Sobriety Tests: Multiple Choice

Let’s say you have the misfortune of being stopped by a police officer on suspicion of drunk driving. To determine your guilt or innocence, would you prefer to take a breath test, a urine test or a blood test?

No needle in the arm for me. I’d take the breath test or urine test any time.

But if you were similarly stopped in Irvine, chances are you’d wind up taking a blood test. Some convicted of drunk driving claim that’s because police officers there don’t always make it clear to you that you have a choice. You don’t mind a blood test, do you? is the supposed line of salesmanship. Others say that when they did ask for a breath or urine test, they either were forced to take a blood test anyway, or coerced into it.

No one disputes that the police prefer a blood test: It takes less time to administer, it’s the best court evidence, and a blood test can also detect drugs as well as alcohol.

But Irvine Police Chief Charles Brobeck does staunchly deny that his officers ever coerce anyone into taking a blood test. He also insists that they have been abiding by the law which requires them to explain the three choices to a suspect.

Last week, however, in a decision stemming from an Irvine case, a federal appellate court spelled out the police’s responsibility to make sure drunk driving suspects were not denied their choice of tests. Following the ruling, Brobeck issued a memorandum to his officers: Obey those rules and carefully document what happens in case of later disputes. Brobeck said he “just wanted to make sure that we didn’t have anyone get a little sloppy.”

What the 9th Circuit Court of Appeals ruled was that anybody who seeks one type of drunk driving test cannot then be forced to take another. But what happens if you were never told what test to take, but then went ahead and took the test police told you to take? The appellate court seemed to dodge that issue, for now.

The result of the court ruling is reinstatement of part of a lawsuit filed against Irvine on behalf of several drunk driving suspects, most of them convicted. The lawsuit had been dismissed by a lower federal court judge.

Lawyers for the two sides, as you might expect, differ greatly on the significance of the 9th Circuit’s ruling. The plaintiffs’ lawyers contend this will force changes within the Irvine Police Department. Chief Brobeck insists there’s nothing to change, except “just assure that we don’t have someone who might get sloppy on occasion. We just need to emphasize documentation more.”

The two sides also differ on what’s actually been going on in these drunk driving arrests there. Said plaintiffs’ attorney Jeffrey Wilens of Irvine:

“If you aren’t told you have a choice, and a police officer says you have to submit to a blood test, you aren’t going to challenge that officer. How many of us would know to say: ‘I don’t have to. I have a right to a breath test.”’

But Chief Brobeck contends that videotaping drunk driving pullovers, now a standard practice, generally support his officers’ contention that they are giving these people a choice of three types of tests.

“The real problem occurs when you get someone who is so inebriated he really doesn’t know what is going on,” the chief said. “If a suspect doesn’t tell you what test he wants, then we generally give the blood test because it’s the most efficient.”

The plaintiffs contend numbers support their side: That Department of Motor Vehicle records show that on state average, about one-third opt for a blood test while the vast majority want the breath test. But in Irvine, they contend, about 70% of those taken into custody are administered the blood test. The chief denies there’s undue pressure. But Wilens contends the arrestee is told, ‘Look, take the blood test and if you’re clear, you can be on your way. Insist on the breath test, and you may have to wait in jail for 48 hours.’ The arrestee then opts for the blood test.

It was surprising to me that almost no one wants to take the urine test. But then I found out why: It’s not like at your HMO, where the nurse sends you into a private room with a cup. Under police procedure, someone must watch you at all times. Also, 20 minutes after the first test, you are required to give a second. And if you can’t comply, then you have to start over with either the breath test or urine test.

One instance described in the civil lawsuit must have irritated the Irvine police. A drunk driving suspect (later convicted) named Jeffrey Capler did agree to take a blood test. But just before it was administered, he changed his mind and asked for a test on the breath machine. Too late, the police said. But the appellate court said no, Capler was well within his rights to change his mind.

The city’s lawyer on the case, Jeffrey Wertheimer, said too often the cops have to put up with suspects who play games with them.

“Some of these guys are repeat offenders,” he said. “They know the longer they wait, the better chance the alcohol will leave their system, especially if it’s a close call. So they stall as long as possible.”

I don’t happen to drink alcohol, but if I were stopped by an officer, I would hope I would get my choices of tests. I also wouldn’t be happy if the officer said the blood test can get me on my way quicker, and the breath test might mean jail time for me while I waited.

But I can also empathize with officers who have to put up with drunk drivers. They’ve probably heard about every line you can think of. As the chief said, “You have to understand who we’re dealing with.”

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Jerry Hicks’ column appears Tuesday, Thursday and Saturday. Readers may reach Hicks by calling the Times Orange County Edition at (714) 966-7823 or by fax to (714) 966-7711, or e-mail to jerry.hicks@latimes.com