| Were you arrested for DUI, or was someone close to | | | | or the defense can hire its own forensic chemist. |
| you arrested on a DUI offense? | | | | 7. Blood alcohol testing defenses. There exists a wide |
| First off, we need to talk about your feelings for a | | | | range of problems with blood testing, also, including the |
| second. | | | | requirement in California that alcohol swabs not be |
| If you have been arrested for DUI, you are probably | | | | used, that the person drawing blood be a licensed |
| embarrassed or ashamed, maybe a little mad, but | | | | phlebotomist (not just a police officer), that the blood |
| most of all, you want to know what to do, what can | | | | vial have a certain percentage of preservatives and |
| be done, what you are facing, and if you even have a | | | | anti-coagulants, that the blood be available for |
| chance of fighting a DUI case. It is my hope to bust a | | | | re-testing, that the blood not be exposed to bacteria (in |
| few myths about DUI defense, and also let you know | | | | the air or otherwise), that the blood testing machine be |
| what can and cannot be done with a DUI case. | | | | maintained and calibrated, that the blood be |
| Can you fight a DUI? | | | | homogenized, that the vial follow a chain of custody, |
| DUI Defenses generally fall into categories of types of | | | | and that the blood be taken within three hours of |
| defenses. The best results follow when you leave no | | | | driving. |
| stone unturned in coming up with defenses for a DUI | | | | 8. Medical issues: Being a diabetic, on Atkins related |
| case. It is generally not a good idea to "pick one" | | | | diets, a person with acid reflux, with eye, knee, |
| defense, and aggressively go for that one defense. | | | | neurological or other physical defects, or on medication, |
| The better tactic in defending DUI cases comes when | | | | can often create a false positive conclusion that |
| you carefully review all of the evidence, line by line, and | | | | someone was under the influence. |
| come up with a strategy. | | | | 9. Testing during the absorptive phase. The blood, |
| | | | breath or urine test will be unreliable if done while you |
| 1. Forcing the DA to prove you were driving. | | | | are still actively absorbing alcohol (it takes 30 minutes |
| Intoxication is not enough: the prosecution must also | | | | to three hours to complete absorption; this can be |
| prove that you were driving. This may be difficult if, as | | | | delayed if food is present in the stomach). Thus, |
| in the case of some accidents, the police arrive after | | | | drinking "one for the road" can cause wildly inaccurate |
| the scene, and there is no witnessing actual driving. | | | | test results. |
| 2. Forcing the DA to prove Probable Cause. Evidence | | | | 10. Retrograde extrapolation. This refers to the |
| can be, and will be suppressed, if the officer did not | | | | requirement that the BAC be "related back" in time |
| have legal cause to (a) stop, (b) detain and (c) arrest. | | | | from the test to the driving. A number of complex |
| DUI checkpoints and sobriety roadblocks in particular | | | | physiological assumptions are made with retrograde |
| present many defenses to a DUI, but often the police | | | | extrapolation, and in general, it involves bad science. |
| will stop someone for a non-driving violation, and then | | | | 11. Regulation of blood-alcohol testing. The prosecution |
| use that as a pretext to *fill in the blanks* for probable | | | | must prove that the blood, breath or urine test |
| cause. Case law could not be more clear in many | | | | complied with state requirements as to calibration, |
| cases -- this is not allowed and not proper. | | | | maintenance, etc., and often, it is discovered that a |
| 3. Failure to give Miranda warnings. Incriminating | | | | machine had mechanical problems, or tests *off*, |
| statements may be suppressed if warnings were not | | | | making the test excludable and sometimes dismissing |
| given at the appropriate time. | | | | the entire case. |
| 4. Implied consent warning defenses. If the officer did | | | | 12. License suspension hearings. A number of issues |
| not advise you of the consequences of refusing to | | | | can be raised in the context of an administrative |
| take a chemical test, or gave it incorrectly, this may | | | | hearing before the states department of motor |
| invalidate a DMV license suspension based upon a | | | | vehicles, including mistakes by the officer. |
| refusal to provide a breath/blood sample. | | | | The thing is, most of your friends do not even know all |
| 5. Forcing the DA to prove that you were *Under the | | | | about the scientific issues involved. They usually just |
| influence*. The officers observations and opinions as | | | | urge you to plead guilty. Even most attorneys are |
| to intoxication can be questioned ... the circumstances | | | | unaware of the complex issues and defenses involved |
| under which the field sobriety tests were given, for | | | | in a DUI case. |
| example, or the subjective (and predisposed) nature of | | | | A qualified DUI attorney, however, can review the |
| what the officer considers as *failing*. Witnesses, | | | | case for defects, suppress evidence, compel |
| including bartenders or waitresses, can also testify that | | | | discovery of such things as calibration and |
| you appeared to be sober. | | | | maintenance records for the breath machine, have |
| 6. Breath alcohol testing defenses. There exists a wide | | | | blood samples independently analyzed, negotiate for a |
| range of potential problems with breath testing. Most | | | | lesser charge or reduced sentence, obtain expert |
| breath machines will register many chemical | | | | witnesses for trial, contest the administrative license |
| compounds found on the human breath as alcohol. | | | | suspension, and handle a DUI trial with the greatest |
| Temperature and even the pattern of blowing can | | | | odds of success. |
| wildly cause the breath reading to fluctuate from | | | | A good DUI attorney can also help you by handling the |
| normal. And breath machines assume a 2100-to-1 ratio | | | | Department of Motor Vehicles hearing, which you |
| in converting alcohol in the breath into alcohol in the | | | | must request within 10 days of your arrest, saving your |
| blood; in fact, this ratio varies widely from person to | | | | license, and can minimize the impact on you from a |
| person (and within a person from one moment to | | | | DUI. In almost all cases, we can appear for you in |
| another). Radio frequency interference can result in | | | | court, without you ever having to take time off and |
| inaccurate readings. These and other defects in | | | | experience the embarrassment of the court process. |
| analysis can be brought out by obtaining the | | | | We can ask the court to minimize the fees and other |
| maintenance and calibration records of the machine, or | | | | punishment in your case, even if your case is not |
| in cross-examination of the state's expert witness and | | | | dismissed or reduced. |