15 Major Challenges to Defeating a DUI Case Against You

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.

2.Mouth Alcohol

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.