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This article is a continuence of my earlier articles on Driving Under the Influence offense in Fresno ca and other parts of California.  As a Former Probation Officer DA and a Criminal Defense Attorney with more than 14 years of experience I have the knowlege to properly represent you in your criminal case or DUI case.  I have both the experience of prosecuting and defending DUI cases.  If after reading this blog bost or others you need help don't hesitate to call 559 441-1418. 

  In my earlier blog post I went over the non standardized testing to determine if there is probable cause to arrest for a Driving Under the Infuence. 


When an officer asks a driver to exit a vehicle, the officer is trained to look for the following additional specific signs of impairment.


unusual instructions

cant open the door

leaves car in gear

climbs out car

leans against car

keeps hands on car


Officers administer the three psychological field sobriety tests.  Psychological tests are methods of assessing a persons mental (psychological) and physical impairment.  Most psychological tests use the concept of divided attention to assess a persons impairment. 

Field sobriety tests that simulate the divided attention characteristics of driving have been developed and are being used by law enforcement agencies nationwide. 

These tests attempt to simulate the same mental and physical capabilities that a person needs to drive safely. 

information processing

short term memory

judgment and decision making


steady sure reactions

clear vision

small muscle control

coordination of limbs



The three Standardized Field Sobriety Tests tha tthe police use are the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn Test, and the One Leg Stand Test. 

The Horizontal Gaze Nystagmus test is administered first.  This test is considered to be the most reliable of the three standardized tests the police are  trained to do.  The police are trained that it is 77 percent accurate for people above the level of .10. 

Nystagmus is defined by the involuntary jerking of the eyes.  Nystagmus is a natural and and normal phenomenon.  Alcohol and certain drugs do not cause this effect.  They merely exaggerate or or magnify the effect. 

There are over 40 different kinds of Nystagmus and many of them look the same as the Horizontal Gaze Nystagmus that the police are looking for as evidence of impairment.

The police are not trained to distinguish between different kinds of Nystagmus.  However, some officers will testify that they are. 

it is common for the officer to misdiagnose some other form of bystagmus.  Call it Horizontal Gaze Nystagmus, and use it as evidence against a  person.


There are three general categories of Nystagmus:



Pathological Disorders and Disease. 

Vestibular Nystagmus

Vestibular Nystagmus is caused by the movement of or action of the vestibular (inner ear)  system. 

Rotational Nystagmus occurs when a person is spun around or rotated rapidly, causing the fluid in the inner ear to be disturbed.  If it were possible to observe eyes of a rotating person, they would be seen to jerk noticeably. 


Post rotational

nystagmus is a closely related to rotational nystagmus when the person stops spinning the fluid in the inner ear remains disturbed for a period of time. , and the eyes continue to jerk.  This could be observed in a person after a rollover accident or a spin out. 


nystagmus occurs when the fluid motion in the cannals of the vesibular system is stimulated by temperature (cold in one ear and warm in another). 

positional alcohol nystagmus (pan) occurs when a foreign fluid such as alcohol that alters the specific gravity of the blood is unequel concentrations in the blood and vestibular systems. 


This article will be an extension of the earlier articles that I have written regarding DUI's.  At the Law office of Gerald Schwab.  I represent People not cases the reason I do this job is to help people get through what could possibly be the worse days of there lives.  After being arrested you will have many questions you need experienced counsel.  I have both prosecuted and defended DUI case in Fresno and severl other couties including Madera, Fresno, Tulare, Merced, Monterey, and many more.

With a DUI case the main thing you are looking at is wether the proper paperwork and procedure was used, for the DUI arrest. 



To gain evidence, officers are trained to use three questioning tactics while the driver is still behind the wheel.  These tactics are:

1. Asking for two things simeltaneously

2. Asking interrupting or distracting questions

3. Asking unusual questions


These tactics are based upon the concept of divided attention.  They require the driver to concentrate on two or more things at the same time.  When an officer asks for two things simultaneously he might ask the driver to produce both his drivers license and the vehicle registration. 

The officer is then trained to look for the following evidence of impairmen

forgets to produce both documents

produces documents other than the ones requested

fails to see the license, registration or both while securing them

fumbles or drops the wallet, purse, license, or registration

is unable to retrieve documents within fingertips.


