How to Beat California DUI Charges

1. California DUI breath testing is subject to a wide variety of errors.

California DUI breath tests are subject to a wide range of errors. These include (but are not limited to)

• instrument malfunction,

• improper handling by the police,

• your physiological conditions (such as GERD or your diet, both of which are discussed below), and even

• outside environmental factors (such as radio frequency interference, which is also described below). While DUI breath testing is the most common way to measure one’s BAC, it’s not always an accurate one. This is because of the fact that a DUI breath test doesn’t directly measure the amount of alcohol in your blood. It measures the amount of alcohol present in your breath and then converts that amount to determine the amount of alcohol in your blood. As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading.

2. Mouth alcohol can alter the accuracy of your California DUI breath test

DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue (otherwise known as “alveolar air”). When residual alcohol lingers in the mouth…either because

• dental work trapped small amounts of alcohol-soaked food in your teeth,

• you burped or regurgitated, or

• you suffer from GERD, acid reflux or heartburn (discussed below)… the breath test instrument captures “mouth alcohol” rather than simply aveolar air. As a result, mouth alcohol can trigger a falsely high BAC reading on a California DUI breath test.

3. Medical conditions such as GERD, acid reflux, and/or heartburn can contaminate your DUI breath test results

• Gastroesophageal Reflux Disease (more commonly referred to as “GERD”),

• acid reflux, and • heartburn are all recognized medical conditions that create possible mouth alcohol situations. This is because these conditions produce a flow of acid that travels from the stomach into the mouth. When this occurs just prior to or during a DUI breath test, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure. As a result, GERD, acid reflux, and/or heartburn can cause a falsely high BAC on a California DUI breath test.

4. A low-carbohydrate, high-protein Atkins-style diet or conditions such as diabetes or hypoglycemia can trick a DUI breath test and result in a false high BAC.

Self-imposed conditions such as Atkins-style diets and medical conditions such as diabetes and hypoglycemia are actually capable of self-producing isopropyl alcohol. This is because bodies that are deprived of carbohydrates turn to stored fat for energy. This process produces ketones. Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol.

The problem…with respect to DUI breath testing…is that most California DUI breath testing instruments aren’t sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink). As a result, Atkins-style diets or diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC. 5. “Rising Blood Alcohol” can mean your BAC was higher when you took the test than when you were actually driving Alcohol takes a certain amount of time (typically between 50 minutes and three hours) to absorb into your system. If, for example, you had just recently finished drinking…and were investigated for DUI shortly thereafter…your alcohol may not have reached its peak absorption rate. When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result. This is because your BAC at the time of your blood or breath test is irrelevant…what is relevant is what your BAC is at the time of driving. Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that’s what your BAC was at the time of driving…particularly if you were “on the rise”. Prosecutors like to assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing. We know, however, that this isn’t always the case and that rising blood alcohol is a very legitimate DUI defense. This “on the rise” defense applies to both DUI blood testing and DUI breath testing.

6. California DUI blood testing does not necessarily offer accurate readings There are a variety of factors that could taint the results of your DUI blood test results:

• Blood fermentation,

• improper storage of your blood sample, and

• blood contamination are just a few of the reasons why your blood tests results might not be accurate. This is why we say that California DUI blood testing certainly isn’t foolproof. Depending on the circumstances surrounding the collection and storage of your DUI blood test, your California DUI defense lawyer may be able to have your BAC results excluded from evidence. If your BAC is suppressed, your charge under Vehicle Code 23152b driving with a BAC of at least 0.08% must be dismissed.

7. Violations of Title 17 of the California Code of Regulations can compromise your BAC results Title 17 of the California Code of Regulations sets forth the requirements for

• collecting,

• storing, and

• analyzing DUI chemical tests.

