DUI

California DUI

People arrested for driving under the influence often think they face unbeatable, insurmountable charges. In most cases, this idea is wrong. It is rare to find a DUI case in California where the defendant does not have at least one strong defense available. The skilled attorneys at McDowell Defense are very experienced in defending clients charged with DUI and can recognize the strongest defenses available in each case. If you have been arrested for DUI, the attorneys at McDowell Defense can help. Whether it is your first DUI arrest or you have had several, whether it is a misdemeanor or felony DUI arrest, call McDowell Defense right away to schedule a free consultation with one of our attorneys at (213) 401-2322.

The DUI Charges
California law under VC23152 breaks down a simple DUI charge into two separate charges:
VC23152(a) (The “A” Count): Driving under the influence of alcohol or drugs

VC23152(b) (The “B” Count): Driving with a blood alcohol concentration (BAC) of .08% or greater

In order to convict you on these charges the prosecutor must prove:
You were driving a motor vehicle
On a California roadway
While impaired ( the “A” count) or
With a blood alcohol concentration of .08 or greater (the “B” count)

Probable Cause to Arrest
Before you can be arrested for DUI and taken to the police station in order to submit to the mandatory chemical test, the office must have probable cause to believe you are operating a motor vehicle while impaired. If the officer does not have sufficient probable cause, your arrest can be challenged. If the court finds your arrest was illegal, the court will suppress all evidence obtained after the arrest including blood or breath test results.

What gives the officer probable cause?

The stop must be legal
The police officer needs to establish probable cause to stop you. An officer must see you violate some traffic law such as not stopping completely at a stop sign, having a headlight out, speeding, turning illegally, or not using your turn signal. Once the officer has pulled you over he only has to be suspicious that you are impaired to conduct a DUI investigation.

The officer may also obtain probable cause by observing symptoms of intoxication from the way you are driving. If you weave in and out of lanes, slow down and speed up for no apparent reason, speed, drive far too slow for road conditions, or sit at a green light.

Finally, you may be stopped at a DUI check point. There are specific rules that govern how DUI check points are set up and conducted. If you smell of alcohol, tell the officer you have had a drink within the last 24 hours, or do something to make him suspicious that you might be impaired, he can ask you to get out of the car in order to conduct an investigation.

The Officer Needs Probable Cause to Believe You Were Driving Impaired
Once the officer has established probable cause for the stop, he/she will make further observations in order to determine if he/she has probable cause to ask you to perform what are known as the “Field Sobriety Tests” (“FSTs”). Factors providing probable cause can include looking for red/watery eyes, slurred speech, dilated pupils, fumbling for your driver’s license, and the smell of alcohol. If the officer detects any of these indicators of possible impairment, he/she will conduct a more thorough investigation.

You will be asked to exit your car and perform the FST”. These are a series of “divided attention” tests of your ability to follow directions and your coordination at the same time. These tests can include the “HGN” where the officer moves a pen from side to side and you are to follow it with your eyes, walking a straight line, and standing on one foot with your arms kept at your sides.

These tests may be followed by the Preliminary Alcohol Screening (PAS) test. This is a hand held breath test. This is not the mandatory “chemical test” therefore, you do not have to submit to this test. In fact ALL of the FSTs are voluntary. However, very few police officers will tell you this. These tests are very valuable to officers as it gives them more evidence to use against you. We at McDowell Defense generally suggest to our clients that they politely decline to take the FSTs.

Click Here for more information on Field Sobriety Tests.

If the officer arrests you, he already had probable cause. He cannot arrest you just because you refuse to submit to the FST’s or PAS tests. He also cannot arrest you simply because you politely refused to answer any of his questions – other than to give your name, address, driver’s license, registration, and insurance information. No sense in providing him with more.

If the officer has probable cause to believe you were driving while impaired, he/she will arrest you and take you to the police station or jail. Once there you will be asked to take either a breath or blood test. It is mandatory you submit to one of these tests. If you do not, it will be considered a refusal and you will lose your license for one year. Plus, the officers can get a warrant and forcibly take your blood.

The California Supreme Court has held that you cannot put conditions on these tests. You do not have the right to have your attorney present when taking the test. In fact, just stating you will take the test only once you speak to your attorney is considered a refusal. You do not have the right to demand to be taken to a hospital to have blood drawn.

However, under Title 17 of the California Code of Regulation, you do have a right to have your blood drawn by only a qualified medical individual in sanitary conditions. You may ask to see the person’s credentials. If you do refuse because of concerns about these concerns, make sure you unambiguously state this as the cause of for your refusal.

Defenses to a DUI
While it may seem that the odds are stacked against you, there are some very effective defenses to a DUI in California.

1.)The officer did not have probable cause to stop, detain, or arrest you for DUI.
If this is the case the evidence may be suppressed and the case dismissed

2.)The officer did not advise you or your Miranda rights before questioning you
MIRANDA warnings do not have to be given if the officer is not going to ask you questions, after you are arrested. Any questions pre-arrest do not require MIRANDA warnings. Therefore, it is best not to answer any questions other than your name and address.

3.)Mouth Alcohol
The Breathalyzer is supposed to sample what is referred to as “deep lung air” or “alveolar air” However, the test may also pick up residual alcohol on your breath because
Alcohol is being trapped by lose dental work
You burped
You suffer from Acid reflux or heartburn

4.)The Atkins, or Similar Diet
Low carbohydrate diets can produce isopropyl alcohol, which can give a false positive reading on the Breathalyzer. This occurs when the body burns fat, producing what are known as ketones. While ketones are eliminated from the body, they convert into isopropyl alcohol.

5.)Raising Blood Alcohol – “The Rising” Defense
The body does not absorb alcohol all at once. It absorbs over time. If you recently had drinks, your body may be still in the absorption phase when you are stopped. While you may test .08 or greater at the time of the breath test, at the time of driving you could still have been below the legal limit. This why it is best not to tell the officer when you had your last drinks.

6.)False Breathalyzer Results Due to:
Improper calibration of the equipment
Improper maintenance of the equipment
Improper handling of the equipment by police officers
Malfunction
Radio interference

7.)False Readings on Blood Results Due to:
Improperly stored samples
The blood fermented
Contamination

8.)Violation of Title 17
Title 17 of the California Code of Regulations govern the collection and storage of samples, the maintenance of equipment, the manner of testing, and the analysis of samples.

9.)The Symptoms Noted by the Officer Have an
Innocent Explanation
Watery eyes
Slurred speech
Lack of coordination
Poor performance on the FSTs
These symptoms could be caused by lack of sleep, allergies, injuries, illnesses, or many other factors

10.)Being Under the Influence Isn’t the Only
Reason for Bad Driving
Weaving, speeding, sitting at a green light can all be caused by other factors including eating, adjusting the radio, trying to pick up something you dropped, distracted by other people in or outside the car.

11.)You Weren’t the Driver
After an accident, if everyone is outside the car, the officer may not know who was actually driving.

12.)Officers Did Not Follow Protocol When
Conducting the DUI Checkpoint
There are a variety of issues that come up with DUI checkpoints
Was there a supervising officer who set up and oversaw the checkpoint?
There must be a predetermined formula for stopping cars
The checkpoint must be publicly advertised