field sobriety test in California

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

1993In our view, a reasonable person under the circumstances here—a brief Terry 2 stop—would not have understood himself to be “in custody.” Indeed, the court in Berkemer likened a traffic stop to a Terry stop, explaining, “The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda." (Berkemer v. McCarty, supra, 468 U.S. at p. 440 [82 L.Ed.2d at pp. 334-335].) Defendant argues that the indicia of a formal arrest were present in that the investigation had focused on him.

1989(Berkemer v. McCarty (1984) 468 U.S. 420 .) In Whalen v. Municipal Court (1969) 274 Cal.App.2d 809 the court held that subjecting a driver to a field sobriety test (without the presence of counsel) did not violate the Fifth Amendment privilege against self incrimination or the Sixth Amendment right to counsel.

1984Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to ‘enable the police to quickly determine whether they should allow the suspect to go about his business *720 or hold him to answer charges.’ ...” (In re Tony C. (1978) 21 Cal.3d 888, 894 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ].) In the course of his continued investigation, it was reasonable for the officer to seek a field sobriety test of the drunken driver suspect.

1984Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to ‘enable the police to quickly determine whether they should allow the suspect to go about his business *720 or hold him to answer charges.’ ...” (In re Tony C. (1978) 21 Cal.3d 888, 894 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ].) In the course of his continued investigation, it was reasonable for the officer to seek a field sobriety test of the drunken driver suspect.

1968The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment • they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.” (Italics added; see also Gilbert v. California (1967) 388 U.S. 263, 267 [ 18 L.Ed.2d 1178, 1183 , 87 S.Ct. 1951 ].) In People v. Bellah (1965) 237 Cal.App.2d 122, 127 [ 46 Cal.Rptr. 598 ], decided before the enactment of section 13353, the court said that a suspect, in deciding whether to take a field sobriety test, “was scarcely in ne

1968The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment • they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.” (Italics added; see also Gilbert v. California (1967) 388 U.S. 263, 267 [ 18 L.Ed.2d 1178, 1183 , 87 S.Ct. 1951 ].) In People v. Bellah (1965) 237 Cal.App.2d 122, 127 [ 46 Cal.Rptr. 598 ], decided before the enactment of section 13353, the court said that a suspect, in deciding whether to take a field sobriety test, “was scarcely in ne

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2014We conclude (1) the trial court did not err or violate Perez’s constitutional rights by receiving in evidence statements made by Perez during a field sobriety test conducted without warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and any error was harmless; (2) Perez’s trial counsel was not ineffective by failing to object to admission of Perez’s statements made during a jailhouse police interview after a Miranda warning was given; (3) Perez’s trial counsel was not ineffective by failing to object to certain hearsay statements because Perez suffered no 1 The jury convict

1995Cir. 1923) 293 F. 1013, 1014 [ 54 App.D.C. 46 , 34 A.L.R. 145 ].) Having adopted the Federal Rules of Evidence and in particular rule 702 (28 U.S.C.), they use a more liberal test for the admission of scientific evidence like that defined in Daubert v. Merrell Dow (1993) 509 U.S. _ [ 125 L.Ed.2d 469 , 113 S.Ct. 2786 ] (Daubert). 3 Other states have concluded HGN testing to be nonscientific in the Frye sense and consider it no different than the other components of the field sobriety test which do not require a scientific basis for their admission.

1995Cir. 1923) 293 F. 1013, 1014 [ 54 App.D.C. 46 , 34 A.L.R. 145 ].) Having adopted the Federal Rules of Evidence and in particular rule 702 (28 U.S.C.), they use a more liberal test for the admission of scientific evidence like that defined in Daubert v. Merrell Dow (1993) 509 U.S. _ [ 125 L.Ed.2d 469 , 113 S.Ct. 2786 ] (Daubert). 3 Other states have concluded HGN testing to be nonscientific in the Frye sense and consider it no different than the other components of the field sobriety test which do not require a scientific basis for their admission.

1994The employee’s conduct must be viewed as a whole. {Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 970 [ 227 Cal.Rptr. 106 , 719 P.2d 676 ]; Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 218-219.) The Mary M. court reasoned Schroyer was acting within the scope of his employment when he detained Mary, had her perform a field sobriety test, and when he ordered her into his police car.

1994The employee’s conduct must be viewed as a whole. {Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 970 [ 227 Cal.Rptr. 106 , 719 P.2d 676 ]; Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 218-219.) The Mary M. court reasoned Schroyer was acting within the scope of his employment when he detained Mary, had her perform a field sobriety test, and when he ordered her into his police car.

2022“In evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.] The question is whether the statement is the product of an ‘ “essentially free and unconstrained choice” ’ or whether the defendant’s ‘ “will has been overborne and his capacity for self-determination critically impaired” ’ by coercion. [Citation.]” 9 (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).) “ ‘In assessing allegedly coercive police tactics, “[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a st

2022“In evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.] The question is whether the statement is the product of an ‘ “essentially free and unconstrained choice” ’ or whether the defendant’s ‘ “will has been overborne and his capacity for self-determination critically impaired” ’ by coercion. [Citation.]” 9 (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).) “ ‘In assessing allegedly coercive police tactics, “[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a st

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2019DISCUSSION Cooper argues the trial court erred in declining to suppress six statements she made at the police station: • "That her thighs were to[o] big [to] perform a field sobriety test"; • "That her jeans were too tight to perform a field sobriety test"; • "That she could not perform a field sobriety test because she suffered a disability"; • "That when asked the nature of her disability she stated, 'Ain't none of your business' "; • " 'I don't want to take any more tests' "; and • "Her response to the modified Romberg test, when she stated 23 seconds had passed when in fact only 30 seconds

2019DISCUSSION Cooper argues the trial court erred in declining to suppress six statements she made at the police station: • "That her thighs were to[o] big [to] perform a field sobriety test"; • "That her jeans were too tight to perform a field sobriety test"; • "That she could not perform a field sobriety test because she suffered a disability"; • "That when asked the nature of her disability she stated, 'Ain't none of your business' "; • " 'I don't want to take any more tests' "; and • "Her response to the modified Romberg test, when she stated 23 seconds had passed when in fact only 30 seconds

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2019We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ( People v. Gamache (2010) 48 Cal.4th 347 , 385, 106 Cal.Rptr.3d 771 , 227 P.3d 342 ; see also Cunningham , at p. 992, 108 Cal.Rptr.2d 291 , 25 P.3d 519 .) The Fifth Amendment does not bar the admission of "[v]olunteered statements of any kind" ( *518 Miranda , supra , 384 U.S. at p. 478 , 86 S.Ct. 1602 ), nor those otherwise not resulting from interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291 , 299-300, 100 S.Ct. 1682 , 64 L.

2015(E.g., Flood v. Simpson (1975) 45 Cal.App.3d 644, 649 [evidence is competent to support judgment absent objection below].) In mounting an attack on appeal on the PAS tests as a preliminary BAC indicator, the DMV merely notes PAS tests are “not a required chemical test under the Vehicle Code,” citing Vehicle Code section 23612, subdivisions (h) and (i), which 10 describe PAS tests, in the DMV’s characterization, as “only a field sobriety test” because the driver “must still submit to a ‘blood, breath, or urine test.’” The DMV did not offer expert testimony of its own or dispute that PAS tests m