Need Advise

[Gibson]

Hi again,
Just thumb through the officers arrest report..., here are some highlights. Vehicle pulled over at 19:23, Arrest was made at 20:00, blood taken at 20:52.
On Observation / Physical Objective Symptoms:
Exiting Vehicle=Stable, Walking=Stable, Eyes=Watery, Pupils=Not Marked,Nystagmus=Horizontal+Lack of smooth pursuit, Face=Normal, Breath Order=None, Unusal Actions=None, Speech=Soft, Attitude=Calm+Confused, Wear=Contacts, Clothing=Orderly, Weather=Rain, Road Conditions=Wet(Slightly), Open Container=None.
Investigation Interview: Location=Feild, Conducter=English, Sick/Injured =1 yr old Lft Foot Reconstruction Surgery+Sprained Rt Quad+Lft eye lens serface scratch / ulcer due to contact lens, Drugs Taken=IBprofin+Eye Drop Meds+Flexril (IB profin and Flexeral taken at 2pm), Dr's orders=yes, Been Drinking=No, Diabetic=No, Feel effects of drugs/alcohole=No, Food Eaten=Did'nt, Defects with car=No.
Narrative: In summation, Officer responding to dui call, observed vehicle, vehicle instructed to stop with vehicle stopping in #2 lane(2lane road), futher instructed vehicle to pull to curb at which point vehicle struck curb (while) pulling over to stop.
Feild Sobriety Test: Location=Sidewalk, Lighting Conditions=Darkness, Ability to follow Instruction=Not marked, Footwear=boots, Romberg=Failed Sways side to side+Sways frt to bak+Seperates feet, Internal Clock=21, Walk and Turn=Cant keep balance x3, Starts to soon=x1, Failed all walking test, Failed all One leg test, Finger To Nose=Failed Returns hand to side+Finger hovers face+Uses wrong hand+Loses Balance+Sways.
Other Comments: Eyes lids futtered when closed. Objective Symtoms of Intoxication= Water Eyes+HGN, Lack of Smooth Pursuit. Also, D/L Status=Valid but D.R.E. not checked.
Opinion and Conclusions: Based on Physical Objective Symtoms+FST, the drive was impaired.
Just waitning for the blood test results..., so what do you think?

 

[HighwayMan]

Alot of what I read there say to me "impaired driver".

I would say that there was certainly probable cause for the arrest based on the facts as articulated in the report.

 

[CdwJava]

On the face of it, this certainly seems to indicate impairment to me! Starting with the yielding in the roadway and continuing to the FSTs.

There is insufficient info to determine specific drug type, however, so the officer conducted an alcohol FST for general impairment, and not a specific DRE/DAR evaluation to determine drug use.

Probable cause for the arrest seems clearly present.

 

[Gibson]

Hi, here are some explanations of how and why she did poorly on the FST and Observation.
Some of her failures during (item # 1) walking heel to toe, standing on one
leg and swaying, (item # 2) Nystagmus, eyelid flutter" "Lack of smooth pursuit", "watery eyes" and (item #3)Officers Observation, are possibly attributed to medical conditions, weather, and anxiety.
Item #1 she believes this failure is attributed to her reconstructive foot surgery (2 years ago). The whole foot from toes to arch was wired / screws back into shape. Also, during the FTS, it was cold, rainy, and the pavement was wet. The cold and dampness also played havoc on the tiny bones located in the foot.(ever have a broken finger that acts up during cold / dampness and you'll know what she means). She has contact the surgeon and is obtaining a letter explaining her foot condition, surgery, and physical therapy.
Item #2, she thinks that the ulcer in her eye, hard contact lens, and rainy weather might have caused "eyelid flutter" "Lack of smooth pursuit" "watery eyes", and Nystagmus. She is having the Doctor write a statement regarding her ulcerated eye condition and treatment. Since the weather was rainy, it's also possible that the weather could have caused her eyes to mimic "watery eyes". Additionally, she did a web searches and it seems that cigarettes and coffee can cause "Lack of smooth pursuit" and Nystagmusas well (not sure of this but its on the web).
Item #3, she folded under pressure. That is, she was overwhelmed by the totality of the situation (Lights, "Officer Presence", and "tone and manner" of the commands). Most people seeing a Black and White in their rear view mirror causes some type of a nervous reaction. As for her, I think her anxiety sky rocketed with the addition of lights, PA, and commands.
Hopefully, the blood test results will come back in her favor resulting in DA not pursuing this DUI case. Thank You again.

