Insufficient DUI Evidence of Intoxication can be non-alcohol reasons or minimal symptoms or passing FST’s

California DMV may gather DUI evidence relating to so-called “Symptoms” and “FST’s. San Diego DUI attorneys point out that the DMV Manual specifically states that “Objective symptoms of intoxication can also occur for reasons other than intoxication, such as:

1. Bloodshot/watery eyes can be due to crying, contact lenses’, allergies, or other eye irritations.
2 Nystagmus occurs naturally in some persons.
3. Gait or balance problems could be due to musculoskeletal problems, injuries, or a prior stroke.
4. Slurred speech could be due to an impediment or a residual effect from a stroke.
5. Drowsiness could be due to fatigue or lack of sleep.

Minimal DUI symptoms or pass most FST’s = insufficient DMV evidence San Diego lawyers can also point to the Manual to support a contention that “insufficient DUI evidence exists to support reasonable cause to believe the person was under the influence:

A. The driver displayed minimal or no objective symptoms.
B. The driver passed all the field sobriety tests.
C. The driver passed most of the FST’s and the performance on the failed test(s) was marginal.
D. Illness or injury….”

Full Manual text below:

“12.072 Reasonable Cause to Believe the Person was Under the Influence

The second sub-issue of “reasonable cause” is whether there is reasonable cause to believe the person was under the influence of either alcohol or drugs or a combination of both and/or if the driver was driving in violation of §23154 VC, 0.01 % BAC or more while on DUI probation for a violation of §23l52 or §23153 vc.

The officer must have reasonable cause, not proof, to believe the person was under the influence while driving. The DS 367/DS 367M or testimony must include the objective symptoms supporting the officer’s belief.

The DS367 contains check boxes for the officer to indicate the objective symptoms that were observed, bloodshot/watery eyes, odor of alcoholic beverage, unsteady gait, and/or slurred speech. There is also a blank space provided to write in other symptoms, i.e., drowsiness, vomiting, poor balance, disheveled appearance, unsatisfactory field sobriety tests (FST) and preliminary alcohol screening (PAS) results. Other symptoms to consider are; did the driver:

• have constricted or dilated eyes?
• have fresh needle marks or other skin signs of drug use?
• have an odor of a drug, such as PCP?
• show unusual euphoria, drowsiness, apathy, or hyperactivity?
• admit to alcohol or drug use?

Objective symptoms of intoxication can also occur for reasons other than intoxication such as:

• Bloodshot/watery eyes can be due to crying, contact lenses’, allergies, or other eye irritations.
• Nystagmus occurs naturally in some persons.
• Gait or balance problems could be due to musculoskeletal problems, injuries, or a prior stroke.
• Slurred speech could be due to an impediment or a residual effect from a stroke.
• Drowsiness could be due to fatigue or lack of sleep.

12.073 Insufficient Evidence to Support the Intoxication Sub-Issue

The following are some examples of insufficient evidence to support reasonable cause to believe the person was under the influence:

• The driver displayed minimal or no objective symptoms.
• The driver passed all the field sobriety tests.
• The driver passed most of the FST’s and the performance on the failed test(s) was marginal.
• Illness or injury, such as diabetic hypoglycemia or a head injury, may cause symptoms similar to intoxication. Consider whether the officer knew or should have known of the medical condition(s).

12.074 Reasonable Cause to Believe Driving Occurred While Intoxicated

The third component or sub-issue of reasonable cause is whether the officer had reason to believe the driver was under the influence at the time of driving. A person may easily have alcoholic drinks and drive, and then become intoxicated, or be intoxicated but not drive until sober. The hearing officer determines whether there is reasonable evidence to support the officer’s belief the respondent was under the influence while driving a motor vehicle.

The situations described below are examples of how an officer may come to a reasonable belief that a person drove a motor vehicle when they were under the influence:

• The officer’s observation of objective symptoms occurs simultaneous to or immediately after the observation of driving.
• A brief time elapsed between the report of driving or collision and the officer’s observation of objective symptoms.
• The officer observed objective symptoms a short time before the observation of driving.

12.075 Insufficient Evidence to Support Driving While Intoxicated

There may be insufficient evidence to support that the officer had reasonable cause to believe driving occurred while the person was under the influence.

If there are situations where there is evidence and/or testimony to support that alcohol was consumed after driving, but before contact with an officer, examine the evidence and/or testimony. Ask additional questions to establish when the alcohol consumption occurred.

This argument is usually associated with:

• hit and run collisions
• when the driver leaves the vehicle behind to avoid apprehension
• unobserved single vehicle collisions.”

[From pages 12-34 to 12-36 of Chapter 12 Administrative Per Se Hearings Driver Safety Manual, California DMV, revised August 2011.]