15 Top Challenges To Beat California DUI’s

Contrary to many common beliefs there is no such thing as an open and shut California DUI or a perfect DUI arrest.  Prosecutors can add enhancements such as car accidents, elevated alcohol over .15%, or being in such a poor condition that the accused can barely stand or cannot even perform field sobriety tests.  But yet, despite these excessive types of impairment there are usually still a number of DUI Defenses that can be raised and challenged that can dismiss or significantly reduce a DUI charge.  This is why its so important to speak to an experienced criminal defense attorney at Ross Law Center before making a decision that can effect your personal record, your drivers license, and in some cases even a persons career.  A top Lawyer in San Diego Vincent Ross explains, “ I have seen first hand that people walk into court and think the evidence is so overwhelming that they just plead guilty on advice from a friend or family member because they feel there is nothing that can be done.  This is actually rarely the case, even in the most sever of cases there are several different factors we use to evaluate a persons case to make sure they are making the best decision.”  In this article Ross Law Center will review and summarize 15 defenses that are commonly looked at when defending a person for DUI.  If you have additional questions then we welcome you to call Ross Law Center and set up your free initial consultation where we can address the issues specific to your case.  Remember that each person is unique and so is each case.  At Ross Law Center we will tailor a defense that is specifically aimed at getting you the best result.

1.  California Breathalyzers are Subject to Errors

California DUI breath tests have long been scrutinized for their accuracy and many expert witnesses have attacked the reliability of these machines.  Examples of these include (not limited to) instrument malfunction and calibration, improper technique used by the officer of the person administrating the test, your mental condition, a persons diet such as GERD, and even outside factors such as radio interference.

Obtaining a sample of a persons breath for example by way of an Intoxilyzer        8000EN unit is still used by most agencies as the most common method to obtain a persons blood alcohol level, however, its not always an accurate one.  The basic fact is that a DUI breath test does not directly measure the amount of alcohol in the subject’s blood.  This type of device actually measures the amount of alcohol present in the person’s breath and then thru a scientific formula converts that amount to determine the amount of alcohol in the person’s blood.  This type of test using a subject breath is susceptible to a wide array of outside variables that may influence an erroneously high blood alcohol reading.

2. Mouth Alcohol

The design of the breath test instruments is to read a sample of the subjects breath and capture the sample from your deep lung tissue known as alveolar air.  During the test you may have residual alcohol that lingers in a persons mouth if the subject had dental work performed and small amounts of alcohol soaked food in your teeth, or the person regurgitated or burped prior to or during the test.  Also, if you suffer from GERD, heartburn, or you have acid reflux, these can also impact the accuracy of the test.  The breath machine may capture this more pure “mouth Alcohol” rather then sampling aveolar air and as a result may trigger a higher or false blood alcohol reading.  Its important to discuss these factors during your consultation.

3. GERD, Acid Reflux, and heartburn Contamination

GERD is the acronym for Gastroesphageal Reflux disease, this condition as well as other conditions such as acid reflux, and heartburn are all medical symptoms that can possibly create mouth alcohol situations.  These conditions can create and produce the flow of acid that moves from the stomach into the mouth.  When these conditions are present just before or during a DUI breath rest, the alcohol that is moving from your stomach to your mouth can “disguise” the deep lung air that the Breathalyzer is intended to measure.  As a result a persons actual blood alcohol level can be falsely higher on a breath test.

4. Low Carbohydrate, high protein diets, Diabetes or Hypoglycemia

Certain types of diets that are low carb such as Atkins-style eating behaviors and a persons medical condition such as diabetes and hypoglycemia have been shown to be actually capable of self producing isopropyl alcohol.  The reason behind this is because the person’s body is basically deprived of carbohydrates and thus the body turns to stored fat for energy.  The process of the body converting stored fat to energy produces what is known as ketones.  When Ketones are broken down and eliminated from the body through either urine or breath the ketones convert into isopropyl alcohol.  In California, most of the instruments used in breath tests are not sophisticated enough to tell the difference between self produced isopropyl alcohol end the bi product of alcohol that we drink called ethyl alcohol.  In conclusion as a result, low carb diets, diabetes, or hypoglycemia can actually trick a California breath test into producing a falsely high blood alcohol reading.  Its important to discuss these details carefully with your attorney if any of these conditions are present in your case.  

