The Police Officer that Administers the Tests Must Also Testify

The U.S. Supreme Court recently made a landmark ruling that has significant bearing on all criminal defense cases across the United States and in your Utah DUI Defense. The decision issued by the Court states that when trying to prove a criminal fact, the individual who performed the test to determine the fact must also be the one to testify in Court, and other experts or substitutes may not be used. This ruling also applies to law enforcement officers who use radar guns to determine a driver’s speed.

For example, what this means in a DUI test is that if a person arrested for suspicion of DUI fails a breathalyzer test, the police officer who administered the breathalyzer must be the one to testify in Court. This new ruling would exclude anyone else from testifying in court on the matter, whether it is a colleague, a witness to the test administration, or any other individual.

According to the Sixth Amendment to the United States Constitution, a person has the right “to be confronted with the witnesses against him.” The United States Supreme Court interpreted this clause to mean that while testimonies of witnesses received outside the courtroom may be used during criminal proceedings, actual evidence such as lab reports and breathalyzer results, as used in the example above, must be presented by the person who administered the test in the first place. The only exception to this rule is if both the prosecution and the defense agree beforehand to allow some other person to testify in place of the test administrator.

Utah DUI Defense Legal Representation

If you have been arrested for DUI in Utah or have questions about Utah DUI defense representation, you deserve the knowledge and expertise of the Utah DUI Defense Attorneys at Bostwick & Price, P.C. www.bostwickprice.com

Suppression of Utah DUI Evidence

In a DUI situation in Utah, an officer typically stops, detains, questions and arrests a person.  During these stages of the DUI investigation, protections afforded under the 4th, 5th and 6th amendments to the United States Constitution apply.  An experienced DUI defense lawyer will look closely at the events as they occurred to make sure the arresting officers did not violate any of his clients rights.

The 4th Amendment to the US Constitution and the Arizona Constitution protect persons from unreasonable and unwarranted Searches and Seazures by the Government. This includes Police officers.  When a person is stopped by an officer in a DUI case, this constitutes a siezure and there must be a traffic violation or reasonable suspicion of criminal activity to justify this stop.  Officers will then detain and search and again there are constitutional requirments that they must follow.  When a person is arrested, probable cause that a crime has been or is being committed is required.  This is also required before DUI blood or breath testing (constituiting a search) can be required.

The famous "Miranda" case which came out of Arizona, details the protections afforded under the 5th Amendment.  A person being detained for suspicion of criminal activity has the right to remain silent and the right to an attorney.  Police officer's are required to notify you of these rights if you are detained and questioned. 

The 6th amendment gives a suspect in a criminal or DUI investigation an additional right to an attorney.  In the context of a DUI case, a person who has been stopped for DUI should ask to talk to a defense lawyer.  Police officers must give a reasonable

opportunity to make the call to a lawyer.

When an officer does not follow these constitutional rules an experienced DUI defense lawyer can fight to have evidence suppressed and the charges dismissed.  The Utah DUI Defense Attorneys at Bostwick & Price, P.C., www.bostwickprice.com ,evaluate each case looking for any violations that the officers may have made.  The Utah DUI Defense team at Bostwick & Price, P.C. will interview the officers involved in the DUI stop and investigation to pinpoint what actually occurred and fight to suppress any DUI evidence that resulted from a violation of our client's rights.

Utah DUI Defense Legal Representation

If you have been arrested for DUI in Utah or have questions about Utah DUI defense representation, you deserve the knowledge and expertise of the Utah DUI Defense Attorneys at Bostwick & Price, P.C. www.bostwickprice.com

Field Sobriety Evaluations or "Tests"

Utah Field Sobriety Tests Overview

Field sobriety tests (FSTs) are tests designed to determine whether someone is under the influence of alcohol or drugs. When police officers suspect that someone is driving under the influence, they are trained to administer field sobriety tests before they make an arrest for DUI. There are three standardized field sobriety tests established by the National Highway Traffic Safety Administration (NHTSA) which are used in Utah:

• Horizontal Gaze Nystagmus (HGN)
  
• Nine Step Walk and Turn
  
• One Leg Stand
  

Horizontal Gaze Nystagmus

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that happens naturally when someone moves his eyes from side to side. When a person is under the influence of alcohol, this jerking becomes more exaggerated. This happens because the small muscles that control the eyes have a more difficult time controlling fine eye movements, so the eyes will jerk or skip instead of moving smoothly from side to side. Also, when the eyes are looking all the way to one side, they will bounce sideways instead of staying still.

