Can A Kansas Doctor Refuse Client Services For Having A Negative Urine Analysis

In this post your going to acquire how police officers can make mistakes in a DUI investigation which can affect the outcome of a case.

In fact:

Should the police fail to follow certain procedures, a move to exclude or suppress incriminating testify or to dismiss the charges against yous tin can exist filed.

And today I am going to show you lot how we spot constabulary mistakes…

…and you can do the same thing.

Insufficient Reasonable Suspicion For Investigative Stop

Before police can end you on suspicion of DUI the officer must accept reasonable suspicion to do so.

Reasonable suspicion in this context is having reasonable grounds or that the officer tin point to specific articulable facts for suspecting that you are violating the constabulary¹.

Is Reasonable Suspicion A Lower Standard Than Probable Crusade?

The standard is less than that of arresting you based on likely cause since the detention is minimal, at least at firstⁱⁱ.

Does An Officeholder Have To State Why You Were Pulled Over In His/Her Police Report?

An officer stops your vehicle, the officeholder must land in his/her study why you lot were stopped.

Y'all were speeding,
You had unlawfully or unsafely changed lanes,
Y'all failed to make a complete finish at a stop sign
You lot are observed to be weaving in a traffic lane
You are sleeping at the side of the road, or
Engaged in deport that may exist unsafe or committed any other vehicle code violation or infraction

It is not necessary that the officer suspects that you are nether the influence.

If the officer stated that he/she stopped you simply based on this feeling or hunch, it would be grounds for exclusion of all bear witness obtained as a upshot of the illegal finish.

Does An Officer Need Reasonable Suspicion To Pull You Over At A Checkpoint?

An officer does non demand reasonable suspicion or probable cause to pull you over at a checkpoint provided the guidelines in Ingersoll v Palmer are followed³.

An officer is permitted to stop and observe certain vehicles co-ordinate to a specific protocol and determine if the motorist may exist under the influence and/or properly licensed.

Failure to Obtain a Drinking Blueprint

Your drinking design tin be instrumental in determining whether your BAC test results were accurate. If your blood booze concentration is nonetheless rising, then the result on the jiff examination is not necessarily indicative of what your bac was at the fourth dimension of driving.

Nether the law, it is a rebuttable presumption that you were nether the influence if your BAC is 0.08%⁴.

Police Failure To Obtain Statements Can Be Detrimental to The Prosecutions Instance

Police officers, likewise as prosecutors, frequently err when they fail to produce statements or testimony that shows how many drinks yous had and when you lot had your final drink and so every bit to refute your argument that your BAC was at a legal level when you were driving.

You can demonstrate your drinking period over an approximate fourth dimension through receipts from the establishment where you were drinking and/or from testimony of a bartender, waitress or other witness to your drinking who tin also adjure that you exhibited no signs of intoxication when you left.

Prosecutors rely on skillful testimony from toxicologists that are tasked with estimating your BAC at the time of driving. Often times, the chemical test is taken several hours later the alleged fourth dimension of driving.

The prosecutor must testify what your BAC was at the fourth dimension of driving, rather than just at the time of the test and they do this by having their expert calculate your BAC based on the time of your concluding drinkable. Prosecutorial experts will typically use retrograde extrapolation for this calculation.

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Incorrect Administration of Field Sobriety Tests (FST)

When a motorist is pulled over for a traffic or equipment violation, and the officeholder suspects the driver has been drinking, he or she often requests the driver to perform certain field sobriety tests.

There are 3 tests that have been standardized past the National Highway Traffic Safety Administration (NHTSA):

Walk And Plough
I-Leg Plow
Horizontal Gaze Nystagmus

These are designed to demonstrate that the motorist'due south coordination and/or ability to follow instructions has been dumb by booze. In the manyof these tests, the investigating officer incorrectly administers these tests.

Walk & Plow

There are a number of instructions that an officeholder is supposed to give for correctly performing this test.

For instance, you are to walk heel to toe on a line for 9 (nine) steps, turn on one foot, go along your hands at your side, count out the steps, look at your feet, and return in the same style.

When performing this test, you are required to recall all of the instructions. If yous fail the following:

Keep your balance
Have the incorrect number of steps
Fail to walk heel to toe
Lift your hands to balance
Step off the line
Stop while walking
Perform an improper turn

And then this will be noted past the officer every bit an indicia of impairment.

What If The Officer Gave You Wrong Instructions For The Walk And Plow Test?