 

[CdwJava]

The problem is that there were multiple clues in multiple tests. One can come up with improbable explanations for any one or two clues, but for a host of them? The odds of that are rather high. Possible, but improbable.

She is fortunate that this was not a drug evaluation conducted by a DRE because if it had been, and the test resulted in no or low alcohol, and the drug screen came back negative, in some counties they would still pursue it because of the expertise of the evaluating officer. As it is, if her drug screen comes back negative and the BAC is below .05, the DA will likely not pursue it.

As a note, since the DOJ does not screen for all drugs, some drugs will slip through unless they are especially requested for testing by the contributing agency. That is the reason why someone can test negative for the standard panel and still be found guilty of DUI-Drugs.

 

[HighwayMan]

Hi, here are some explanations of how and why she did poorly on the FST and Observation.

That does not negate the fact that the officer had probable cause to arrest her based on his observations and tests.

If she has health issues then her attorney will have to convince a court/jury that they are all valid reasons for her poor performance.

 

[Gibson]

Just recieved the blood test results, the printout states that no opiates, amphetamines, barbiturates, cocaine, PCP, benzodiazpines, cannabinoids were detected in the submitted blood sample.

I was thinking that the results would show a percentage such as 0.00 but I guess this as good as it gets. I beleive that she will have a clear win at the DMV hearing but will the DA still charge my girlfriend with a DUI?

 

[CdwJava]

Just recieved the blood test results, the printout states that no opiates, amphetamines, barbiturates, cocaine, PCP, benzodiazpines, cannabinoids were detected in the submitted blood sample.

I was thinking that the results would show a percentage such as 0.00 but I guess this as good as it gets. I beleive that she will have a clear win at the DMV hearing but will the DA still charge my girlfriend with a DUI?

The drug screen does not test for alcohol. The test may have been submitted first for alcohol and then for drugs, or, maybe only for drugs.

A negative drug test does not preclude a prosecution as there are drugs that are not detected in the screen. But, it certainly makes prosecution more difficult ... though the officer's observations could carry the day if the officer is sufficiently trained and experienced. If I had to guess, I'd say that they might offer a plea to a lesser offense and if she rejects it, they might drop the matter entirely.

 

[Gibson]

Heres an update:
My girlfriend just had and was cleared of the DUI during the DMV hearing in El Segundo, CA. It was very easy and very striaght forward. The key to the clearing of the DUI charge was the clean blood test report. Now the next step is the county court proceeding which will happen in a few weeks. Hope this goes as smoothly. On a side note, It was rather interesting that we where the only people at the DMV without legal representation. Hope our luck lasts.

 

[Gibson]

Here is the results to the DUI Torrence Court proceedings:, we arived at the court and did not see my girlfriends name on the docket..., proceeded down to the court duty agent and we where instructed that the DUI actions where dropped due to the 0.00 blood test. We also aquired the paperwork for the arrest to be removed but this processes might take up to one year and 60 days. Anyway, I'm thankfull that the system worked and she was able have this misunderstanding cleared up by science facts(blood test).

 

[dave33]

Gibson, Have her file a complaint, for the officers "untrue report" or lack of training. At this rate they can just b.s. through the report and then test anyone they want. The officer was wrong,mistaken or he lied. Why can't he pay for his own mistake?

 

[davidmcbeth3]

That is why a statement made by an officer or anyone else should not be enough. Only my opinion.

That's what juries are for .. to make these decisions. Your GF could have huffed all night so chemical tests would not show this ..

What would you propose in this type of circumstance?

 

[dave33]

That's what juries are for .. to make these decisions. Your GF could have huffed all night so chemical tests would not show this ..

What would you propose in this type of circumstance?

No jury exists in this situation. The charges were dropped. I doubt any test will be altered from "huffing" all night.

I already mentioned my proposal, complaint.

 

[CdwJava]

A complaint would be the only practical route. The agency would then look into the matter, determine whether the officer's report reflects observations that are consistent with impairment by drugs or alcohol, and look at the overall picture.

Most often an incorrect evaluation is due to a lack of training of the officer and it might result in the officer having to attend a specialized SFST training. Or, there might have been the objective symptoms present but no positive test. As I mentioned, there are substances that are not tested in the standard drug screen, and as another mentioned some substances would not turn up at all after a very short period of time.