Were you arrested for DUI, or was someone close to you arrested on a DUI offense?
First off, we need to talk about your feelings for a second.
If you have been arrested for DUI, you are probably embarrassed or ashamed, maybe a little mad, but most of all, you want to know what to do, what can be done, what you are facing, and if you even have a chance of fighting a DUI case. It is my hope to bust a few myths about DUI defense, and also let you know what can and cannot be done with a DUI case.
Can you fight a DUI?
DUI Defenses generally fall into categories of types of defenses. The best results follow when you leave no stone unturned in coming up with defenses for a DUI case. It is generally not a good idea to “pick one” defense, and aggressively go for that one defense. The better tactic in defending DUI cases comes when you carefully review all of the evidence, line by line, and come up with a strategy.
- Forcing the DA to prove you were driving. Intoxication is not enough: the prosecution must also prove that you were driving. This may be difficult if, as in the case of some accidents, the police arrive after the scene, and there is no witnessing actual driving.
- Forcing the DA to prove Probable Cause. Evidence can be, and will be suppressed, if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. DUI checkpoints and sobriety roadblocks in particular present many defenses to a DUI, but often the police will stop someone for a non-driving violation, and then use that as a pretext to fill in the blanks for probable cause. Case law could not be more clear in many cases — this is not allowed and not proper.
- Failure to give Miranda warnings. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied consent warning defenses. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.
- Forcing the DA to prove that you were Under the influence. The officers observations and opinions as to intoxication can be questioned… the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as failing. Witnesses, including bartenders or waitresses, can also testify that you appeared to be sober.
- Breath alcohol testing defenses. There exists a wide range of potential problems with breath testing. Most breath machines will register many chemical compounds found on the human breath as alcohol. Temperature and even the pattern of blowing can wildly cause the breath reading to fluctuate from normal. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out by obtaining the maintenance and calibration records of the machine, or in cross-examination of the state’s expert witness and/or the defense can hire its own forensic chemist.
- Blood alcohol testing defenses. There exists a wide range of problems with blood testing, also, including the requirement in California that alcohol swabs not be used, that the person drawing blood be a licensed phlebotomist (not just a police officer), that the blood vial have a certain percentage of preservatives and anti-coagulants, that the blood be available for re-testing, that the blood not be exposed to bacteria (in the air or otherwise), that the blood testing machine be maintained and calibrated, that the blood be homogenized, that the vial follow a chain of custody, and that the blood be taken within three hours of driving.
- Medical issues: Being a diabetic, on Atkins related diets, a person with acid reflux, with eye, knee, neurological or other physical defects, or on medication, can often create a false positive conclusion that someone was under the influence.
- Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause wildly inaccurate test results.
- Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the driving. A number of complex physiological assumptions are made with retrograde extrapolation, and in general, it involves bad science.
- Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc., and often, it is discovered that a machine had mechanical problems, or tests off, making the test excludable and sometimes dismissing the entire case.
- License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the states department of motor vehicles, including mistakes by the officer.
The thing is, most of your friends do not even know all about the scientific issues involved. They usually just urge you to plead guilty. Even most attorneys are unaware of the complex issues and defenses involved in a DUI case.
A qualified DUI attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, and handle a DUI trial with the greatest odds of success.
A good DUI attorney can also help you by handling the Department of Motor Vehicles hearing, which you must request within 10 days of your arrest, saving your license, and can minimize the impact on you from a DUI. In almost all cases, we can appear for you in court, without you ever having to take time off and experience the embarrassment of the court process. We can ask the court to minimize the fees and other punishment in your case, even if your case is not dismissed or reduced.
A DUI can stay on your driving record for life, and also leaves a criminal record (depending on how it was filed, a DUI is either a misdemeanor or a felony). It can expose you to jail time, hefty fines with the court, expensive and inconvenient alcohol schools, and a huge insurance increase that lasts for years, so in almost all cases it is worth it to fight the charges, to avoid a potential conviction (which stays on your record for life in California), and so that you never have to wonder *what if* years later.