DUI causing an injury defenses – california vehicle code 23153

DUI Casuing an Injury Defenses: California Vehicle Code Section 23153

Driving under the influence Causing Injury Defenses: California Vehicle Code Section 23153

There are a number of drunk driving defenses. An experienced DUI lawyer can raise these defenses to help you get the best possible result in your case.

Defendant Not Driving Vehicle

If charged with a DUI causing an injury, the prosecution must prove the defendant was driving the vehicle. If the defendant can prove that he or she was not driving, the charges will be dismissed or the defendant will be acquitted of the charges at trial.

Defendant was not Under the Influence

If charged with a DUI under California Vehicle Code Section 23153(a), the prosecution must prove that the defendant was “under the influence.” It is a rebuttable presumption that the defendant was not under the influence if his or her BAC was less than 0.05 %. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496.) This means that if your BAC was lower than 0.05%, the prosecution has to use evidence outside of your BAC. It makes it a more difficult burden to prove that you were actually “under the influence” under Section 23153(a).

The arresting officer can attempt to show that you were under the influence by testifying that you had blood shot eyes, slurred speech, the smell of alcohol on your breath, and other objective symptoms of intoxication. Even if this were true, it does not necessarily mean you were under the influence. An experienced DUI attorney can illustrate to the jury alternative reasons for these symptoms.

Defendants BAC Was Under 0.08%

If a DUI charge is imposed under Section 23153(b), the prosecution must prove that the defendants BAC was 0.08% or higher. If the results from the chemical tests show that your BAC was lower than 0.08%, you can use this as a defense to dismiss your charges or get acquitted at trial. You can also use this for your DMV hearing as a defense to having your drivers license suspended.

Emergency Doctrine

The prosecution must prove that the defendant committed an illegal act or failed to perform a legal duty. However, a defense can be made for this element if a sudden, imminent, and emergency situation forced the defendant to act the way he or she did. A person facing a sudden and unexpected emergency situation not caused by that person’s own negligence is required only to use the same care and judgment that an ordinarily careful person would use in the same situation, even if it appears later that a different course of action would have been safer.

No Injury Caused

The prosecution must prove that a bodily injury was caused to another person. If another person was not injured, the defendant cannot be convicted of a DUI causing an injury. However, the defendant may still be convicted of a DUI under California Vehicle Code Section 23152.

Probable Cause

If the original traffic stop was made without probable cause, it is an unlawful stop and any evidence that resulted from the stop must be suppressed. This means that if the officer never had any valid reason to pull you over, you will most likely get your case dismissed because all of the resulting evidence will be ignored by the court.

Testing Procedures

The results of a chemical test can be challenged if the testing procedures were not properly administered or if the agency maintaining the testing device did not follow regulations.

Breathalyzer tests are inherently inaccurate. They are prone to mistakes. The breathalyzers must constantly be recalibrated to get the most accurate results. Even at their best they are still not completely accurate. An experienced DUI attorney can help you defend your case by scrutinizing the breathalyzer tests.

Rising BAC Defense

The “rising BAC defense” can usually be used when your BAC is close to 0.08% and the last drink you had was consumed fairly recent to the time you were pulled over. Alcohol takes time to metabolize in ones body. Taking a shot of alcohol will not make you immediately drunk or put you over the legal limit. Your BAC will start at 0.00% and will gradually rise as your blood metabolizes the alcohol. The defendant raising this defense will argue that at the time he/she was driving, his/her BAC was not over the legal limit.

For example, the defendant was pulled over on suspicion of driving drunk. The defendant fails the field sobriety test and is arrested and taken to the police station to have a blood test conducted. The blood test showed that the defendants BAC was at 0.09%. The blood test was taken an hour after the defendant was originally pulled over. If the defendant had just had his or her last drink before getting pulled over, the defendant would argue that his or her BAC was still on the rise. The defendant would argue that his or her BAC was 0.07% or below, and it eventually rose to 0.09% within that hour it took to take the blood test. This would be a viable defense because the BAC must be 0.08% or higher at the time of driving the vehicle, not at the time the blood test was taken.

Mouth Alcohol

“Mouth Alcohol” can be used as a defense as to why the breathalyzer reading was inaccurate. Mouth alcohol refers to the alcohol that is present in your mouth. Having mouth alcohol at the time you are blowing into a breathalyzer will result in an inaccurate reading since the breathalyzer will mistake the alcohol in your mouth as being present in your system. Burping or vomiting may cause mouth alcohol. The alcohol vapors will travel from your stomach into your mouth. Thus, it will make it seem like you have more alcohol in your system than you actually do.

Miranda Rights

Before police can question you after your arrest, they are required to notify you of your Miranda Rights, which include your right to remain silent and to have an attorney present on your behalf. Any incriminating statements you may have uttered can be suppressed if the arresting police did not properly give you your Miranda Rights before they began interrogating you.

“Legal Drugs” Not a Defense

It is not a defense that the defendant was legally entitled to use the drug.