When an officer asks interrupting or distracting questions he might attempt to divide the drivers attention between searching for the license or registration and answering a new question. 

While the driver is responding to the request for license registration or both you ask unrelated questions "What days is it" or "Where are you coming from"

The officer is then trained to look for the following evidence of impairment. 

ignoring the question and concentrates only on license or registration search

forgets to resume the search after answering question

supplies a grossly incorrect answer

When an officer asks unusual qeustions it is employed after you have obtained the drivers license and registration

For example while holding the drivers license the officer might ask what is  your middle  name. 

There are many such questions which the driver mormally would be able answer quickly and easily but which might prove difficult if the driver is impaired, simply because they are unusual questions. 


For example a driver may respond to the question about the middle name by giving a first name.


There are three non-standardized sobriety test that an officer may ask a driver to perform prior to performing the standardized field sobriety test. 

Alphabet the driver is required to recite part of the alphabet.  The driver is instructed to begin with a letter other than A and stop at a letter other than Z.  This divides the drivers attention becuase he must concentrate to begin at an unusual starting point and remember where to stop. 

Count Down

The driver is asked to count out loud 15 or more numbers in reverse sequence.  For example, the driver might be told to "count out loud backwards.  Starting with the number 68 and ending with the number 53. 

Finger Count

The driver is asked to touch the the tip of the thumb to the tip of each finger on the same hand while simeltaneously counting up to one two three four then to reverse the direction on the fingers while simaltaneously counting down four three two one this is another divided attention task

I will continue in my next post on this subject.

As per my earlier article  I will be continuing my discussion of Drving Under the Influence law in Fresn Ca, and elsewhere in California. 

If you were arrested for Driving Under the Influence give our office a call and we can help you I have both prosecuted and defended DUI cases and have been in practice for more than 14 years.  

As stated in earlier article most DUI procedures are supposed to be the same for all states and all police so that the standards are not different.  Therefore, there are some common things to look for

PHASE One the pullover or why was I pulled over.

Officers are trained to observe the vehicle in operation and nota ny initial cues of a possible DUI violation.

Officers are trained that drivers that are impaired often exhibit certain effects or symptoms of impairment.  These include:

slowed reactions.

impaired judgements/willingness to take risks

impaired vision

poor coordination

The National Highway Traffic Administration sponsored research to identify the most common and reliable initial driving indicators of DUI

This research identifified 24 cues, each with an associated high probability that the driver exhibiting the cue is impaired. 

1. Weaving

2. Weaving across lane lines

3. Drifting

4. Straddling a lane line

5. Swerving.

6. Almost striking object or vehicle.

7. Turning with a wide radius

8. Stopping problems (to far, to short, to jerky)

9. Unnecessary acceleration or deceleration

10. Varying speed

11. 10 miles an hour or more below the speed limit.

12. Driving with headlights on at night

13. Failure to signal or signal inconsistant with action

14. Driving in opposing lanes or wrong way on one way.

15. Slow response to traffic signals.

16. Slow response to traffic signals

17. Stopping in a lane for no apparent reason

18. Following to closely

19. Improper or unsafe lane changes.

20. Illegal or improper turn.

21. Driving on other than designated roadway

22. Stopping innapropriately in response to officer

23. Innapropriate or unusual behavior (throwing objects, aruging, etc.)

24. Appearing to be impaired.



Driving is a task that requires your attention to be divided into sub tasks. 


controlling accelerator


controlling break pedal.

operating the clutch (if applicable)

observing other traffic

observing signal lights, stop signs, other traffic control devices,

making decisions (whether to stop, turn, speed up, slow down, etc

many other things

Divided Attention means concentrating on more than one thing at a time.

When a driver is under the influence of alcohol and/or drugs his ability to divide attention becomes impaired.  This inability to divide attention causes drivers to exhibit the 24 driving cues that police look for. 


The second task for the officer during phase one is to observe the manner in which the response to the signal to stop and to note any additional evidence of DUI violation. 

During this phase the officer is trained to look for the following

1. tries to flee

2. no response

3. slow response

4. abrupt swerve

5. sudden stop

6. strikes curb

7. new violations



The officer attempts to gather evidence of impairment by observing and interviewing the driver.  The officer may also ask the driver to perform non standardized test prior to him asking the driver to perform standardized testing. 

