Top 15 Challenges To Beat California DUIs

California DUI breath tests have long been scrutinized for their accuracy and reliability. For example, we may be able to bring to light factors including but not limited to instrument malfunction, inaccurate calibration, improper technique used by the officer administering the test, the defendant’s diet at the time of arrest, and/or radio interference.

Most agencies use the Intoxilyzer 8000EN unit to obtain a breath sample. However, it does not always produce an accurate blood alcohol level. This is because a breath test does not directly measure the amount of alcohol in the blood. The Intoxilyzer is only able to detect the amount of alcohol present in a person’s breath. Based on the amount of alcohol in the breath, it then uses a scientific formula to calculate the amount of alcohol in the blood. Because the test does not directly measure the BAC, its results are susceptible to a wide array of outside variables that sometimes result in an erroneously high blood alcohol reading.

Breath test instruments are designed to capture a sample of alveolar air located deep in the lungs. If a person has recently had dental work, the instrument may detect small amounts of alcohol if the person regurgitated or burped during the test; or, if alcohol has soaked into food in the person’s teeth. In this situation, the machine may capture this “mouth alcohol,” rather then capturing alveolar air, resulting in an inaccurately high blood alcohol reading. It is important to discuss these factors during your consultation.

GERD is an acronym for Gastroesphangeal Reflux Disease, which, along with acid reflux and heartburn, can produce an inaccurate blood alcohol reading. These conditions can produce a flow of acid from the stomach to the mouth, which can disguise itself as the deep lung air the Breathalyzer is intended to measure. As a result, a person’s blood alcohol level may be inaccurately high on a blood test.

Certain diets that are low in carbohydrates, or high in protein, such as the Atkins diet, have been known to produce isopropyl alcohol in the body. The same is true of certain medical conditions, such as diabetes and hypoglycemia.  When a body is deprived of carbohydrates, it turns to stored fat for energy. This process produces chemicals called ketones. When ketones are broken down, and eliminated from the body through either urine or the breath, they are converted into isopropyl alcohol. The instruments used in California are usually not sophisticated enough to tell the difference between isopropyl alcohol and the ethyl alcohol that indicates that a person has been drinking. As a result, certain diets or medical conditions can trick a breath test into producing a falsely high blood alcohol reading.

This situation is commonly referred to as rising blood alcohol. On average, alcohol is absorbed into the body approximately 50 minutes to 3 hours after consumption. If you had just finished drinking alcohol and were stopped shortly thereafter for suspicion of a DUI, the alcohol may not have been completely absorbed in your body. This could result in an inaccurate blood alcohol reading. Just because a person’s BAC was over the legal limit when he or she submitted to a test, this does not necessarily mean that this was their BAC while they were driving. Prosecutors often assume that each defendant was beyond the level of peak absorption when they submitted to a breath or blood test. However, at San Diego DUI Attorney, we know that this is

There are a variety of factors that can lead to suspicion about the validity of DUI blood test results. A few examples include blood fermentation, improper storage of the blood sample, and contamination. Your DUI defense lawyer will carefully examine the circumstance surrounding the collection, documentation, and storage of your blood test sample. In some cases, we may even send your blood sample to be independently analyzed.  If the results are inaccurate, we will work to exclude, or suppress, the blood test from evidence.

The state of California has established strict regulations for the collection, storage, and analysis of DUI chemical tests. Failure to adhere to these regulations may compromise the results, and render them invalid as evidence. For example, if a trained technician or phlebotomist, did not obtain the blood test, we can seek to exclude it by filing a Motion to Suppress. Another common violation results when the equipment used to obtain the sample is not properly stored or maintained. 

The police must have probable cause before stopping your vehicle.  If they did not, much of the evidence against you can be suppressed, and your case could get dismissed.  To make a traffic stop, the police do not necessarily need probable cause that you were driving drunk.  There are a number of minor traffic violations that can lead to the initial stop; speeding or driving with broken tail lights are common examples.  However, there must be some reason to stop you.  Simply driving late at night in an area where DUI incidents commonly occur, would not be sufficient.  

Assuming you were legally stopped, the officer then must be able to articulate facts indicating why a DUI test was given.  The examples above (speeding / broken tail light), would not necessarily suggest you are driving under the influence.  The police must be able to point to signs of intoxication.  These might include bloodshot eyes or the smell of alcohol on the breath.  If you were administered a test for no reason, we will move to suppress the results.  

Despite what is often depicted on TV, an officer is not always required to read your Miranda rights during a DUI arrest. However, an officer is required to read your Miranda rights if after you have been arrested, the officer begins a custodial investigation.  This means, you must be in police custody (which you would be if you are arrested) and the police must be asking you questions that might lead to incriminating responses. It is important to understand that information you give voluntarily (when you are not being questioned) can be used against you. If your Miranda rights were violated, your responses can be suppressed.

California field sobriety tests are not always accurate indications that an individual was impaired at the time of arrest. Studies have determined that field sobriety tests (FSTs) are about 60 to 70 percent accurate in determining impairment. Many factors can influence an individual’s performance on an FST, including uneven pavement, previous injuries, poor lighting, poor weather conditions, inadequate footwear (e.g. high heels or work boots), stress, fatigue, and heightened anxiety.

There is a consensus in the legal community that devices used in measuring BAC have a margin of error of 0.005 - 0.02%. With this level of inaccuracy, it’s beneficial for a skilled California DUI lawyer to examine the device used in the testing process and to challenge the accuracy of the blood alcohol level. This is especially important in cases where the results are between 0.08% and 0.10%.

In California, there are strict requirements and procedures that law enforcement must comply with at  DUI checkpoints. If a checkpoint is not set up properly, we will fight to suppress any evidence that it produces. Some of the DUI checkpoint requirements include:

-     Maintaining correct and proper supervision of officers overseeing the checkpoint.

-     Ensuring that the officers are following the predetermined strategy as to which cars would be randomly stopped.

-     Advertising of the roadblock must have been properly published.

The presence of certain radio frequencies can produce an interference known as RFI. These frequencies can influence the accuracy of certain machines used in measuring BAC levels, resulting in erroneously high results. The most common devices that may interfere with a BAC reading include, but are not limited to:

-     Patrol cars, ambulances, or fire department vehicles

-     Cellular phones, iPads, or police and public radios

-     Microwaves

-     Fluorescent lighting

To convict you of a DUI, the prosecutor must prove that you were operating a motor vehicle while under the influence of alcohol. This can be difficult to do in many cases, especially if an accident was involved and there were not witnesses. Additionally, if a police officer finds you parked in your car, they cannot automatically prove that you were physically in control of the vehicle. The San Diego DUI Attorney is especially skilled in handling these types of cases. If the District Attorney or City Attorney cannot prove you were driving the vehicle, they cannot charge you with a DUI.

If you can demonstrate or present evidence of police misconduct, your DUI charge may be dismissed.  This is true regardless of whether you were driving with a BAC over 0.08%. The process of professional conduct and procedure a law enforcement officer must adhere to is strict in California. Possible situations of misconduct include the following:

-     Officers were not in compliance with Title 17 procedures.

-     The DUI stop was mishandled and/or reports were not accurate.

-     Courtroom testimony and/or statements were not truthful.

If any of these conditions exist or if law enforcement manipulated statements or evidence, charges against you may be suppressed or even dismissed in some cases.