If the officer gave you lot incorrect instructions then the exam is considered less reliable as an indication of your impairment.

One Leg Stand up

For this test you are required to stand on one human foot for up to 30 seconds and to count each second off. Go on each leg straight and arms at your sides.

Any hopping or swaying at your sides can be interpreted equally impairment.

If the police officer instructed you incorrectly then that volition affect the reliability of this test to be used as evidence past the prosecution of your intoxication.

Horizontal Gaze Nystagmus

For this test, the officer will agree upward a finger or pencil in front of your face and tell you to track it while observing your eye movements. The officer is looking for involuntary jerking of the optics called nystagmus. This test is often improperly administered and officers do not business relationship for the natural nystagmus that occurs in persons who are not impaired.

Studies of these tests have shown that they are non reliable indicators of impairment and that officers in the bulk of cases fail to conduct them properly. Such tests may are non administered correctly for several reasons, including not accounting for these factors:

Sloped surface
Windy conditions
The physical condition of the suspect other than from intoxication

Other FSTs include reciting the alphabet, performing finger to nose, counting backwards, continuing with anxiety together and tipping your head backwards while estimating xxx seconds in your head with closed optics, among others.

Instructions are normally given apace and suspects are more than than likely to forget something.

Another problem is that an officeholder has no style of knowing how the doubtable would have performed the test regardless of how much alcohol the person had performed or nether any other circumstances.

Failure to Wait 15 minutes for Jiff Test (Championship 17)

Nether Championship 17 CCR §1219.iii, an officer is required to place you under abiding observation for 15 minutes before the jiff exam is administered. The officer does not have to have eyes on you the unabridged time but demand just be in close proximity^v.

Why Does An Officer Demand To Discover You lot For 15 Minutes?

The purpose of the observation is to ensure the suspect does not eat, drink, vomit, regurgitate, burp, belch, or smoke. Whatsoever of these deportment can affect the results of the breath test.

Officers routinely violate this directive in a multifariousness of ways.

Examples Of A Violation of The 15 minute Ascertainment Menstruation

When transporting a suspect to a police station to administer the breath examination, a suspect may be in a caged back seat, sprawled on the seat, or otherwise not within the ascertainment of the officer.
At the police force station, the suspect may be left solitary for several minutes while preparation is made for conducting the test.
Further, the officer may have failed to note an entry almost when the fifteen-infinitesimal observation period began.

Your DUI defence force attorney can certainly debate that the officer'southward failure to follow Title 17 directives unduly influenced the exam and cast reasonable incertitude on the results⁶.

How Does Officeholder Failure To Look 15 Minutes Affect Your Case?

While the lack of constant observation may not effect in the suppression of the examination results, it can certainly go to the weight of the evidence. An officer can certainly testify regarding the reason or purpose of the rule since if the suspect did swallow something, belched or burped, or vomited at all, it can affect the test results.

Failure to Go on Track of Important Details

Prosecutors are tasked with the brunt of proof in any criminal example. In DUI cases, the details are of import in establishing the reliability of the BAC presented as proof of impairment.

When people beverage alcohol, their BAC will rise while they are still absorbing the booze they accept consumed. This means that if you just consumed alcoholic beverages and so brainstorm driving a few minutes later, your BAC may non be at the 0.08% level considering your body may not take absorbed all of the alcohol consumed.

Prosecutors are tasked with the burden of proof in any criminal instance. In DUI cases, the details are important in establishing the reliability of the BAC presented as proof of impairment.

When people drink alcohol, their BAC will ascension while they are even so absorbing the alcohol they accept consumed. This means that if yous merely consumed alcoholic beverages and then begin driving a few minutes afterward, your BAC may non be at the 0.08% level because your body may not have absorbed all of the booze consumed.

What Happens If Your BAC is Still Rising?

If you are stopped and investigated for suspicion of DUI and accept a breath or claret exam an 60 minutes or so later you were stopped, and then your BAC may accept risen to 0.08%. while y'all were out of your car. This is too referred to as the "Rising Blood Alcohol Defense."

Alcohol is absorbed into the body at unlike rates and depends on an individual's physiology, metabolism, and if at that place is nutrient in the stomach. The timing of when you lot terminal consumed an alcoholic beverage and when you ate can have a substantial effect on how the booze you drank enters your body and at what charge per unit it is captivated.

