Understanding the HGN Test in California DUI Cases

The horizontal gaze nystagmus test (HGN) is often the first field sobriety test administered in a California DUI investigation. Customarily, the police officer does not need probable cause to arrest before requesting a driver to perform a field sobriety test such as an HGN. The biggest source of error on the HGN is the failure of the officer to properly administer the test. Indeed, there are at least 25 different steps that need to be performed to properly conduct the HGN test. The National Highway Traffic Safety Administration training manual says that the procedures must be followed with precision and that failure to do so renders the results unreliable. In a DUI trial the jury should be made aware that the tests are standardized field sobriety tests—not randomized field sobriety excursions. It must be explained to the jury that an agency of the federal government (NHTSA) has established that the tests must be given in a particular manner or they are not reliable. No freelancing is permitted. Even if the officer administered the HGN test flawlessly, the test is still subject to attack. In fact, HGN can be caused by a number of reasons other than alcohol intoxication. HGN occurs naturally in some people who are not under the influence. Also, fatigue, illness, hypertension, and common drugs like caffeine or aspirin may contribute to HGN.

What Are the Exceptions to the IID Requirement in California?

The DUI laws in Los Angeles California require the installation of an ignition interlock on all vehicles owned by a person convicted of a DUI.  The question is often asked, how do you I get around this requirement?  There is a possible exemption from compliance with this pilot program if within 30 days of the notification of the IID requirement, the person certifies to the department all of the following:

• The person does not own a vehicle.
• The person does not have access to a vehicle at his or her residence.
• The person no longer has access to the vehicle being driven by the person at the time of arrest for a violation that subsequently resulted in a conviction for a violation of VC §23152 or VC §23153.
• The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with a functioning ignition interlock device.
• The person acknowledges that he or she is required to have a valid driver license before he or she can drive.
• The person is subject to the requirements of this section

When he or she purchases or has access to a vehicle. Installation of an IID device on car(s) does not allow the person to drive without a valid driver license. For the purposes of this pilot program, vehicle does not include a motorcycle until the state certifi es an IID that can be installed on a motorcycle. Further, a person subject to an IID restriction shall not operate a motorcycle for the duration of the IID restriction period.

How Do California DUI Laws Treat Commercial Drivers?

DUI Laws in general tend to slam a person charged and convicted with drunk driving, however, when you are a commercial driver it gets even more evil. In addition to any other penalties, if a driver of a commercial motor vehicle violates Vehicle Code 23152(a), (b), (c), or (d) or section 23153(a), (b) or (d) while driving any vehicle, and the court notifies the DMV of this fact, the DMV must disqualify that driver from driving a commercial motor vehicle for one year. (VC 15300(a)(1)–(4), 15320). If the driver is convicted of a second DUI violation, the California DMV will impose a lifetime ban on that driver’s right to drive a commercial motor vehicle.

What about when a refusal is alleged as part of the DUI? In refusal cases, in addition to any other penalties, if a driver of a commercial motor vehicle willfully refuses to submit to, or fails to complete, a chemical test to determine his or her blood-alcohol content in connection to the driving of any vehicle, the DMV must disqualify that driver from driving a commercial motor vehicle for one year. A driver’s second refusal will result in a lifetime ban on his or her right to drive a commercial motor vehicle.

California DUI Impoundment Laws

A little known punishment relating to a DUI is the impoundment or actual sale of a defendant's car upon conviction of a drunk driving offense.  Though the California DUI Laws are some of the most stringent in the nation, the penalty is not often imposed, at least in the larger counties, largely due to to the logistical issues involved. Under the California Vehicle Code, the court may order that a vehicle that was used in the commission of an offense of DUI, and was registered to the convicted defendant, be impounded at the defendant’s expense for one to 30 days if the defendant has not had a prior conviction within the last five years. If the defendant has had a prior conviction within the last five years, the court must order impoundment of the vehicle at the defendant’s expense for one to 30 days, except in an unusual case. If the defendant has had two or more prior convictions within the last five years, the court must order impoundment of the vehicle at the defendant’s expense for one to 90 days.

