DUI DEFENSES

There are numerous DUI defenses that may be applied to an individual's case depending upon certain facts and circumstances.  A DUI defense may prevent the prosecution from proving its case if an element of the DUI charge is successfully challenged.  In addition, a DUI defense may reduce the prosecution's ability to prove its case by suppressing or excluding certain evidence.  Developing a viable DUI defense may persuade the prosecution to dismiss or reduce the DUI charges or may lead to an acquittal at trial.

The Law Offices of John H. Sommers will review and analyze the specific evidence in your case to determine which defense strategies may be applicable to your situation.  Below are some of the most common defenses raised in a DUI case:

No evidence of driving:   The accused cannot be convicted of DUI if the prosecution is unable to prove he or she was driving a vehicle at the time of the alleged DUI offense.  This defense may be raised when the arresting officer did not observe the accused driving but made an arrest based upon a belief that the accused drove.

Alcohol or drug consumption occurred after driving:  If the accused consumed alcohol or drugs after the time of driving (i.e. involved in an accident or car broke down and then consumed alcohol/drug), it may be shown that the accused did not drive while under the influence.

No probable cause (unlawful detention):  Every citizen has a fourth amendment constitutional right against unlawful search and seizure without probable cause.  If it can be proven that the arresting officer did not have probable cause or reasonable suspicion to stop the vehicle, the evidence may be suppressed and deemed inadmissible in a court of law.

No probable cause (unlawful arrest):  The arresting officer may not have had relevant and significant observations to support the arrest (i.e. based upon driving pattern, objective physical symptoms, and performance on field sobriety tests).  If a motion to suppress is granted, the results of the subsequent breath or blood alcohol test will be excluded from evidence, which can lead to a dismissal.

Explanations for poor driving:  Evidence may be presented showing that the poor driving was due to non-alcohol/drug related factors.

Explanations for poor performance on field sobriety tests:  If the accused's poor performance on the field sobriety tests was due to non-alcohol/drug related factors (such as injuries, age, level of fitness, natural coordination/balance, nervousness, anxiety, uneven surfaces, whether conditions, etc.), the DUI charge can be challenged.

Field sobriety tests administered incorrectly:  The National Highway Traffic Safety Administration (NHTSA) created standards for administering the three standardized field sobriety tests.  Failure of the arresting officer to follow the strict procedural guidelines may weaken the arresting officer's DUI investigation.

Explanations for physical symptoms of intoxication:  Objective symptoms of intoxication such as red and watery eyes, slurred speech, flushed face, and unsteady gait may be due to non-alcohol/drug related explanations.

No Miranda warnings:  Once the accused has been placed into custody, if the arresting officer failed to read his or her Miranda rights and obtain a valid waiver, certain incriminating statements may be excluded from evidence.

Introduce witness testimony:  Independent witness testimony which contradicts the arresting officer's observations as to the actions and behavior of the accused may weaken the prosecution's case.

Challenge the accuracy of the chemical test results:  Title 17 of the California Code of Regulations states that the breath testing device must be calibrated every 10 days or 150 uses.  A review of the records may show that the devise was not properly calibrated or was not properly maintained at the time of the arrest.

Fermenting blood defense:  An independent laboratory can re-analyze the alcohol level of the blood sample, can check the preservative level, and can check for bacterial growth which can produce an inaccurately high blood alcohol concentration.

Rising blood alcohol level defense:  Absorption of alcohol into the blood stream can take anywhere from 30 minutes to 3 hours.  If the accused continued to absorb alcohol after the time of driving, his or her blood alcohol concentration (BAC) may have risen from under a .08% BAC at the time of driving to a .08% or greater BAC at the time the chemical test was taken.  The prosecution must prove that the accused had a .08% or greater BAC at the time of driving, not at the time of testing.

Chemical test taken more than three (3) hours after driving:  If the chemical test was taken more than three hours after the time of driving, the prosecution is not afforded the presumption that the accused was driving under the influence.

Inaccurately high BAC result:  Breath machines are supposed to measure the concentration of alcohol from the alveolar air of the deep lung tissue, which is thought to correlate with blood alcohol concentration.  A breath sample may be contaminated by the interference of alcohol in the mouth which is referred to as "mouth alcohol."  The presence of mouth alcohol can cause an inaccurately high blood alcohol concentration.  Mouth alcohol can result from recent drinking, burping, regurgitating, mouthwash, cough medicine, dentures, cavities, braces, etc.

No continuous observation:  California regulations require the officer to continuously observe the accused for 15 minutes prior to administering a breath test to ensure that the accused did not consume anything, burp, hiccup, or regurgitate which could create an inaccurately high blood alcohol concentration due to the presence of mouth alcohol.

Chemical test administered incorrectly:  Title 17 of the California Code of Regulations provides procedures that must be followed by anyone administering a breath or blood test.  If the technician conducting the test lacked proper training or failed to comply with these regulations, the results of the chemical test may be unreliable and excluded from evidence.

Chemical test refusal admonition not advised:  The arresting officer must provide the accused with a choice of chemical tests and must advise the accused of the negative consequences of refusing to submit to chemical testing, when dealing with the court and the DMV.   

Inherent error rate in chemical testing:  The inherent error rate for breath-testing machines is plus or minus .01% BAC.  Therefore, a .08% BAC could be a .09% BAC or even a .07% BAC (i.e. under the legal limit).

No Drug Recognition Expert (DRE):  If a DRE was not employed to certify that the accused was under the influence of a drug, the prosecution's case will be more difficult to prove.

Contact the Law Offices of John H. Sommers for a free and confidential consultation concerning the potential DUI defense that may be applicable to your case.