These regulations are very specific, and any violation of California’s Title 17 can compromise your DUI BAC results. This means that if, for example,

• it’s not a trained technician who draws your DUI blood sample, or

• if the DUI breath testing instrument that you use hasn’t been calibrated according to code,

your BAC could be excluded from evidence…or at the very least, its accuracy will be called into question.

8. If the officer didn’t have probable cause to stop, detain, or arrest you for DUI, the evidence–and the case–may get thrown out of court Before the police can

• stop your car,

• detain you to conduct a DUI investigation, or

• arrest you for a California DUI,

they must have a reasonable suspicion or reasonable belief that you are engaged in criminal activity. This reasonable belief is a legal standard known as probable cause.

If an officer doesn’t have the probable cause necessary before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed. When a judge suppresses evidence, it means that the prosecution cannot use it against you. As a result, evidence obtained without probable cause usually results in reduced or dismissed California DUI charges.

9. The officer didn’t advise you of your Miranda rights Despite common misperception, Miranda rights aren’t always required in a California DUI arrest. They are, however required when (1) you have been arrested, and (2) the officer is conducting a custodial interrogation. A “custodial interrogation” takes place when an officer asks you questions designed to solicit incriminating responses after you have been arrested.

If these conditions have both been satisfied, the officer must advise you of your Miranda rights or risk having any subsequent statements excluded from evidence. Depending on the significance of those statements, their exclusion could result in reduced or dismissed DUI charges.

10. There are innocent explanations for physical signs and symptoms of DUI Most likely, the officer will claim that you exhibited:

• red/watery eyes,

• a flushed face,

• slurred speech,

• an unsteady gait, and

• had the odor of an alcoholic beverage on your breath.

Whether or not this description is accurate, the fact is that none of these signs or symptoms necessarily means that you are DUI. And even if you were drinking, these characteristics don’t in and of themselves indicate that you were under the influence of alcohol and/or drugs. Additionally, innocent explanations such as:

• fatigue,

• allergies,

• the sun,

• physical injury,

• illness…

can possibly explain the physical signs and symptoms that are commonly associated with DUI.

11. California field sobriety tests (“FSTs”) aren’t accurate indicators of alcohol and/or drug impairment Even the most reliable California field sobriety tests aren’t accurate indicators of alcohol and/or drug impairment. The three tests that have actual data to support their trustworthiness are only between 65-77% accurate at detecting impairment…and that’s only if they are precisely administered and scored (which is rarely the case). And just like the innocent explanations that can account for physical signs of impairment, these same explanations can explain poor performance on FSTs. Additionally, factors such as • officer-induced intimidation,

• bad weather conditions,

• poor lighting,

• uneven surface conditions, and

• footwear such as boots, dress shoes or high heels that have nothing to do with alcohol and/or drugs can cause an individual to “fail” his/her field sobriety tests.

12. DUI isn’t the only explanation for bad driving The police like to believe that all bad drivers must be DUI, this not always the case.

• Weaving,

• speeding, and even

• erratic driving are often a result of inattention or distraction.

Maybe you were;

• eating,

• trying to play a CD, or

• trying to pick up something that dropped, or

• distracted by your passengers. The bottom line is that DUI isn’t the only explanation for bad driving. The reality is that sober people exhibit moments of bad driving just as impaired drivers.

13. Just because your blood alcohol concentration (BAC) was over the legal limit doesn’t mean you were necessarily DUI Blood alcohol concentration (BAC) is affected by many different factors, not just the actual amount of alcohol in one’s body. These factors include (but are not limited to):

• errors in California DUI chemical testing equipment,

• errors in obtaining your DUI blood, breath, or (when appropriate) urine sample,

• your medical conditions, and

• when you finished drinking alcohol. Each of these factors can independently affect the accuracy of your BAC results, so don’t let the number fool you…an illegal BAC doesn’t necessarily mean you are guilty of DUI.

14. There are inherent error rates with California DUI chemical testing Even assuming that all testing conditions are perfect.

