DUI defenses – california vehicle code 23152

Driving under the influence Defenses California Vehicle Code Section 23152

There are a number of drunk driving defenses that an experienced DUI attorney can raise to help you get the best possible result in your DUI case. Below are just a few to consider.

Defendant Not Driving Vehicle

If charged with a DUI, the prosecution must prove the defendant was driving the vehicle. If the prosecution cannot prove that the defendant was driving, the charges will likely 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 23152(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 percent. (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. This makes it more burdensome to prove that you were actually “under the influence” under Section 23152(a).

The arresting officer may also note in the police report “objective symptoms of intoxication” such as blood shot eyes, slurred speech, and the odor of alcohol. Even if objective symptoms of intoxication are notes, it does not necessarily mean you were under the influence. An experienced DUI attorney can illustrate alternative explanations for these symptoms to the jury.

Defendants BAC Was Under 0.08%

If a DUI charge is given under Section 23152(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%, this can be used as a drunk driving defense to dismiss your charges or get you acquitted at trial. You can also use this for your DMV hearing as a defense to having your driver’s license suspended.

Probable Cause

If the original traffic stop was made without probable cause, it is unlawful and any evidence that resulted from the stop must be suppressed. This means that if the officer never had any lawful reason to pull you over, you may have your case dismissed because all of the evidence will be suppressed.

Alternative Explanations For Faulty Driving

There are innocent and alternative explanations for faulty driving other than drunk driving. The majority of traffic violations are committed by sober people. For example, current research shows no link between drunk driving and speeding. An experienced DUI lawyer understands how to elicit favorable testimony from an officer designed to highlight all of the ways you drove properly and safely.

Alternative Explanations for Objective Symptoms of Intoxication

There are often innocent explanations for signs of intoxication noted in the police report (blood shot/watery eyes; slurred speech; nervousness). Such alternative explanations include: allergies, fatigue, eye irritation, embarrassment, frustration, or nerves. In addition, an argument can be made that the odor of alcohol, standing alone, cannot prove impairment for purposes of driving under the influence.

Testing Procedures

Breathalyzer tests are inaccurate. They are prone to mistakes. 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. The breathalyzers must constantly be recalibrated to get the most accurate results, and 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 DefenseThe “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 a human 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 drunk driving 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 just had his last drink before getting pulled over, the defendant would argue that his BAC was still on the rise. The defendant would argue that his BAC was 0.07% or below at the time of driving, 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 to challenge the breathalyzer reading as inaccurate. Did mouth alcohol contaminate the breath test results? Breath alcohol test results can be skewed by latent oral alcohol caused by burping, belching, or by cough syrup and cold medicines, breath sprays, mouthwash, dentures and adhesives, braces, trapped food between the teeth, orthodontics, and more.

Gastroesophageal Reflux Disease (GERD)

Did the DUI suspect suffer from Gastroesophageal Reflux Disease (GERD), heartburn, or acid reflux? These symptoms, and others, can cause alcohol to makes its way up from the stomach and back into the throat and mouth areas. If you experience these symptoms, your breath test could have resulted in a falsely high reading.

Inaccurate Field Sobriety Testing MethodsOften times, DUI suspects with medical conditions, obesity, injuries, and seniors cannot be fairly evaluated using standard field sobriety testing methods. Did the officer administer the tests in full compliance with the requirements set out by the National Highway Traffic Safety Administration (NHTSA)? Were Field Sobriety Tests administered on a flat surface away from passing traffic? If the test was administered on a hill, slope, an uneven surface, on rocky or slippery terrain, in the presence of heavy traffic, wind or rain, or the suspect was wearing constricting shoes or high heels, there is a good chance the results were negatively affected by these factors.

Miranda Rights

Any incriminating statements may be suppressed if the officer did not properly give you your Miranda Warning, on the right to remain silent. The officers only need to give you this warning when you have already been arrested and you are being interrogated by law enforcement.