Ventura DUI Stop and Arrest
The Ventura DUI Stop and Arrest refers to the two different kinds of arrest when an officer pulls you over: the DUI Investigatory Stop and the DUI Arrest. The following information is intended to shed light on the Driving Under the Influence Investigatory Stop, the Driving Under the Influence Arrest, and your Constitutional Rights in both contexts. This information is not intended to offer either a full analysis of the facts of your unique case or an opinion as to the legality of the stop or arrest in your case. We provide this information to help you better understand what happened in your case so far and to empower you as you go forward in the future. For a full analysis of your individual case and to better understand your rights, your defenses, and your legal system, please contact us at (805) 901-5043 for your free initial consultation.
Protecting Your 5th and 6th Amendment Rights
In cases where your constitutional rights are violated by law enforcement officers, what factors support a finding of “custody” and what actions by law enforcement amount to “interrogation” will be analyzed in light of the unique facts of each individual case and the case law in this area. Your important constitutional rights include your Fifth Amendment right to remain silent and not to respond to any questions the officers ask you and the your Sixth Amendment right to counsel. If you invoke your Fifth Amendment right to remain silent, it must be respected by the officers and all questioning must stop immediately. If you invoke your Sixth Amendment right to seek the advice of counsel before answering any of the officer’s questions, all questioning must cease immediately and shall not resume until such time as counsel is present to assist you.
Any statements made or evidence obtained in violation of your Fifth or Sixth Amendment rights will be excluded. Exclusion means that the prosecution will not be able to use that evidence against you in court. Exclusion of the evidence in your case is a powerful remedy used by the courts to rein in law enforcement and prevent officers from violating your individual rights. Exclusion of the evidence in your case will likely cause the state’s case against you to fall apart.
Your criminal defense attorney offers important protection against officer misconduct and violations of your constitutional rights by law enforcement. At the Law office of Jennifer Zide, we value your individual rights and aggressively protect your rights in the system. We are always available to discuss the unique facts of your individual case and answer any questions you might have about your rights, your defenses, and our legal system.
THE INVESTIGATORY STOP: BUILDING A CASE AGAINST YOU
In a Driving Under the Influence Investigatory Stop, the officer will either stop you based on the driving pattern he allegedly observes, or based on your violation of some traffic law, such as speeding or failure to signal. For a stop to be legal, an officer needs what is termed “reasonable suspicion” to stop someone. This “reasonable suspicion” must be based on specific and articulable facts that he can explain, not merely based on a hunch, a feeling, or a person’s appearance. In a DUI stop, this “reasonable suspicion” is often obtained through observing a driving pattern that leads the officer to suspect, based on specific and articulable facts, that the person may be either driving under the influence or driving with .08% or greater blood alcohol level. A stop can also be justified if an officer observes you committing a traffic infraction, such as speeding. Even in the case of a traffic infraction, the officer often uses his contact with you to attempt to make observations as to your condition or to gather information which can then be used to develop a driving under the influence case against you. Keep in mind that the officer has no obligation to obtain what is called exculpatory information in your case. Exculpatory information is information that would point to a defense or an innocent explanation for observations or conduct, such as a person having red watery eyes because they are tired or have allergies. The officer only has an obligation to obtain and develop information that would point to your guilt.
In a DUI stop, the officer often makes customary observations, such as a driver having red, watery eyes, slurred speech, and/or an odor of alcohol on their person. None of these observations, in and of themselves, means that a person is then driving either under the influence of alcohol, so that their ability to drive is actually impaired, or driving at .08 or greater blood level alcohol level. However, these observations will be used by the officer as part of a combination of factors to try to establish a sufficient legal basis to arrest you. The officer will then attempt to obtain information from you that can be used to try to show that you are either driving under the influence or driving with .08% or greater blood alcohol contain. Some of the customary questions may include inquiries as to how much you had to drink, when you last drink, when you last ate, when you last slept, whether you are currently taking any medication, and whether you feel the effects of the alcohol. During this period of time, the officer is obtaining information which can be used against you, as well as making observations as to your condition, such as slurred speech, lack of coordination, or disorientation which he can then use to try to bolster his case.
A stop made without reasonable suspicion based on specific and articulable facts that a crime has been or is being committed – whether that be a traffic infraction, a DUI, or some other offense – is illegal. Any evidence obtained as a result of an illegal stop will be excluded. This evidence may include everything from observations of use, to any statements made, to your performance on field sobriety tests including the preliminary alcohol screening test. If the stop which led to all of the observations and all of the evidence against you is considered to be illegal, resulting in the exclusion of all that information, the government’s case you will likely implode.