Officers are trained to use sight, hearing, and sense of smell to note additional evidence during there observation and interview of the driver. 

Officers look for the following specific signs of impairment. 

bloodshot eyes

soiled clothing

fumbling fingers

alcohol containers.

drugs or drug paraphanalia

bruises bumps or scrapes

slurred speech

admission of drinking

inconsistant responses

unusual statements

To gain evidence officers are trained to use three questioning tactics while the driver is still in the vehicle.  these three are

1. asking for two things simultaneously

2. asking interrupting or distracting questions

3. asking unusual questions.

These tactics are based on the concepts of divided attention.  They require the driver to concentrate two or more things at the same time.


I will further go into DUI arrest in a later post please give me a call if you have questions.





If you have been arrested for DUI in Fresno ca or in other parts of California give us a call at 5594411418.  As a former probation officer, deputy da that has tried cases on the District Attorneys side and having been a Defense Attorney for more than 14 years of trying cases in court including DUI cases, I have the ability and know how to properly handle your DUI case.


What many people do not realize about DUI cases is that they can be beat at trial.  Many people think that if certain things are present such as a high BAC then you should just plead guilty.  Many times that is not true.  DUI cases are much more complex than they look on the surface. 




For DUI cases the proper procudures and paperwork must be followed.  Much of DUI defense especially at trial depends on holding the police officer accountable for any deviation from the proper procedures.  Sometimes I see officers conducting DUI investigations that have no business conducting these investigations because they lack the proper training to properly conduct a DUI investigation.


A lot of DUI training for police officers has been nationalized meaning there are national standards manuels etc. that lay out for the officer the standards for conducting a proper DUI investigation.  Many of these standards are in the NHTSA manuels.  These are the actual manuels that officers use to train police officers.

DUI investigation procedures are supposed to be standardized across the United States.  In theory, all officers should conduct DUI investigations the same way.  This rarely happens.

The National Highway Safety Administration (NHTSA) has developed a student (participant) training manuel that is used to train all police officers in the country.  There are a total of 14 NHTSA TRAINING MANUELS  used across the country by law enforcement officers.

If an Attorney knows those manuels has those manuels and knows how to properly cross examine on those manuels then that could at trial actually eliminate the need to obtain an expensive expert.  This not only saves the client money it increases the chances of winning the case nothing makes an officer look worse  than not following his own guidelines.

 I have seen officers on taped police stops actually do just about every single thing wrong on the stop up to and including lying about the reason for the stop.

For example pulling someone over and immediately giving the person a preliminary breath screening test.  This is only supposed to be done after observing the person for a 15 minute time period.  I have seen the officer not watch the person for a period of 15 minutes like they should and instead stop and talk to another officer on his cell phone during a stop. 

I have seen officers give such contradictory and difficult FST or Field Sobriety Test that person was almost guaranteed to fail 

The manuels used to train officers even go into detail about in which orde the fst's are supposed to be given.  And I have seen officers completely disregard how to do these tests and the manner in which they are supposed to be given.

I have seen officers not zero the breath test machine that measures alcohol in your blood and do many different mistakes such as this.  These are the things we look for in evealuating your case. 

If you have questions give us a call we can go over some of the areas such as these listed above and tell you wether you have a case that should be fought and how to fight the case.



Penal Code 246.3 PC is California's "negligent discharge of a firearm" statute.  The statute prohibits wilfully firing a gun or bb device in a grossly negligent manner.  Wilfully almost always means on purpose. 

In a grossly negligent manner means in a way that could result in death or serious bodily injury. 

Enacted in 1988, the laws purpose was to deter people from shooting their guns into the air. 

The offense may be charged as a Felony or a Misdameanor. 

If after reading  some more about this law below you need more information give us a a call at 559-441-1418. 

In order to convict you of this crime the following must be shown.

1. That you willfully fired a gun or a bb device

2. That you did so in a grossly negligent manner

3. That the discharge of the gun could have resulted in a person death or serious bodily injury.


lets take a closer look

Willfully almost alawys in the law means on purpose.

you act willfully when you committ an act willingly or on purpose it does not matter if you dont intend to break the law as long as the act is intentional.


A "Firearm" is "any device", designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.

BB device a bb device is any instrument that expels a projectile, such as a bb or a pellet, through the force of air pressure, gas pressure or spring action. 



