In California, DUIs are considered very serious offenses; this is true even if you there are no aggravating factors attached to your DUI. It is essential to have an attorney with ample experience representing clients in DUI cases. The reason it is important to have competent counsel on your team is because over the years, DUI attorneys develop an intuitive understanding of what defenses will work in any given situation; and are thus, much more capable of effectively raising the proper defenses which could result in the charges against you being dropped, the Prosecution offering a better plea deal than another attorney would have obtained, or in the unfortunate situation where a conviction occurs – obtaining reduced penalties. All of this is true on a simple DUI charge. This becomes even more important when you are facing enhanced DUI. When analyzing an individual’s case, there are a number of factors the attorneys at Los Angeles DUI Attorney Law Firm utilize in order to determine the best strategy to employ in an effort to obtain favorable outcomes for our clients. Below, we set forth the 15 best defenses that we have found in defending our clients against all manners of DUI charges. At Los Angeles DUI Attorney Law Firm, we will tailor these defenses to fit the specific facts of your case. The top 15 defenses we utilize are set forth below.
1. Breathalyzers are not infallible devices.
The accuracy of breathalyzers has been questioned for as long as breathalyzers have been in use in California. It is always a strong argument to attack the reliability of the breathalyzer device; if your attorney can insinuate that the breathalyzer was malfunctioning at the time it was used to obtain your BAC, or that it was calibrated improperly, or was applied in a way that isn’t accordance with proper procedure; it is possible to have the results of the test thrown out entirely. As mentioned throughout this site, often times a conviction for a DUI is premised on a combination of the results of a breathalyzer test and the testimony of the arresting officer. If either one of those pieces of evidence fail, the Prosecutor will have a substantially more difficult time proving their case against you.
The most commonly used breathalyzer device to obtain breath samples is the Intoxilyzer 8000EN. This device does not always yield an accurate measurement of a Defendant’s BAC since the test yields what is known as an “indirect result.” The device utilizes an algorithm, which approximates the amount of alcohol in your system; it is easily challenged in many circumstances. As such, there are a large number of factors, which if present, can cast doubt on the reliability of the results. Unreliable results make your attorney’s task much easier.
The way breathalyzers work is by capturing air from deep in your lungs. This is known as “alveolar air.” If the breathalyzer measures anything other than your deep lung air, the test can be found invalid. If you have had dental work performed on you in the recent past, the device may detect traces of alcohol. It is common for the test to pick up on mouth wash, and produce an artificially inflated value for that person’s BAC. Much like the argument that the device itself was faulty as set forth in the first defense, this defense focuses on what the device measured. A similar defense has to do with gastrointestinal disorders such as GERD, acid reflux, and heartburn contamination.
3. GERD, acid reflux, and heartburn contamination
Gastroespangeal Reflux, which is commonly referred to as GERD, along with acid reflux and heartburn have the end result of potentially tainting the air sample utilized by the breathalyzer. The reason for this is that GERD produces a flow of acid to the mouth from the stomach. The practical effect of this is that someone of acid will be measured by the device as deep air comes through your esophagus. As a result, the device may detect alcohol, even though it is not present, causing the test to yield an unusually high BAC. If you suffer from GERD or acid reflux, your attorney can raise that information in your defense.
4. Low carbohydrate or high protein diets, diabetes, and hypoglycemia
In today’s society, there are many different diets that people adhere to. Some diets, such as high protein diets, or low carbohydrate diets; the Atkins diet for example, have been shown to produce something called “isopropyl alcohol” in the diet. The breathalyzers utilized by police departments are not advanced enough to differentiate between alcohol created by the body in response to certain diets, and alcohol that was recently imbibed. As a result, you may trigger a false positive for being over the legal limit. If this is the case, your attorney can challenge the results of the test on the grounds that it was measuring something other than actual alcohol content on your breath, and have the results excluded from evidence.
5. Your BAC was lower at the time you were driving than it was at the time of the test
A very popular line of defense in some cases is known as the “rising blood alcohol defense.” The general human absorbs alcohol into their body between 50 minutes and 3 hours after the alcohol is consumed. If you are pulled over a small amount of time after you have consumed a drink, the alcohol will not have been completely absorbed by your body; this could explain a high BAC that is inaccurate. The argument goes that it is not enough to say that the BAC reading was above the legal limit when the test was conducted, it is not follow that they had the same BAC while they were driving their vehicle. Prosecutor’s often make the mistake of arguing that the individual’s BAC at the time they submitted to the breathalyzer is identical to their BAC while the Defendant was driving. The attorneys at Los Angeles DUI Attorney Law Firm know this is not true, and with skilled advocacy, raising this defense in Court can yield impressive results.
6. Blood Testing in California
Much like the breathalyzer test, blood tests to determine the BAC of a person suspected of driving under the influence can be challenged on many levels as well. Some of the arguments that can be made include that the blood sample was not properly stored, and tainted the results of the test. Other arguments also centering on the samples themselves include: fermentation of your blood, or that the sample was contaminated somehow. A skilled attorney will review all information as it relates to the drawing, storing, and testing of your blood, and will cast doubt on the results of that test.
7. Violations of Title 17 of California Code
California has made a number of laws regulating the use of blood to test for someone’s BAC. If any of those regulations are not followed properly, an argument can be made that the test results are suspect. Your attorney will review the entire process from start to finish, and if anything is not in line with the laws of California, your attorney will file what is called a motion to suppress. If the motion to suppress is granted, the test results will be excluded from evidence, and the Prosecutor will be forced to come up with another way to prove you were over the legal limit while driving. Bear in mind, that skilled attorneys use the rules designed to protect individuals accused of a crime to exclude evidence as well as their years of experience persuading juries of their version of the story to obtain proper results.