Prosecutors Rely On Police Officers To Go The Details

Police force officers err when they neglect to produce statements that indicates when you had your last drink so equally to counter your argument that your BAC was at a legal level when you were driving.

How Practice You Use This To Your Advantage?

Under California Vehicle Code Department 23152(b), information technology is unlawful to drive with a BAC of 0.08% or higher. There is a rebuttable presumption that a BAC test issue obtained within 3-hours of driving is your BAC when you were driving⁷.

Your defense attorney can rebut this presumption with credible expert testimony from a forensic toxicologist who takes the time of your consumption of alcohol and nutrient and demonstrates that your BAC was on the rise when y'all were tested an hour or more afterwards you really drove and testify that your BAC was below 0.08% while you were driving.

How Practise You Prove Your Drinking Time?

You lot tin can show an approximate time when you were drinking through receipts from the institution where you were drinking or from the testimony of a bartender, server, or another witness to your drinking.

Not Obtaining 2 Jiff Samples

When you are given the breathalyzer, the operator is required to obtain 2 breath samples whose results practise not differ by more than .0.2 grams per 100 liters of blood alcohol.

These requirements are outlined in Title 17 of the California Code of Regulations and help ensure that the results are accurate.

What Is An Case Of An Unreliable Test Result?

If your beginning breath test was 0.08% and your second was 0.12%, it is not a valid sample.

If this occurs, the officer or operator must conduct another exam or tests so that two of them are within 0.02 grams of each other. The tests demand not be sequent.

What Is An Case of A Police Mistake?

Errors by operators occur when they fail to notice that any 2 test samples are within the required 0.02 grams but submit the results every bit valid.

Failure to Properly Admonish in A Chemic Test Refusal

There is mandatory language contained in California Vehicle Code § 23612 whereby an officer is required to admonish you of the consequences of refusing to take a chemical test when stopped for a DUI^viii. The admonishment is printed on the back of the DS 367 so that the officer tin can read it direct from the DS 367 to the driver.

What Is The Admonishment?

The officer must clearly explain the following:

The chemical examination is required by law
Bachelor tests have been offered to you
Refusal to take a chemical test or failure to consummate a examination will upshot in the post-obit consequences
- A one year license suspension, or
- A ii year license revocation with a prior DUI confidence
- A three year license revocation with two or more prior DUI or wet reckless convictions

What Are The officers Requirements With Regard To The Admonishment?

The driver must be able to clearly hear the admonishment. If there was noise which prevented the commuter from clearly hearing the admonition and the officers were aware of information technology than the driver was not properly admonished⁹.
The admonition must exist read from the DS 367 or an canonical form, the officer may not change linguistic communication within the admonition which might mislead the driver^ten.
The admonition must exist read past a peace officer

What Happens If The Officer Failed To Admonish Y'all Properly?

If the officer neglected to read the admonishments as required under police, your license should survive intermission. Alternatively, if the officeholder gave yous the incorrect fourth dimension period for your license suspension it may be reduced to a lower time flow if that was the time period that the officer admonished you lot with¹¹.

Not Maintaining Chain of Custody in a Blood Draw

When a blood test is performed in a DUI example, the sample is required to be taken in a certain fashion, marked or identified, and kept securely in an expanse where it will not be exposed to contamination

A prosecutor must demonstrate in whose custody the sample was at all times and that it was properly labeled and stored.

Documentation must exist rigorously followed from the time of drove until disposal.

Why Is The Chain Of Custody Important?

A blood sample for DUI or any other evidentiary purpose cannot be introduced at trial unless a proper foundation is laid. The prosecution must be able to trace from competent prove where the sample has been at all times from the time information technology was taken from the defendant to the time information technology was analyzed and to the present.

In some cases, the sample is handled by multiple individuals and all must exist identified and the times when the sample was in their custody.

For case, the sample may have been handled by the arresting officer, a medical technician or medico, the transporting officer, a person in charge of collecting and storing show at the lab, and possibly a chemist.

The person who took the blood sample is generally responsible for labeling it and placing information technology in the container before storing it.

What Happens If The Chain of Custody Was Broken?

If the chain of custody is interrupted which means that the evidence was non transported and booked in accord with protocol then your defence chaser tin can move the court to suppress or exclude the sample from trial because it has not been established that the sample was the defendant's or that it has been contaminated¹².

If the courtroom refuses to grant a motion to suppress, your attorney can nonetheless argue that the concatenation of custody was cleaved, thus injecting reasonable doubt about your guilt.

