Proper DUI case evaluation is critical for the defense of charges of driving under the influence. If arrested for DUI, one should hire an attorney to investigate getting the DUI charges dropped. Do not try to use the article below to evaluate your case on your own. Instead, it should be used to assist you when talking to your lawyer and/or a qualified DUI defense attorney.
Realities About Beating DUI Charges
- Have a drink after you have been driving defense to DUI. A typical drinking after driving DUI defense is when someone is involved in an accident or their car breaks down and shortly thereafter they go into a bar or liquor store to acquire and consume alcohol. In many of these situations there will be a receipt to establish that the alcohol purchase occurred after driving. Moreover, a viable defense to DUI occurs if a store clerk or bartender will testify that the accused was not or did not appear to be intoxicated. Some people accused of DUI have a drink as soon as they get home but this defense is hard to win as it is based largely on the credibility of the accused with no corroborating evidence.
- “I was not Driving” defense. In many cases persons are convicted of DUI even though the police did not see them driving. There is no legal requirement that a police officer witness a person driving in order to be convicted of DUI. Many times on officer arrives on the scene of an accident where the accused is already out of his vehicle, which doesn’t preclude the accused from being arrested for DUI. The best “I was not Driving” defense occurs when a third party witness can corroborate that a person accused of DUI was not driving.
- “Rising Blood Alcohol Defense”. Perhaps the most well known and commonly used defense is the rising blood alcohol or I was drinking shortly before driving defense. Alcohol takes time absorb into a person’s blood stream. As such, a person may be sober or under 0.08 blood alcohol level while driving but under the influence over 0.08 at the time the are tested after arrest. The most viable blood alcohol defenses occur when an accused is stopped or found close to their destination so it can be shown that when they arrived at their destination they were not under the influence or driving with a blood alcohol level of .08 or higher. In many instances in California a person is given two breath tests, one directly after being stopped called a PAS (preliminary alcohol screening) test and a breathalyzer test at the station. A rising blood alcohol defense can be won many times when the second breath test read out is higher than the first PAS test.
- Failure to follow procedures under Title 17 for DUI breath tests. Under California Code of Regulations title 17, police officers are required to observe a defendant for at least 15 minutes before giving a breath test at a police station. If an officer fails to follow the procedures in Title 17, an accused can use this as part of their successful defense to a DUI charge. Other errors, including failure to calibrate or maintain equipment in compliance with the California Code of Regulations, can be used as a defense to a DUI charge.
- Acid Reflux & GERD DUI Defenses. It is difficult but not impossible to win a DUI case using a “mouth alcohol” defense as a result of acid reflux or heartburn. This is because the officers wait at least 15 minutes after an arrest to administer a breath test and a misreading will usually not occur after 15 minutes since such a condition does not dissipate after minutes as it is part of a person’s internal bodily functions. At a minimum, a person will need to show that they are under a doctor’s care or receiving treatment to have a viable defense
- Fourth Amendment Violation. In order for a police officer to stop a vehicle, they must have reasonable suspicion to stop you as required by the 4th Amendment to the United States Constitution. Although, speeding, changing lanes and weaving are in and of itself not proof of driving under the influence, it provides enough reasonable suspicion for an officer to stop a defendant as it is evidence of a traffic violation. Rules regarding DUI checkpoints can be challenged and/or subject to Constitutional restrictions. For a police officer to arrest a person for DUI, there needs to be probable cause that a person is driving under the influence. Such probable cause usually occurs from the officers observations of a defendant, including driving, speech impairment, odor of alcohol on a person’s breath and how a person performs on a Field Sobriety Test (FST). Determining likelihood of a successful defense based on an improper stop and arrest requires an experienced DUI lawyer. An experienced DUI lawyer may file a motion to suppress if a stop and/or arrest lacks reasonable suspicion and probable cause which, if successful, will lead to dismissal of charges.
- Miscellaneous DUI Defenses. There have been many special DUI defenses related to special factual scenarios tried that have been successful. However, the majority of successful DUI defenses will fall into one of the categories discussed above. If a lawyer tells you have a good case based on facts like you’re a good person, recently had braces, were on a special diet or other fact that sounds too good to be true, you should get a second opinion.
Falsities About Beating DUI Charges (Miranda and Refusal)
There are many myths about beating DUI charges that are simply not true or very rarely work. Many people believe that if they were not read their Miranda rights that a DUI case, and any other criminal case for that matter, will be dismissed. This is simply not the case, as Miranda applies only after being arrested (usually placed in cuffs and placed in the police vehicle) and even if Miranda applies it only prevents the prosecution from using any statement a defendant may have made that is incriminating but does not call for a case to be dismissed.
In addition, many people believe that it is the best strategy to refuse to take a test which will lead to a successful defense. This strategy almost never works as a person can still be convicted of driving under the influence without a test (see California Vehicle Code section 23152 (a)). Moreover, if a person refuse to take a test they automatically lose their license for a year in California with no opportunity for a restricted license. Also, the penalties after a conviction for DUI with a refusal are more severe.