When an officer performs the horizontal gaze nystagmus test, he will hold a pen or a finger in front of your face and will watch your eyes as he moves it from side to side. If your eyes cannot smoothly follow the moving pen, or if your eyes cannot stay still while looking to the side, or if the jerking starts prior to a 45 degree angle, then the officer will usually decide you are over the legal limit and arrest you for DUI.

However, the HGN test is far from perfect, and many other things may cause HGN, such as medications, head trauma, flashing lights, or other medical conditions. By itself, the HGN test is never enough to prove that a person is under the influence of alcohol. Also, unless the test is performed exactly how it is designed, then the results of the test are invalid.

Many officers forget parts of the test, or get impatient and skip some parts. A good DUI lawyer will examine each part of the test and challenge any results that could be invalid.

 

Nine Step Walk and Turn

The Nine Step Walk and Turn test is a “divided attention” test which is designed to measure whether a person can do a mental exercise and a physical exercise at the same time. The test operates under the assumption that a person who is not intoxicated can easily do the test when he or she is not under the influence.

To perform the Walk and Turn test, an officer will ask you to take nine steps, heel to toe, in a straight line, then turn around, and take nine steps in the opposite direction, all while counting out loud. The officer will watch you as you walk in a straight line to see if you make any mistakes. If you begin before the officer tells you to start, raise your arms for balance, do not touch heel to toe on every step, do not turn correctly, step off the line, take the wrong number of steps, or count incorrectly, the officer will use these as “clues” that you are under the influence. If the officer notices two or more of the “clues” he will usually decide that you were driving under the influence of alcohol or drugs.

The Walk and Turn test also has many weaknesses. Many people who have zero alcohol in their system will fail the Walk and Turn test for other reasons. Unless you are paying perfect attention to all of the instructions, it is easy to forget exactly how to do the turn, and if your feet are separated by even an inch, it will be seen as a clue of DUI. Also, most people will raise their hands naturally while walking in a straight line slowly, which has nothing to do with alcohol.

One Leg Stand

The One Leg Stand test is also a “divided attention” test, used to test whether someone can balance and count for an extended amount of time. This test also operates under the assumption that a person who is not intoxicated can successfully complete the test when he or she is not under the influence.

An officer will ask you to stand with one foot six inches off the ground and count out loud by thousands (one one thousand, two one thousand, etc.) without putting your foot down. He will watch you for approximately 30 seconds to see how you count and how well you keep your balance. If you count wrong, sway, hop, use your arms to balance, or put your foot down, the officer will count these as “clues” of being under the influence of alcohol. If he notices two or more clues, the officer will usually conclude that you are DUI.

Like the other tests, the One Leg Stand test is often wrong. Many people who are not intoxicated have difficulty completing the test. Unless you are paying complete attention to exactly how the officer wants you to do the test, and then you concentrate very hard to do exactly what he says, it is natural to use your arms to balance, and most people will naturally sway while standing on one foot. Also, many past and current medical conditions can make it difficult to perform the test as directed.