Failure to Provide a Trombetta Advisement

Under Vehicle Code § 23614, you are supposed to be advised before and after you submit to jiff testing that the jiff sample is not preserved, and that you accept the opportunity to have a blood or urine sample taken from y'all at no cost to you.

What is the Purpose of This Advisement?

The purpose of this admonition is so you lot will have something that tin later exist analyzed to make up one's mind your BAC. Either you or the prosecution can have the subsequent blood tested with a blood carve up order or urine sample tested. This advisement is known at the Trombetta advisement^xiii.

In many DUI arrests where a breath sample is taken, the officer omits this advisement. Simply under California law, this omission does not result in suppressing the results of the breath sample, However, your attorney can argue that this advisement is office of California police and was meant to protect defendants who argue that the jiff exam is subject area to numerous influences that affect its results and that a claret exam is more than accurate.

Further, your attorney may argue that the officeholder's failure to so suggest you lot deprived you of a right to a more accurate representation of your BAC.

Introducing other evidence of a drinking design, your lack of signs of impairment, and the ascension booze defense in conjunction with the officer'south failure to give you the Trombetta advisement tin raise reasonable doubt in the minds of jurors.

Failure To Obtain Warrant Prior to Forced Blood Describe

For many years, police were permitted to forcefulness a defendant to accept claret fatigued in certain cases, usually these cases involved fatal DUI crashes where commercial drivers, as well as those with regular licenses, were suspected of being under the influence.

Prosecutors argued that exigent circumstances existed in such cases that allowed them to extract a sample absent a warrant to practise and so if the defendant refused consent¹⁴. The rationale was that it took too much time to secure a search warrant to accept a claret sample, allowing the alcohol or BAC level to dissipate. The fact that alcohol dissipates was itself an exigent circumstance that justified the warrantless search.

This inverse in 2013¹⁵. In the McNeely instance, the court ruled that current technology at present immune much faster means to obtain a warrant so that the exigent circumstance regarding dissipation of a suspect's BAC level that previously existed was no longer valid.

In other words, officers can now obtain a warrant electronically, giving them adequate time to do and then.

Should an officer force a defendant to produce a blood sample, usually by restraining the individual confronting his will, then the officeholder'due south failure to obtain a warrant should render the blood sample result inadmissible at trial.

The officeholder's outrageous conduct in restraining a suspect to forcefulness extraction of a blood sample could besides be used to motion the court to dismiss all charges against the defendant^xvi.

Failure to Turn in PAS Device for Required Accurateness Testing (Title 17 Violation)

The PAS, or preliminary alcohol screening device, is a handheld monitor that an investigating officeholder oft uses to establish a motorist's BAC closest to the time of driving.

If the records kept by the item police bureau that has custody of the PAS device failed to have it tested for accuracy or maintained every 10 days or 150 uses (whichever happens first), this a violation of Title 17 of the California Code of Regulations.

Nether Title 17, the officer administering the PAS is required to check or perform the following:

Ensure the PAS has been properly maintained and checked for accuracy every x-days or subsequently 150 uses
See that the device's battery is charged
That it is not afflicted by RFI (radio frequency interference)
That the device has an internal operating temperature within standards or limits
Ensure that a new and germ-free mouthpiece has been affixed to the device before the showtime and subsequent blows
That a xv-minute observation period is followed earlier the defendant blows into the PAS
That 2 jiff samples be obtained that are within 0.02 grams of each other and that there was a ii-minute reset between attempts
Conduct an "air blank" or reset the device so that it goes through a gear up sequence to verify there is no rest air from previous uses

What Happens If The Pas Was Not Turned In For Testing?

Failing to turn in the PAS device for accurateness testing calls into question the accuracy of the BAC exam result. Before the results of the PAS are introduced at trial, the prosecutor must lay a proper foundation for its admissibility. Your defence force chaser can rebut the results with affirmative evidence that the guidelines were not followed.

This Violation Goes To The Weight Of Bear witness Not Admissability

The failure of an officer to follow all Championship 17 provisions regarding the PAS test results will not necessarily result in a court excluding its results¹⁷. Nonetheless, your attorney should brand a movement to exclude the results in any event.

A violation of Championship 17 goes to the weight of the evidence¹⁸. Your defence force attorney tin certainly argue that the purpose of the Title 17 provisions is to ensure the accuracy of the examination results and so that innocent persons are not wrongly convicted of DUI. If anything, the failure to follow Title 17 injects another element of reasonable dubiousness into your example.