5. Your BAC at the time of driving vs. when you take the test

This approach is most commonly known as a Rising Blood Alcohol.  Alcohol absorption rate takes on average between 50 minutes to 3 hours, to be absorb into your system.  If for example you had just finished drinking alcohol and shortly thereafter you were stopped for suspicion of DUI the alcohol that you drank just a short time prior may not have reached its peak, thus you would have a “rising alcohol.”  Under this scenario since you blood alcohol is still rising during the officers investigation and this can give a false high BAC at the time the police administer the DUI breath test.  The basic philosophy is the BAC at the time you give your test which could be several minutes later or even hours is irrelevant because it is not a true indication of your BAC at the time of driving.  Just because the persons blood alcohol level may be over the legal limit when he/she submits to the test does not necessarily mean that was your BAC at the time of driving, particularly if your alcohol was on the rise.  Its easy for prosecutors to assume that every defendant was beyond their peak absorption when they submitted to the DUI breath or blood test.  At Ross Law Center we know, however, this is not always the case and that rising alcohol can play a legitimate defense in DUI cases.  This “rising alcohol” defense can be applied to both blood and breath testing cases. 

6. California DUI Blood Testing

There are several reasons and a variety of factors that could taint or raise suspicion of defense as a result of DUI blood tests.  A few examples are blood fermentation, improper storage of your blood sample, and blood contamination are just a few reasons why your blood result tests may not be accurate.  Depending on the circumstances surrounding the collection, documentation and the storage of your DUI blood test sample, your DUI defense lawyer will carefully examine your case to determine if your blood results can be excluded from evidence known as suppression.

7. Title 17 Violations of the California Code

The State of California has established regulations set forth for the collection, storage, and analyzing of DUI chemical tests.  These requirements are very specific to the regulations in collecting samples and any compromise may have an effect on your DUI blood alcohol results.  For example, the blood results that were collected were not obtained by a specialist trained technician or phlebotomist then the attorney may file a motion for suppression.  A second example would be if the DUI breath instrument that was used in the test was not properly tested and maintained for calibration according to the Title 17 code might also be called into question.

8. Probable Cause of the Initial Stop

The fundamental foundation of a DUI is the probable cause of the stop.  If the arresting officer didn’t have probable case for the stop, detain, question, and then arrest you for DUI the case may be dismissed out of court.  Before the arresting agency can stop your car and detain you in a DUI investigation or arrest you they must have established that there was reasonable suspicion to believe you were driving under the influence of alcohol or drugs.  This reasonable cause of the stop is the standard known as probable cause.   If the arresting officer cannot establish that he had clear and eminent probable cause for the stop usually based on an individuals driving behavior then the evidence that is obtained as a direct result from the stop may be suppressed.  If a judge grants a suppression it basically means that the prosecutor would not be able to use that evidence against you in a court of law.  As a result, if the evidence was gathered without probable cause these usually result in a reduced plea offer or even a dismissal of the DUI charges.

9. Miranda Rights Not Read 

Despite what you might hear or even see on TV your Miranda rights are not always a requirement or even required in a California DUI arrest proceeding.  There are however some exceptions to this primary rule.  For instance, your Miranda rights may be required if after you have been arrested, the officer begins custodial interrogation.  This type of interrogation would take place when the investigating officer asks you specific questions that would be designed in such a way to solicit an incriminating response after you have already been arrested for a California DUI. 

10. Field Tests are not accurate in determining impairment

California Field Sobriety Tests are not always accurate indicators that a person is driving or in actual physical control of a vehicle while under the influence of alcohol or drugs.  Some studies have indicated that even the best FST’s are only about 60 to 70 percent accurate in determining impairment.  There are many factors, which can lead a person to do poorly on FST’s, and none having to do necessarily with the presence of alcohol or drugs.  Additional factors that we will carefully determine are: uneven pavement, past injuries, poor lighting, poor weather conditions, footwear such as high heels or work boots, stress, fatigue, and officer intimidation and heightened anxiety. 

