California Driving Under the Influence (DUI) Sections 23152 to 23153 of Vehicle Code
Defenses for DUI in California
It’s a myth that a California DUI arrest automatically results in a California DUI conviction. An experienced California attorney can has many defenses he or she can use depending on the circumstances surrounding your arrest. The defenses can absolutely help you avoid a conviction. We have listed some brief descriptions below of the 10 most commonly used DUI defenses in California.
1. I Was Sober, but Driving Badly
The first thing the state prosecutor over your case will do is focus on your driving behavior. He or she routinely has the arresting officer testify that you were driving in a way that is consistent with a person driving under the influence of drugs or alcohol. Majority of the time this “driving behavior” involves the prosecutor alleging that you were weaving in and out of your lane or speeding prior to your arrest.
An experienced DUI attorney challenges this evidence by cross-examining the arresting officer. During cross examination, your attorney will question him or her about the ways you drove safely and properly. For example, your DUI lawyer will also elicit testimony from the arresting officer includes two important things:
• Majority of traffic violations drivers are stopped for are committed by sober drivers
• The second is that “speeding” and many other violations police officers commonly cited as reasons for a DUI stop aren’t recognized by the National Highway Traffic Administration (NHTSA)
*The NHTSA is the country’s leading authority on driving under the influence which is a part of drunk driving.
Example of a Sober Person Driving Poorly
For example, Jon was driving on the 405 Freeway. He had left his friend’s home after having one alcoholic beverage. As he began to reach over to change out one of his CDs, he drifted into the next lane. Shortly after this happened, a California Highway Patrol (CHP), who observed him driving poorly, pulled over and arrested him for DUI.
Jon’s DUI defense lawyer would have the arresting officer testify on cross examination that he observed Jon driving fine. In other words, he’d have to testify, under oath, that Jon was other was driving safely. The CHP offer would also have to testify that Jon:
• Was driving within the speed limit
• Pulled over as directed by the officer
• Parked without any trouble
• Didn’t have any problems controlling his vehicle
The CHP officer’s detailed testimony would rebut the prosecutor’s evidence by showing that Jon was driving with the caution and safety associated with a sober driver, not a drunk one. In addition, Jon’s DUI defense attorney would have the officer testify that Jon was otherwise driving fine. His lawyer would also have the arresting officer admit that sober drivers routinely drift into another lane because they are distracted. For instance, they are eating, reading, tired, talking on their phones which have nothing to do with drugs or alcohol.
2. Officer Assumed My Physical Appearance was Objective Symptoms of Drunk Driver
Just like your driving behavior plays a huge part in a DUI investigation, so does your physical appearance. The arresting officer will testify that without a doubt you were driving under the influence because he or she observed you acting like a driver with objective symptoms.
The Los Angeles Police Department (LAPD), CHP and other local law enforcement agencies list the above signs and symptoms on pre-printed DUI arrest forms. In fact, the list above are considered “objective signs and symptoms of intoxication.” Thus, the arresting officer can just check off the following symptoms or signs on the printed form without any further explanation:
• Slurred speech
• Red, watery eyes
• The strong smell of alcohol on your breath
• A flushed face
• An "unsteady walk"
A skilled DUI attorney will address all the “innocent” things that could have led to those “objective signs” like:
• Fatigue
• Allergies
• Embarrassment
• Eye irritation
• Nerves
Your attorney would also explain just because the officer smelled alcohol on your breath or you were drinking doesn’t automatically mean you were driving under the influence.
A knowledgeable DUI lawyer will question the officer so he or she will admit that the actual alcohol had no odor. Therefore, the jury will hear testimony that there was no way to show that smell alone whether you had been drinking a non-alcoholic beer, virgin drink or liquor-based cocktail.
3. My Field Sobriety Tests (FSTs) Weren’t Right
The prosecution team over your case includes:
• Arresting officers
• DUI criminalists
• Arresting officers
These team members heavily rely on Field Sobriety Tests (FSTs) to typically prove you were driving drunk. For instance, arresting officer generally testifies that he or she observed you performing poorly on the FSTs. He or she makes the assumption because you were impaired because you weren’t able to follow her or his simple instructions.
Your DUI defense attorney will explain to a jury that there are plenty of things that play a large role in “balance and coordination” exercises used in FSTs. These issues may include nerves and poor coordination. A DUI defense lawyer will also have the investigating officer testify to numerous things you did correctly while performing your FSTs that outnumbered the things you allegedly did wrong. This part of the testimony will the officer’s biasness.
The FSTs that an arresting officer had you perform during your traffic stop will also be questioned. Most arresting officers don’t stick to the procedures in the NHTSA 3 Standardized Field Sobriety Tests (SFSTs). Even if the officers do observe the procedures, they usually don’t take the proper steps to administer or evaluate them.
4. I Wasn’t Given the Proper 15-Minute Observation Period
In California, an officer must continuously observe you for about 15 minutes prior to your “breath test.” During the 15 minutes, you aren’t allowed to drink, eat, belch, smoke or burp. Doing any of these things can move the alcohol from your stomach to your mouth which will cause your blood alcohol content (BAC) to increase.