Copy/Paste Police force Report Without Changing Facts

Many police officers are diligent in preparing police reports that present the facts and circumstances of a vehicle stop, that all procedures were followed, and that probable cause was found for the stop, detention and arrest.

Even so, in that location are times when an officer takes a brusque-cut in preparing the report.

Why Would A Police Officer Re-create/Paste A Written report?

This may be done out of time constraints, fatigue, or laziness. A brusque-cut may be simply copying content from a different but like stop and arrest instance and pasting it into a current case that the officeholder has only investigated and without changing the facts specific to the arrest.

In these cases, an officeholder will use a similar report that has the same justification for stopping a vehicle, contains the same admonitions required to be given to the motorist when field sobriety and the BAC tests are requested, and sometimes with the same results.

Because some officers may take been disciplined in the past or had prior complaints of copying and pasting law reports, your attorney can file a Pitchess Motion to request the investigating officer's personnel file to determine if he or she was disciplined for such bear¹⁹.

In some cases, the officer who prepared the written report might have forgotten to change a proper noun or left in in an essential fact, such as the location of the terminate, that will bandage suspicion on the written report'southward accuracy.

Terry v, Ohio (1968)393 US i [↩]
Probable cause for abort is divers as "…simply when the facts known to the arresting officer 'would lead a homo of ordinary care and prudence to believe and consciously entertain an honest and strong suspicion that the person is guilty of a crime.'" People five. Price (1991) i Cal.4th. 324,410 [↩]
Ingersoll v. Palmer(1987) 43 Cal.3d. 1321 [↩]
People v. Gallardo (1994) 22 Cal.App.4th 489, 496 [↩]
Manriquez five. Gourley (2003) 105 Cal.App.fourth 1227 [↩]
People v. Adams(1976) 59 Cal.App.3d 559, 567 [↩]
People v. Roder (1983) 33 Cal.3d 491, 497-505 [↩]
California Penal Code 23612(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will outcome in a fine, mandatory imprisonment if the person is bedevilled of a violation of Section 23152 or 23153, and (i) the break of the person'southward privilege to operate a motor vehicle for a menstruation of ane year, (ii) the revocation of the person'southward privilege to operate a motor vehicle for a catamenia of two years if the refusal occurs within x years of a separate violation of Section 23103 equally specified in Section 23103.5, or of Department 23140, 23152, or 23153 of this lawmaking, or of Section 191.five or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if the person's privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an law-breaking that occurred on a divide occasion, or (iii) the revocation of the person's privilege to operate a motor vehicle for a menstruation of three years if the refusal occurs within ten years of two or more separate violations of Department 23103 equally specified in Section 23103.five, or of Section 23140, 23152, or 23153 of this code, or of Department 191.5 or subdivision (a) of Section 192.five of the Penal Code, or any combination thereof, that resulted in convictions, or if the person's privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.i, or 13353.2 for offenses that occurred on divide occasions, or if there is any combination of those convictions, authoritative suspensions, or revocations. [↩]
Thompson v. DMV, 1980 107 Cal.App.3d 354 [↩]
Giomi v. DMV, 1971 15 Cal.AppJd 905 [↩]
Daly v DMV, 1986 187 Cal.App. 3d 259 [↩]
People v. Lucas (1995) 12 Cal.4th 415, 444; People v. Herrera (2000) 83 Cal.App.4th 46, 61 [↩]
California 5. Trombetta (1984) 467 Usa 479 [↩]
Schmerber v. California (1966) 384 Us 757 [↩]
Missouri v. McNeely (2013) 133 South.Ct. 1552 [↩]
Rochin v. California(1952) 342 United states of america 165; The states v. Miller(1989) 891 F.2nd 1265 [↩]
People v. Adams (1976) 59 Cal.App.3d 559; People 5. Bury(1996) 41 Cal.App.4th 1194 [↩]
People v. Williams (2002) 28 Cal.4th 408, 417 [↩]
Pitchess v. Superior Court (1974) 11 Cal.3d 531 [↩]

Ms. Aizman is the founding chaser at Aizman Police force Firm, an award winning criminal defence attorney & sometime prosecutor for the city of Los Angeles. She regularly appears on CNN, Pull a fast one on News, HLN & CBS News to provide legal insight on diverse legal topics. She is a proud fellow member of the California Attorneys For Criminal Justice, California DUI Lawyers Association & the National College of DUI Defense