If the accused is convicted of DUI and has two or more separate convictions within seven years, or is convicted of DUI with injury and has any separate convictions within the same period, the court may declare the vehicle a nuisance and order it to be sold, as long as the defendant is the registered owner under CA Vehicle Code §23596.  However, according to one Hermosa Beach Dui Attorney, the court may not order impoundment or sale if the defendant’s spouse has a community property interest in the vehicle, the vehicle requires only a class C or a class M license, and the vehicle is the sole vehicle available to the defendant’s family. (Courtesy, CA Jud. Bch Guide)

Can a Cop Arrest a Person For DUI When They Were Not Driving?

It may seem like common sense to most folks, the police cannot arrest someone for a misdemeanor unless the offense takes place in their presence.  Well in California the rule is not so clear.  As a general rule, a peace officer may make a lawful arrest for DUI without a warrant for a misdemeanor offense only if he or she has probable cause to believe that such an offense is being committed in his or her presence.  With respect to a DUI offense, the “in the presence” requirement necessitates that the officer see the vehicle move. According to one DUI Attorney in Torrance CA, the Court found exactly that to be the case based on the fact that the offense did not occur in officer’s presence when vehicle, although running, was not moved. Subsequent to that Court's decision the law was changed to allow for a plethora of exceptions that in effect swallowed the rule, these exceptions will be discussed in a later post.  Nonetheless, when one officer has reasonable suspicion, based on personal observation, that a motorist may be driving while intoxicated, the arrest may be made by another officer who did not see the motorist commit the alleged DUI, but who is summoned by the first officer. Because both officers participate in the arrest, the arrest complies with the CA Penal Code.  The bottom line, at this point in CA jurisprudence, is that if the cop strolls upon you and sees you are drunk in a motor vehicle you are likely to be arrested.  Whether you can find a way out depends largely upon finding an exception to the rule.

Grand Theft Case Reversed on Appeal

Not many cases are reversed on appeal, this case is one exception.  Though not a DUI case, Mojave DUI Lawyer, Bruce Blythe felt it was important enough to publish given the recurring nature and frequency of this type of case in California. The defendant in the case stole the victim's purse, which had $700 cash in it. At the time, California law said that it was grand theft if the amount stolen was more than $400. The defendant was convicted and he filed a notice of appeal. While the appeal was pending, the grand theft laws in CA (PC 487(a)) was amended, increasing the amount required for a grand theft to $950. Does this defendant get the benefit of the change?  The Court said yes. Indeed, statutory changes favoring a defendant apply so long as the defendant's conviction isn't final.  People v. Wade; C/A 1st, Div. 5.

Can the Police Stop a Car With a Temporary Registration Tag?

Here is the scenario: Police run a DMV check on a car they are following and learn that it is two years out of registration. But the car has a temporary permit affixed to the rear window. Can they make a traffic stop?
According to the Second District Court of Appeal, the answer is “yes.” Regardless of whether the vehicle bears a temporary permit, a DMV check showing expired registration provides sufficient grounds to stop the car and detain its occupants.  In the words of the appeals court:  “An innocent explanation for a possible registration violation,” The court concluded the fact the car had a tem sticker “does not preclude an officer from effecting a stop to investigate the ambiguity.”  According to the court, “The question is not whether defendant's vehicle was in compliance with the law, but whether [the officers] had an articulable suspicion it was not. . . . The DMV record showing expired registration provided the required articulable suspicion there was something amiss with the registration and justified the vehicle stop for Fourth Amendment purposes.”
Attempting to reconcile the recent number of cases on this topic, the court distilled the following rules: 1. “In the absence of other incriminating or ambiguous evidence,” a vehicle displaying a valid temporary permit and no license plates may not be stopped; 2. “If the officer does not see the temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop;” 3. “A vehicle with expired license tabs, but displaying a temporary permit, may not be stopped if the officer has additional information that there is an ongoing process to cure the lapse in registration;” 4.  “A vehicle displaying a valid temporary permit may be stopped where there is some objective indicia that something may be amiss with the registration or permit, such as a missing front license plate; “ 5. “a vehicle displaying no license plates and no temporary permit visible from the rear may be stopped for investigation;” and, 6. A vehicle that the DMV says is not registered but nevertheless displays a temporary permit may be stopped to “investigate the ambiguity” concerning its registration.
It is certainly interesting to compare the Court's legal analysis with the reason the officer actually gave for the stop. He thought a temporary permit authorized driving to and from a smog check only. The court noted that “We do not decide this case based on Officer Moon's subjective belief the temporary permit only allowed the vehicle on the road for the limited purpose of obtaining a smog check—a belief that apparently has no basis in law.”