When you act in a grossly negligent manner it means that you act in a reckless wauy that

1. creates a high risk of death or seious bodily injury

2. demonstrates a disregard for human life or indifference to the consequences and

3. is such that a "resonable" person would have recognized the nature of the risk.


It is not enough that you willfully discharge a firearm in a grossly negligent manner.  before the prosecution can convict you of this crime you of this offense they must prove that you did so in a manner which could lead to death or serious bodily injury.



You are excused from otherwise criminal conduct when reasonably act to protect yourself or others from suffering imminent bodily harm.

This occurs when you.

1. You reasonably fear that you or someone else is about to suffer imminent bodily harm.  and

2. firing your gun is reasonably way to prevent harm. 


You must be acting on purpose to be found guilty of this crime if you accidentally fired then that is not enough for a conviction and is a valid defense. 


Referring back to an earlier point, if you discharge your firearm in an isolated area where there is no risk of injury or death, your act doesn't rise to the level of gorss negligence. 


Penal Code 246.3. is a wobbler a "Wobbler" is an offense that can be charged a either a Felony or a Misdameanor, depending on your criminal history and other factors.

A conviction for this offense can result in your loss of gun rights.  if you are convicted of a Felony all Felons are prohibted from possessing a firearm.

if you are convicted of a Misdameanor than you must wait out a ten year period before owning a firearm. 

A felony conviction for this offense is also a serious felony for the purposes of the three strikes law and will count as a strike.


If you have any other questions about this law don't hesitate to call.


This article will deal with the crime of participation in a criminal street gang.  This is completely different from the sentencing enhancemnt.  If you are charged with a gang crime you need experienced representation.  Many times people hire Attorneys that do not have experience in  the criminal street gang laws.  The Lawyer has never even tried a gang case.   This is not acceptable.  The gang statutes are very tricky and require experience. 

As someoene that has tried several gang homicide and attempted homicide cases, and handled hundreds of Gang cases, I have the knowlege to properly represent you. 

If after reading this article you have any more questions don't hesitate to call 5594411418.


There are actually two parts to Penal Code section 186.22 A .  The first part deals with the crime of "engaging in gang activiity" this is actively and knowingly participating in a criminal street gang.

In order to convict you of this offense the prosecutor must prove the following three facts.  (otherwise known as elements)

1. That you actively participated in a gang

2. Knowing that its memebers "engage in a pattern of criminal activity"

3. that you willfully "promoted furthered or assisted in felonious conduct by gang members.


The offense of active and knowing participation in a criminal street gang punishes act of being involved with a gang irrespective of any other crime.  This law targets individuals who has the intent and objective to  further promote, or assist a gang in its unlawful conduct. 

Furthermore, the law not only applies not only to the person that personally and actively committs the crime but also to anyone who aids and abbets that individual.


Many times in Gang cases the "Active" participation element along with the intent element are where the most action or litigation occurs.

Many times a person who has either aged out of a gang or no longer "actively participates" in a gang are charged with this crime.

This is even though the person has  not had contact with Law Enforcement for several years, was not wearing gang attire when arrested, and has not been arrested for several years he will be arrested for actively partiicipating.

There is no computer program that keeps track of every time a gang member joins or leaves a gang.

Many members simply age out of the gang or its gang activities; however they may still have some friends with possible ties to a gang

Some gang members simply hang out with other gang members and are not active members.

They may not have committed any crimes or been arrested with other gang members. Gang Membership is a fluid concept many gang are not higly structured.  They may have only a handful or more hardcore members while most members are not as involved.

For a person to be concicted of this gang crime they must be an active member.   Therefore, they cannot be the person that simply hangs out with other gang members or parties at the same parties with them or even hang out with the other gang members.  They must actively participate.

This could be how many times they have been stopped with other gang members, do they were the exact colors of that are associated with the gang, do they admit to being actively involved.  Have other members debriefed and explained how involved they were.  These are all things to take into consideration.

Also how long has it been since all the above things happened? in other words did all the things discussed above happen ten years ago? if so then as stated aobve the person may have already aged out of the gang and not be actively involved anymore.

As you can see these are complex issues and you need an experienced Attorney that has tried these type of gang cases if you have questions give us a call 559 441 1418.

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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418