11. Built in errors with Chemical Test Equipment

In the legal and expert community there is an overall consensus that the devices used in measuring a persons blood alcohol level have a margin of error of between 0.005-0.02%.  With this stated, its important for a skilled California DUI Lawyer to access the type of device used in the testing process and to challenge the accuracy of the blood alcohol level.  It’s especially important in cases where the subjects blood results are between .08%-.10%, since they may actually be lower then .08% which is required by Vehicle code VC23152(b).

12.  DUI Checkpoints Must Meet Requirements

If you were arrested at a DUI checkpoint, there are several factors and a variety of issues that a skilled attorney at Ross Law Center will investigate and research for you.  There are strict requirements that law enforcement must comply with during the establishment of a DUI checkpoint, as well as procedures that must be followed during the DUI process.  These requirements are in direct relation to the operation of the checkpoint.  Some of the examples may include (but not limited to) the following:

* Having the correct and proper supervision of officers to oversee the checkpoint

* Confirming that the officers in the field are following the correct formula that was predetermined before the checkpoint as to which cars would be randomly stopped.

* Confirming that the advertising of the roadblock was properly published.

These are just a few examples of the requirements, it is important to discuss any Checkpoint case with Ross Law Center to leverage and effectively challenge your DUI arrest and work to get you the best result possible.

13. Radio Frequency Can Influence False High Readings

The presence of certain types of  “Radio Frequencies” can produce or emit an interference known as RFI.  If these frequencies come into contact with certain types of machines that are used to measure a persons BAC they may produce an erroneously high or false BAC reading.  The main reason for this is because almost all types of electronic devices and even those used to measure and analyze a person’s breath sample are prone and susceptible to RFI or even electromagnetic interference.  The most common devices that a person may come into contact with if arrested for DUI would include RFI interference from:

* Officers patrol cars, ambulances, or fire department

* Cellular phones, I-pads, police or public radios

* Microwaves

* Fluorescent lighting, etc.

The list above is just a few examples of such devices that may interfere with certain types of equipment.  The presence of these items may give a false high reading of the persons BAC and should be examined by a skilled attorney.

14. You were not Driving

The police have to prove more then you were just under the influence of alcohol or drugs.   The definition is that you were under the influence while operating a motor vehicle.  This can become a lot more complex for example if you were involved in an accident but there was no witness that actually saw you operate the motor vehicle.  Even more common is if the police came upon you and found you were parked in your vehicle.  Contrary to many peoples belief that if the keys are in the ignition then you were driving.  The Law Firm at Ross Law Center is especially skilled in handling these types of cases.  It will much more difficult for the prosecutor to prove the element of “driving” if these types of examples exist in your case.  Of course, it also depends on statements that you give the officers during their investigation.  If the District Attorney or City Attorney cannot prove you were driving then they cannot charge you with DUI.

15. Police Misconduct and Mistakes

If you can demonstrate or show evidence of police misconduct then your DUI charge may be dismissed, even if you are actually driving with a BAC over .08%.  This is because there is a process of professional conduct and procedures that law enforcement must adhere to and follow.  Some of the common examples are:

* Police or law enforcement Title 17 procedures were not complied with

* DUI discovery and/or reports are not accurate

* Courtroom testimony and statements are not truthful

If any of these conditions exist or law enforcement fabricated or manipulated their statements or evidence, then it might be suppressed.  Depending on how severe the misconduct or untruths are the case may be reduced or even dismissed in some circumstances.

In closing, there are many defining elements when reviewing a DUI case, a skilled attorney is trained to look for these elements and to use them to the clients advantage.  The earlier you discuss your case the more likely you are to remember key facts and components that could help you later in your case.  Call Today to schedule your free consultation.



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