8. Lack of probable cause for the initial stop
The U.S. Constitution provides many protections to the citizens of the United States against unreasonable intrusions of their person. One of those protections requires that an officer have what is called “probable cause” to initiate a stop. If the stop was for suspicion that the Defendant was driving under the influence of alcohol or drugs, he officer must have reasonable, articulable suspicion that the person was driving under the influence; and unsubstantiated “hunch” is insufficient as a matter of law. If you are stopped without probable cause, all subsequent evidence must be excluded. Many people dislike the exclusionary rule, but it is designed to protect citizens from overzealous police officers who violate peoples Constitutional rights in the hopes of uncovering evidence of wrongdoing. The Constitution is designed to protect citizens from the government, not provide officers with carte blanche to do as they please.
9. After Arrest, you were not read you Miranda rights
It is a common misconception that an officer must read you your Miranda rights prior to asking you any questions. This is not entirely true. An officer’s duty to read you your Miranda rights prior to a “custodial interrogation.” A custodial interrogation occurs when you are under arrest, and the officer is asking questions designed to elicit incriminating responses. If the officer elicits incriminating responses from you after you have been arrested, but before reading you your rights, those statements must be excluded from evidence. Without those incriminating statements, the Prosecutor will have a difficult time proving their case against you.
10. The officer’s field tests inaccurately showed impairment
Generally speaking, an officer who suspects someone is under the influence will conduct what is called a “field sobriety test.” (FST) This is the well-known, stand on one foot and touch your nose, or recite the “a, b, c’s backwards. Studies on the FSTs have yielded concerning results; they are only 60 -70% accurate when used to determine whether or not someone is impaired. There are a number of factors that can cause an unimpaired person to appear impaired when performing the FST. Clothing, weather, lighting, fatigue, stress, or even anxiety. Armed with all the facts surrounding the FST the officer conducted on you to determine that you were impaired, a skilled attorney can present the factors to a jury in a manner that will highlight the inherent flaws with FSTs
11. Some equipment used for chemical testing is inherently flawed.
It is generally accepted fact in the legal community that devices built to measure someone’s BAC have a “standard deviation of 0.005% to 0.02%. Considering that the high range is one fourth of the legal limit, it is appropriate to challenge any device that produces a BAC that would be under the limit if the standard deviation were applied. Having an attorney from Los Angeles DUI Attorney Law Firm on your side to argue the inherent flaws in the device the Prosecutor is seeking to utilize in an effort to obtain a conviction is a strong defense in any DUI case.
12. The DUI checkpoint failed to comply with the California Supreme Court requirements
The California Supreme Court has ruled that DUI checkpoints are a Constitutional exercise of administrative procedures, but scaled the decision a step back from a full blown acceptance. To do this, the Court imposed certain requirements on police departments that seek to utilize the DUI checkpoint mechanism to deter potential drunk drivers:-There must be a supervising officer on site; ensuring proper procedure is followed; -There must be a neutral, predetermined method for who to stop that avoids any possibility of bias. An example of this would be that officers will stop every third car.-The Police Department must advertise the time, and location, of the DUI checkpoint a week before they conduct it.
- There must be a supervising officer on site; ensuring proper procedure is followed;
- There must be a neutral, predetermined method for who to stop that avoids any possibility of bias. An example of this would be that officers will stop every third car.
- The Police Department must advertise the time, and location, of the DUI checkpoint a week before they conduct it.
13. High readings can be caused by the presence of items mitting radio waves.
Some radio frequencies can have an impact on the readings of a breathalyzer; this is known as radio frequency interference (“RFI”). RFI can affect the accuracy of the readings on some machines designed to test BAC, and can cause unusually high BAC’s to be reported. The most common devices that emit RFI include:
-Police cars, fire trucks, and ambulances.
-Cell phones and iPads.
14. You were not driving the vehicle
To convict someone of a DUI, the Prosecution must obviously prove that you were actually driving the vehicle when you were intoxicated. Frequently, the arresting officer only has circumstantial evidence that the person was driving the vehicle while under the influence of alcohol or drugs. A common example would be where someone under the influence is stopped by officers at a gas station, where their car is at the pump. A skilled attorney will inform the jury that it is the Prosecution’s job to prove every element beyond a reasonable doubt, not the Defendant’s. Simply being intoxicated and around a vehicle belonging to you should not be enough to sustain a conviction. Prosecutor’s often dislike this line of reasoning, since they wonder who else could have been driving the vehicle; this is a flawed concept of their burden. The Defendant does not have to prove that someone else was driving the car; the Prosecution must prove beyond a reasonable doubt that someone else wasn’t driving the car, and the Defendant was the one who was driving it.
15. Police misconduct and mistakes
Finally, if your attorney can expose any kind of police misconduct in the arrest or testing of the Defendant, the case may be dismissed notwithstanding an admissible test result showing that the Defendant was driving with a BAC of over 0.08%. Some examples of police misconduct include:
-The officer who conducted the test was not in compliance with the procedures set forth by Title 17 of California Code
-The stop itself was handled in a manner that was not in accordance with established procedure, or the reports themselves were completed in a flawed manner
-The testimony of the Prosecution’s witness contains outright falsehoods.
If you are charged with a DUI, the case against you will require skilled counsel with the ability to identify and isolate useful facts amongst a large amount of irrelevant evidence. The only way to become efficient at this task is to have years of experience representing clients in a number of DUI cases, involving diverse facts.
The attorneys at Los Angeles DUI Attorney Law Firm have this experience and will provide you the best chance of avoiding a conviction for a DUI.Contact us today at 424-285-5400 for a FREE consultation.