Assuming that the officer believes he is developing enough evidence to support a possible Driving Under the Influence Charge against you, the officer will then ask you to complete a series of so called “Field Sobriety Tests” (link to FST page). These so-called tests, which are presented by law enforcement officers as scientific and reliable indicators of both a person’s blood alcohol level and state of impairment, are in fact non-scientific and open to errors in both administration and interpretation by the individual officer. Many factors such as environmental factors, the subject’s physical condition, and the officer’s ability to adequately administer, explain, or interpret these so-called “tests” can undermine the validity of field sobriety tests as accurate indicators of a person’s state of intoxication. Because the officer is not looking out for your best interests, he will never explain that you attempted to complete the “field sobriety tests”, in high heels, at 2:00 A.M., on a dark, gravelly sloping surface, and with the distraction of traffic speeding by you. Further, even under the most perfect of conditions, people simply have varying levels of coordination and physical ability to complete field sobriety tests, regardless of whether they have had anything to drink. Often, this is the first time an individual has been asked to perform strange and unknown “tests” under the most stressful of circumstances.
As part of these field sobriety tests, the officer will attempt to get you to give a breath sample on a Preliminary Alcohol Screening (PAS) Test device. This is a small hand-held device that is generally not as reliable in its readings as either of the two larger breath test machines, the Intoxilyzer 5000 at the station or the Alcosensor 4-XL with point of arrest system in use in the field. Some of its limitations include its susceptibility to errors in officer operation, maintenance and calibration, as well as its own inherent limitations in detecting interfering substances or separating out mouth alcohol that may falsely register as alcohol present in your blood.
YOUR DUI ARREST: WHEN IS IT LEGAL?
At the point at which the officer has made observations of you, obtained information from you, and had you perform both field sobriety tests and the preliminary alcohol screening test, the officer is likely now ready to arrest you. After arrest, the officer will likely ask you to consent to a breath, blood or urine test to determine either blood alcohol level or the presence of a controlled substance in your system. You can refuse to take any of these tests. However, you should be advised that if the officer indicates you refused to provide a sample, the DMV will automatically suspend your license for one year. Sometimes, the officers will conduct what is termed a “forced blood draw” to attempt to obtain a sample. Courts have found that this neither violates your 5th Amendment right against self-incrimination nor shocks the conscience enough for it to represent a violation of your constitutional rights, provided it is done in a medically approved manner and without the imposition of excessive force by law enforcement.
For an arrest to be considered to be legal, it must be based on legally obtained probable cause to believe that a crime has been or is being committed. Whether that level of probable cause has been reached is open to interpretation and argument and calls for an in-depth factual analysis of each individual case. Probable cause is generally understood to be that combination of factors which would support a strong belief that a crime has been or is being committed. All of the information that police officers attempt to gather through their DUI investigation – from observation of your driving pattern, to observations of your physical condition, to any information you may provide in response to the officers questions, to your alleged performance on field sobriety tests including the preliminary alcohol screening test – will all be used against you by the officers to try to reach that probable cause to arrest you.
An arrest made without legally obtained probable cause is illegal. The remedy for an illegal arrest is the exclusion of all evidence uncovered by the arrest, ranging from test results, to any statements, to the observations of law enforcement. Exclusion is a powerful remedy the courts use to prevent police overreaching and violations of your constitutional rights. Similarly, even if the arrest itself is considered to be legal, evidence obtained after that arrest in violation of either your Fifth Amendment right to remain silent or Sixth Amendment right to counsel will also be excluded.
YOUR RIGHTS AFTER ARREST
To protect your rights after arrest, it is first necessary to identify that point at which an arrest will be said to have taken place. Although none of us would feel free to leave once we are the target of an officer’s investigation, courts have held that it is not until much later that we are actually “under arrest.” This allows the officer to question, test, and make observations as part of his “investigation”, all without reading you your rights. Once you are considered to be “under arrest”, you have constitutional protections that go into effect, protections against being subjected to what is termed “custodial interrogation” in violation of either your 5th Amendment Right to Remain Silent or your 6th Amendment Right to Counsel.
DEFINING THE ARREST: WHEN DOES IT TAKE PLACE?
An arrest is considered to take place at that point at which there is such a significant restraint on the liberty of the individual that a reasonable person, considering all the surrounding circumstances, would not feel free to leave. Although most of us would not feel free to leave as soon as we are contacted by an officer and become the focus of his investigation, the courts have held that the entire DUI investigation, absence unusual or aggravating circumstances such as excessive detention or overwhelming officer presence, is merely “investigatory” and does not require advisement of your rights. During this “investigatory” stop, the officer does not need to advise you as to your Fifth Amendment right to remain silent or your Sixth Amendment right to counsel. It is only at the point at which you are considered to be actually under arrest that the law enforcement officer must advise you as to your constitutional rights before subjecting you to any custodial interrogation. What factors support a finding of “custody” and what actions by law enforcement amount to “interrogation” will be heavily influenced by the facts of each individual case.