As a DUI attorney in Los Angeles, I know that most law abiding citizens with no criminal record don’t ever expect to face criminal charges or jail time until they are surprising stopped for a DUI (driving under the influence of alcohol or drugs.) A majority of DUI stops or arrests in California including Los Angeles, Orange, Riverside or Ventura county involve persons with no criminal background or experience dealing with the criminal justice system. Perhaps the first thing to do after being arrested and often times bailed out of jail on a DUI arrest, is to consult an experienced criminal defense attorney who can represent your interest both in the criminal case in any administrative hearings involving the DMV. Often times, an seasoned criminal defense lawyer can get DUI charges dismissed or reduced to a lesser charge by challenging the stop, arrest and tests relied on to prosecute a DUI case. As set forth below, challenging a breath test can be done in different ways and can often times lead to the successful defense of DUI charges.
1. Defective Breath Tests
California Vehicle Code section 23152(b) outlaws driving a motor vehicle with a blood alcohol level of 0.08 or higher at the time of driving. In every case involving a driver who submits to a breath test, they are given the test often times at least one hour after the stop either at a police station or sometimes during a field sobriety check with a mobile breath unit. Such test should not be confused with a Preliminary Alcohol Screening test which is another breath test often times given at the scene of the stop to determine if there is cause to arrest for a DUI or to require a further test. The results of a PAS test are most times not admissible to show prove the ultimate question of whether a person was driving with a blood alcohol level of .08 or higher.
It should be first noted that if a Breathalyzer test is given 3 hours after the time of driving, it can be challenged as unreliable as Vehicle Code section 23152(b) only gives a rebuttable presumption of that a test is valid if taken within 3 hours of driving. Often times, an experienced DUI lawyer can challenge a test based on the arresting officer’s failure to give a test within the 3 hour period.
In many instances, a defense lawyer will retain a toxicologist to review the maintenance and calibration records of the machine used to take an arrestees blood alcohol level. In arguing that a machine is not properly maintained for accuracy, an attorney will rely on California Code of Regulations 17 §1221.4(a)(5) which provides that breath testing machines and/or instruments have to be checked for accuracy using a standard between 0.10g% and 0.30g%. The checks must be performed by a qualified operator as set forth in Title 17§1221.4(a)(2)(A)(1). Moreover, the accuracy checks must be performed within every 10 days or before the testing of 150 persons, whichever occurs first. The criminal laboratory must maintain the record and the identity of the person performing the accuracy check must be noted in the records. As one can see, there are many technical issues for an experienced DUI lawyer to analyze in order to properly defend a person accused of driving under the influence.
2. Rising Blood Alcohol
Perhaps one of the most common defenses to a DUI in California is challenging a breath test on the grounds that at the time of driving a person’s blood alcohol was not .08 or higher. A qualified DUI lawyer will almost certainly work with a certified California Toxicologist to analyze many factors including a driver’s drinking patterns, time of driving and time a breath test was given to determine if a person’s blood alcohol was rising and had not yet reached a blood alcohol level of .08 or higher at the time they were driving.
Many defense attorneys in DUI cases use the “Widmark’s Formula” to calculate their client’s blood alcohol level (BAC) based on known factors at the time of an arrest including a person’s weight, gender and the amount of alcohol a person consumed and when the consumed such alcohol. A Defense attorney will most always use an expert toxicologist at trial to prove the “Widmark’s Formula” and often times can obtain a dismissal of a DUI charge.
The need for retention of legal counsel following a DUI arrest:
An arrest for a DUI can be a traumatic event in a person’s life and the consequences can be severe including jail time, license suspension, significant fines. It is important to remember that when arrested for a DUI, there are numerous legal issues and rules available to a person charged with a DUI that an experienced criminal defense lawyer can rely on in successfully defending a DUI case. As such, the first step is to contact a DUI lawyer immediately after an arrest.