Simplifying DUI Cases
As straightforward as driving under the influence cases may seem, they are complicated and complicated, but they can be defended in a number of ways. CA Vehicle Code 23152-23229 states that a person is guilty of driving under the influence (DUI) if they are found driving with a blood alcohol content (BAC) of 0.08% or more or if they were driving under the influence of alcohol or drugs Many arrests occur during traffic stops or checkpoints, but in both cases the officer must follow certain procedures to have a valid DUI arrest. These criminal cases are not to be confused with DMV hearings, which is an entirely different topic unto itself.
There are two elements for a DUI as set forth in VC 23152:
1. The person must have been driving.
The officer must see the person driving to establish reasonable suspicion or probable cause that the driver is under the influence. If the car is parked with the keys in the ignition and the driver is intoxicated, the officer may infer that the person was driving under the influence, which could lead to an arrest and subsequent DUI charge.
2. The BAC must be .08% or higher or the driver was under the influence of alcohol or drugs.
Before an officer pulls over a driver, the officer must have objective probable cause gathered through his or her own personal knowledge and sensory perception that a crime is being committed by observing and collecting evidence through the facts and circumstances of the situation. Here, the police officer must observe and make a judgment as to whether the driver was over the allowed BAC limit.
DUI Defenses
A good DUI defense attorney will know what evidence and procedure the prosecutor needs to convict.
1. The officer did not follow the DUI test procedures by failing to calibrate the breathalyzer or follow typical police protocol.
The defense attorney should request the maintenance records of the test equipment and the calibration history that was used on the defendant during the arrest, to see if all the equipment was up to date. If the equipment was not up to date, there is a defense that the equipment used was not working properly.
2. The high BAC level could be attributed to medical conditions, such as GERD (acid reflux) or heartburn, which can trick the breathalyzer into showing a higher BAC level.
If the defendant actually has GERD, acid reflux, a doctor’s note is required to acknowledge the medical condition. According to WedMD, http://www.webmd.com/heartburn-gerd/guide/what-is-acid-reflux-diseaseAcid reflux is a reverse flow of stomach acid back into the throat thus creating “mouth alcohol,” which shows up as a higher BAC level on the breathalyzer.
3. The officer lacked objective probable cause.
As stated above, the police officer must base probable cause on his own sensory knowledge and have personally observed the person driving under the influence for a sufficient period of time to obtain sufficient evidence for a traffic stop. An officer should note all of his observations for probable cause on a police report, and if there are any discrepancies, a good defense attorney will point out the flaw.
4. Field Sobriety Tests (FSTs) are not reliable in determining a person’s alcohol level.
These tests are difficult for a sober person and can be attributed to a person being clumsy or simply lacking balance due to some physical condition. It should be noted that FSTs are one factor in determining whether the driver was under the influence, not the deciding factor.