadavits and if you can afford to hire one, you don't get the freebie.

[SillyPuddy]

Based on the information you've provided, there is a myriad of problems with your arrest.

The first thing that stood out was that when you did the hold your foot out FST, the officer asked you to count to 90. Based on the amount of time it would take someone to count to 90, any person would most likely sway and stumble. Plus he had you do it on each foot which is not typical. If you're drunk, you would fail this test clearly with out the need to do it again on the other foot. The officer had decided he wanted an arrest, and he rigged the tests to give him "probable cause". Maybe it was the end of the month where police officers try to "close as much business" as possible to meet their sales (i.e. ticket and arrest) targets and qualify for bonuses.

You're not going to get a copy of the police report. This is because police officers use language in the reports to exagerate things and enhance the probability of a conviction and they don't want you to have a chance to review the report and see the discrepancies. It's pointless anyway because they'll just say you were drunk and don't know what happened. Anyway, there are bonuses tied to convictions all through the legal chain.

[garrula lingua]

There is NO pass or FAIL on FSTs.

The request is to do them 'as explained and demonstrated'.

They are simply divided-attention tasks given to allow the cop to judge how well the person can perform divided attention tasks.
FSTs are one, of several things, which combined with symptomology, driving etc., may cause the cop to form the opinion that the driver is impaired/under the influence.

Some swaying on those FSTs is expected.

Cops get a 'nose' for DUIs - they get a darn GOOD 'gut feeling' for who's impaired.

The percentage of those arrested who score .08, or well over .08, is a testament to the accuracy of the cops out there on patrol picking up impaired drivers.
Not many (though there are some) are under .08 (& they are released at the cop station, or the Prosecutor usually declines to file on them). [And when they suspect drugs and have blood drawn, they're, at least, 99% right).

Silly: c'mon.
Most patrol cops hate the paperwork & the court appearance, but they do their job.
They're not insane enough to want EXTRA work & liability & hassle, (just like the rest of us). They want to do their shift and go home to their families.
Many hate to testify at court, especially as DUIs are usually given to new/unseasoned Prosecutors.

There is no quota (especially on misdemeanors, Silly - that cop could give twenty speeding tickets in the time it takes to process the one DUI.)

[BigMistakeFl]

If you are pulled over for a traffic stop and admit when asked, that you have had a drink or two (as Carl stated, that line is often understated), I wonder if you would stand a chance of being released. I can't prove it, but I doubt you would be BAC tested, come out slightly under 0.08, and allowed to go on home and have a nice day. Once the decision is made to test the driver, the cop has likely already decided on the cause and to pursue the arrest and build the prosecution's case.

[myk7]

Originally Posted by SillyPuddy

Based on the information you've provided, there is a myriad of problems with your arrest.

The first thing that stood out was that when you did the hold your foot out FST, the officer asked you to count to 90.

You're not going to get a copy of the police report. This is because police officers use language in the reports to exagerate things and enhance the probability of a conviction and they don't want you to have a chance to review the report and see the discrepancies. It's pointless anyway because they'll just say you were drunk and don't know what happened. Anyway, there are bonuses tied to convictions all through the legal chain.

I didnt count to 90, I had to count to 90 by 10's.. so basically 9 seconds. And I am not sure why I had to do both feet either. But I am an avid athlete, and I didnt even sway or shake whatsoever while performing this "test"

Hopefully you guys can help me here on this question. I am scheduling my DMV hearing today, not sure when it will be but apparently there is a 30 day mandatory suspension where you can't drive.

Well, being a full time college student/worker I literally can not not drive for 30 days. Ill lose my job, and I wont be able to pay for this whole DUI! The loss of my job will be the loss of more than just that in my life- its the beginning of a career for me. My work is 50 miles from my home.

Also, being a full time student I can't miss 30 days of class as the school is definitely driving distance away.

In other words; as a full time student I am pretty broke. I cant afford to not be able to do anything for 30 days. I know the hearing doesn't discuss this, but I am so at lost for my next step that I don't know what do do.

I dont even know if i blew over a .08 Since the officer wouldnt tell me!!!

Initially he told me I was going to county Jail that night. But then later on he released me to a ride home, is that common occurence or is that just what happens with these things?

So thankful ive found these boards. Thanks for the help and advice thus far.

[BigMistakeFl]

You are in the same boat as all the rest of us who have had hard suspension. We too could not, not drive. I lost my job because of it. Others have had worse things happen, but the suspension is real and you are not likely to get out of it. It sucks to be arrested for DUI..... it's supposed to. That way we don't (hopefully) forget it and repeat the behavior. One day in our past, we should have sought alternative transportation, but we chose to drive impaired. We are punished for that. Imagine if you got a jail sentence instead? How would that affect your school and job?

My hard suspension in Florida was 90 days. That's almost forever, when you've been driving for as long as I have. I got in touch with my bike and got in really good shape. I also stopped trying to conceal my arrest and told several people who could actually help me. I rode my bike when I could, and hitched rides with friends when I needed to be in a car. I even got on a public bus a few times! Not pleasant, but do-able.

Keep getting to class, just don't drive there. It will be a major inconvenience, and can cost you friendships. It's cost many people their marriages and families.