Bostwick & Price, P.C. Utah DUI Defense Attorneys

The law firm of Bostwick & Price, P.C. has experienced Utah DUI defense attorneys ready to fight for your rights and defend your DUI arrest. Our Utah DUI defense team includes a former Utah police officer who has years of real world experience with Utah DUI arrests, enforcement and education. This unique experience, training and education of our Utah DUI defense team, combined with our law firm’s desire to fight for your rights provides you with the Utah DUI defense team you deserve. www.bostwickprice.com

Utah DUI Breath Test & Blood Test Essentials for the Best Utah DUI Defense

Utah Breath Test & Blood Test Basics           

The two primary ways to measure the amount of alcohol in someone’s blood are breath testing and blood testing. Utah police officers use two methods of breath testing—portable breath tests (PBTs) and breathalyzer or Intoxilyzer machines. Typically, during a DUI investigation, after asking you to perform field sobriety tests, the officer will ask you to take a portable breath test. This test will show whether there is any alcohol in your breath and give the officer a general indication of the amount. If you are arrested for DUI, you will be asked to take a more accurate breath test, called a breathalyzer or an Intoxilyzer. If an officer cannot test your breath for some reason, or you refuse to take the test, an officer may perform a blood test, either with your consent, or by getting a warrant.

Utah DUI Breath Testing—Portable Breath Test (PBT)

The Portable Breath Test (PBT) is a small handheld device which can give a police officer a general idea of how much alcohol someone has consumed. However, because portable breath tests are not 100% accurate, and they are designed to give an unverified reading of someone’s blood alcohol content (BAC), the specific results of a portable breath test are not admissible in court. A police officer can testify, however, about whether the result is positive or negative. Because a court cannot rely on a portable breath test to show whether someone is over the legal limit, a portable breath test alone is not enough to prove someone is in fact guilty of DUI. An officer must also obtain a DUI breathalyzer test or blood test.

Utah DUI Breath Testing—Breathalyzer / Intoxilyzer Machines

If you fail the field sobriety tests (FSTs) and the portable breath test (PBT) shows positive for alcohol, you will probably be arrested for DUI. Once you are arrested, the police officer will usually take you back to the police station to take a breathalyzer/Intoxilyzer test to get a more accurate reading of your blood alcohol content.

A breathalyzer is a machine that is used to measure a person’s blood alcohol content (BAC) by measuring the amount of alcohol vapor contained in that person’s lungs. There are multiple types of “breathalyzer” machines. The breath testing machines used by Utah police are called the Intoxilyzer 5000 and the Intoxilyzer 8000. These machines use spectrometer (light-based) instruments to measure alcohol vapor in lungs, then the machines estimate how much alcohol must be in the blood to produce that much vapor.

Because Intoxilyzer machines do not test the blood directly, and must use calculations based on averages, they are not completely accurate for many people. If you weigh less than average or if you blew into the machine for longer than average, then the Intoxilyzer will probably show a higher amount of alcohol than is actually in your blood. Intoxilyzer machines may also give incorrect readings for people who have diabetes, acid reflux, or other medical conditions. Other things, like alcohol residue in the mouth or radio waves may also interfere with the readings. Or, if the machine itself is not calibrated correctly, then its readings may not be accurate.

A good DUI defense attorney can examine the facts of your case and determine whether there are problems with your breathalyzer results.

Utah Blood Testing

A blood test is the most accurate type of DUI test used by Utah law enforcement. Usually, an officer will not administer a blood test unless someone is unable or unwilling to take a breathalyzer test. When an officer does a blood test for alcohol, a police technician will take a certain amount of blood, mark and seal it in a vial, and send it to the lab to be tested. Blood tests can take several weeks to several months to be processed. Although no science is 100% accurate, the courts view most blood test results as extremely reliable.

Utah law requires police to follow several procedures in order to assure that DUI blood tests are not tainted. If the police do not follow the correct procedures for drawing the blood, marking the blood, transporting the blood, and testing the blood, then the government may be prohibited from using those results in court.

Bostwick & Price, P.C. Utah DUI Defense Attorneys

The law firm of Bostwick & Price, P.C. has experienced Utah DUI defense attorneys ready to fight for your rights and defend your DUI arrest. Our Utah DUI defense team includes a former Utah police officer who has years of real world experience with Utah DUI arrests, enforcement and education. This unique experience, training and education of our Utah DUI defense team, combined with our law firm’s desire to fight for your rights provides you with the Utah DUI defense team you deserve. www.bostwickprice.com