An experienced DUI defense attorney knows how to discredit an arresting officer's 15-minute observation period. Many officers use this 15 minute period doing paperwork or setting up the breath machine, not observing you as required by law.
5. California's Title 17 Regulations Weren’t Followed
California's Code of Regulations Title 17 governs how DUI breath and blood tests are conducted. For example, the code sets forth all of the requirements necessary for a police officer to maintain the integrity of a breath or blood test. Therefore, Title 17 applies to the:
• 15-minute observation period (as described above)
• Actual administration of blood and/ or breath tests,
• Upkeep of the testing instruments used to test your blood or breath
• Handling, collection and storage of the test samples (when blood or, in some situations, urine, is tested)
When any officer fails to conform to the precise regulations and standards, a skilled DUI defense attorney knows the most effective ways to weaken the entire DUI investigation by calling it your into question.
6. Mouth Alcohol Caused My Inaccurately High BAC Reading
The term "mouth alcohol" refers to alcohol that remains in the mouth. Typically, stationary DUI breath testing machines as well as Preliminary Alcohol Screening (PAS) devices generally collect air from your deep within your lungs. This is referred to as alveolar air or "deep lung air." In some cases, the residual mouth alcohol can interfere with a BAC result. In other words, it can lead to a false high BAC level which could strengthen the prosecutor’s case.
Also other issues can cause a false high BAC result such as:
• Acid reflux, Gastroesophageal Reflux Disease (GERD) and heartburn,
• Any medicines that contains alcohol (such as cough syrups)
• Mouth mouthwash or sprays and/or
• Dental work that causes food to stay trapped between teeth
All of the above causes may also produce mouth alcohol which results in a BAC much higher than really is in your system.
7. My Blood Alcohol Concentration Level was actually on the Rise at the Time of My Arrest
Let’s clarify. There is absolutely nothing illegal about drinking prior to driving as long as you’re not legally drunk at the time. This is true because alcohol takes some time to absorb into your body. Thus, you may drink alcohol without immediately feeling alcohol’s effects.
As your body absorbs alcohol, your BAC level rises. When your BAC level rises, it takes about 50 minutes to do so. However, it can take up to three hours from the time you finish your last alcoholic beverage. It doesn’t matter what your BAC level was when you arrived at the police station or completed a lengthy DUI investigation. You BAC level matters at the time you were driving. That’s it.
8. I Wasn’t Mentally Alert
Police officers routinely testify in court that you showed physical signs of driving drunk, not mental impairment. For instance, an arresting officer usually doesn’t testify that a defendant didn’t show signs of mental impairment unless he or she was undeniably and obviously intoxicated.
The problem here is that metal impairment always supersedes physical impairment. Depending on the specific facts of your DUI arrest, a savvy DUI attorney will prompt testimony to show two things. An individual who shows physical impairment signs, but no mental impairment probably has another reason for his or her driving behavior. In other words, your driving behavior had nothing to do with your BAC being over the legal limit.
9. The Arresting Officer Wasn’t Following Correct Procedure during My Arrest
California expects all drunk driving investigations to be protected by a number of procedures that an arresting officer must follow for you to be convicted of DUI. There are numerous safety measures. For instance, the officer must have probable cause to pull you over during a traffic stop. Also, the officer has to read you your Miranda rights before questioning you and must follow California’s Title 17 regulations.
An experienced DUI attorney knows about these procedures. He or she also knows how to fight to have evidence excluded and/or cases dismissed when procedures aren’t properly followed. For instance, in California DUI attorneys will a Penal Code 1538.5 hearing commonly known as a suppression hearing. This hearing is conducted if the lawyers don’t believe the arresting officer had probable cause to stop you and to have an opportunity to question the arresting officer prior to trial. The goal of the latter reason is to show the weakness in the prosecutor’s case.
10. My BAC Level Wasn’t Correct
You may think it’s pointless to fight a DUI in California when it looks like the arresting officer followed proper procedure and your BAC was over 0.08 percent. However, it’s important to fight your DUI case because an attorney knows that EACH drunk driving case can and should be investigated. You could have the following defenses available to you:
1. The breath-testing instrument used to collect your sample may have had a technical error or wasn’t correctly calibrated
2. Your blood sample may not have gone through the correct “chain of custody”
3. Your personal breath temperature might be higher than the normal range which made the testing machine not accept a proper testing sample
The defenses listed above could be presented as evidence to save you from a DUI conviction.
Driving under the influence is a complex, technical and scientific. A defense lawyer who doesn’t consistently defend these types of DUI cases will place you at a huge disadvantage. He or she may not truly understand the laws and science that make a DUI case unique and possible to successful defend.
If you or a loved one has been arrested for DUI in California, contact us to discuss the facts surrounding the arrest. We are ready to explore all defenses available to you or your loved one.