• the testing equipment has been properly maintained and calibrated, and;

• there are no physical conditions that could adversely affect the test… there is still an inherent error rate with California DUI chemical testing. Experts agree that California DUI chemical testing has a +/- error rate of between 0.005-0.02%. As a result, a California DUI defense attorney can challenge BAC results that are between 0.08-0.10%, since they could be lower than the minimum 0.08% required by Vehicle Code 23152b driving with a BAC of at least 0.08%.

15. California DUI sobriety checkpoints must adhere to specific legal requirements If you were arrested at a DUI roadblock, there are a variety of issues that a California criminal defense attorney will investigate. California DUI sobriety checkpoints must adhere to very strict legal requirements…if they don’t, you could be falsely arrested for DUI. These legal requirements relate to the operation of the DUI checkpoint. Some examples include (but are not limited to):

• having supervising officers organize and oversee the checkpoint,

• making sure that the field officers follow a predetermined formula for stopping cars, and

• publicly advertising the DUI roadblock. If/when these requirements aren’t satisfied, a California DUI defense attorney can effectively challenge your DUI arrest and subsequent charges.

16. Radio Frequency Interference (RFI) can contribute to a falsely high BAC result Radio frequency interference (“RFI”) can cause a California DUI chemical blood or breath test to produce an erroneously high BAC. This is because almost all electronic devices…such as those used to analyze DUI blood and breath samples…are susceptible to RFI or EFI (electromagnetic interference). The electronic components in these instruments can be affected by nearby radio waves. Radio transmission from

• patrol cars,

• the automatic door-unlocking devices found in crime labs,

• cell phones,

• microwaves,

• fluorescent lights, etc…

These are a few examples of the types of equipment that are capable of interfering with DUI blood and breath testing results.

17. If you’re not exhibiting signs of mental impairment, chances are you aren’t DUI With respect to alcohol and/or drugs, there are two types of impairment: mental impairment and physical impairment. Most of the impairment that officers claim people exhibit during California DUI investigations is physical. Officers routinely testify that those arrested for drunk driving exhibit

• an unsteady gait,

• poor coordination,

• red/watery eyes, and

• slurred speech. However, experts agree that alcohol and/or drug-related impairment always presents itself in the form of mental impairment first. This means that if an officer testifies that you displayed physical but not mental impairment, your alleged impairment was unrelated to alcohol and/or drug use. As a result, if you weren’t exhibiting signs of mental impairment, you probably weren’t DUI.

18. Your DUI BAC doesn’t accurately reflect your level of impairment If a significant discrepancy exists between your BAC and your alleged level of impairment, something is wrong. This may be the case where you either (1) reportedly exhibited no impairment, or (2) exhibited even slight impairment, but your BAC was high…by even as much as two or three times the legal limit. When this type of situation occurs (sometimes referred to as a “disconnect” case), and your DUI BAC doesn’t accurately reflect your alleged level of impairment, the evidence can’t be trusted…something just doesn’t add up.

19. You weren’t driving It isn’t enough for the police to prove you were under the influence…the crime is driving under the influence. If, for example,

• you were involved in an accident and no one saw you driving the car, or

• if the police found you when you were in your parked car, it will be more difficult for the prosecution to prove one of the key elements of a DUI: that you drove. If the D.A. can’t prove that you were driving, you can’t be convicted of a California DUI. And finally…

20. Even if you were DUI, police misconduct may mitigate or terminate DUI charges.  If you can demonstrate police misconduct, then your DUI charges may have to be dismissed, regardless if you were actually over the BAC limits. The Police must properly follow procedures. For example,

• DUI police reports must be accurate,

• Title 17 procedures must be complied with, and

• courtroom testimony must be truthful.

If these, or any other, conditions are purposely manipulated, evidence that was illegally obtained or fabricated may be suppressed.

Depending on how severely manipulated, illegally obtained or fabricated the evidence is,  the prosecutor’s case could seriously compromised and the charges may be reduced or even dismissed.