San Diego Drunk Driving Lawyer Explains Typical Defenses to DUI
It may seem like the cards are stacked against you when you are charged with a DUI. However, there are many defenses that can and do work to successfully defend DUI charges. The following is a short summary of just a snippet of these defenses. Remember, every case is different and this is not an exhaustive list.
If you or a loved one has been charged with driving under the influence and would like more information please contact one of the Expert San Diego DUI Attorneys at The Hullinger Firm for more information and whether one of the defenses applies to your case. We offer a confidential 1 hour consultation for anyone charged with drunk driving in San Diego County. Call 619-452-2539 to schedule an appointment.
Defendant Was Pulled Over and/or Arrested Illegally
Under the Fourth Amendment of the United States Constitution, citizens are protected from unreasonable searches and seizures by the government. This means a police officer must have “reasonable suspicion” that a law has been violated before he or she can stop a driver. It also means that police must have “probable cause” to believe a law has been violated before they can arrest someone for DUI. We will hear your side of the story, review all the evidence, and pursue this defense to the fullest if the police did not perform his or her job correctly.
Defendant Was Not Driving
Many times people are arrested after the vehicle has come to rest. This can happen after an accident or when the driver has already parked the car. Often times the government does not have sufficient evidence to prove that the defendant was driving, but they file the case anyway. If this has happened to you, you may have a great defense to your DUI charge. Remember, you have a Fifth Amendment right to remain silent. Do not make any admissions to the police or prosecutors during your case that would hurt this defense. Call us immediately for advice on how to pursue this defense.
Defendant Had a Rising BAC
The government must prove that the defendant’s BAC was above 08 at the time of driving. Often times, when alcohol was consumed close to the time of driving, it has not fully absorbed into the bloodstream. If a person has a shot of Tequila, their BAC is not immediately as high as its going to get. Alcohol needs time to absorb into the system. This absorption time can take anywhere from 20 minutes to 2 hours. If the driver is arrested for DUI and takes a chemical test an hour later, we can argue that the person had a rising BAC at the time of driving. In other words, the alcohol had not fully absorbed into their system at the time of driving and they are not guilty of DUI.
Prosecutor Cannot Prove the Elements of the Offense “Beyond a Reasonable Doubt”
On every case, even non-DUI cases, we attack the elements of the offense. It is the prosecution’s burden to prove each element beyond a reasonable doubt. Should they not do that at trial, we will vehemently argue to the jury that the case was not proven.
Duress and/or Necessity
Duress is defied as follows. The defendant is not guilty of DUI if he or she acted under duress. The defendant acted under duress if, because of threat or menace, he or she believed that his or her or someone else’s life would be in immediate danger if he or she refused a demand or request to commit the crime. The demand or request may have been express or implied.
Necessity is defined as follows. The defendant is not guilty of DUI if he or she acted because of legal necessity. In order to establish this defense, the defendant must prove that
- He or she acted in an emergency to prevent a significant bodily harm or evil to himself, herself, or someone else;
- He or she had no adequate legal alternative;
- The defendant’s acts did not create a greater danger than the one avoided;
- When the defendant acted, he or she actually believed that the act was necessary to prevent the threatened harm or evil;
- A reasonable person would also have believed that the act was necessary under the circumstances; and
- The defendant did not substantially contribute to the emergency.
We used this defense in a case where the client told us he was forced to drive at gunpoint. We subpoenaed the video tapes of the gas station where it occurred. When we received the evidence, defendant’s story was confirmed by the video tape and the prosecution dismissed the case before the trial.
Even though these two defenses are related, they are two separate defenses. We may be able to apply one, the other, or both at the same time.
Prosecutor’s Chemical Evidence is Insufficient
Often times, the machines used in these chemical tests are not calibrated correctly or have other problems that sheds doubt on whether they are in proper working order. We will gather the facts and evidence to attack the validity of the chemical tests at trial.
Defendant Satisfactorily Performed the Field Sobriety Tests
Often times, the defendant has a different story that the police officer. We can use our cross-examination skills on the police officer to show that the defendant’s performance on the field sobriety tests was actually not indicative of being intoxicated. While administering field sobriety tests, police officers are looking for indicators of intoxication. In their police reports they often report the indicators they observe, but fail to state all the indicators that are not observed. For example, a police officer may state that on the “Walk and Turn” test, the defendant missed step 8. That same officer fails to mention that the defendant satisfactorily hit steps 1, 2, 3, 4, 5, 6, 7, 9, and 10. Our skills as oral advocates will highlight all circumstances that support a “Not Guilty” verdict.
Arresting Officer did not Administer the Field Sobriety Tests Correctly
Police officers have to administer the Field Sobriety Tests (FSTs) correctly or they are in serious doubt as to whether they show intoxication. WE HAVE READ THE POLICE OFFICER’S TRAINING MANUALS ON FSTS. This means we are working with the same set of instructions they are. We can use this when cross-examining the officer to point out all the mistakes they made while administering the FSTs. This is a great way to argue that the jury should return a verdict of “Not Guilty.”
The Chemical Test Was Not Administered in Compliance with Title 17 of the California Code of Regulations
Chemical tests in DUI cases must comply with Title 17 of the California Code of Regulations. The reason Title 17 is so important is because failure to comply with its terms could result in inaccurately high BAC test results.
Some common Title 17 violations for a Blood Tests are
- Having an unauthorized technician perform the blood draw,
- Using an alcohol-based cleaning agent to sterilize the draw site,
- Having an insufficient amount of anticoagulant or preservative in the blood vial,
- Using a vial with expired anticoagulant or preservative,
- Not properly mixing the blood sample with the anticoagulant and preservative, and/or
- Not properly storing the blood sample.
Some common Title 17 violations for Breath Tests are
- The breath sample did not come from deep lung air (aka “alveolar air)
- The administrator of the test did not make a 15 minute observation of the defendant before the administration of the test.
- During the 15 minutes prior to the test, the defendant ate, drank, smoked, vomited, or regurgitated,
- The breath testing instrument was not calibrated every ten days or 150 uses (whichever occurs first)
- The breath testing machine wasn’t properly calibrated, or
- The operator wasn’t properly trained on how to operate the specific breath testing instrument.
If you are charged with a Traffic Misdemeanor or DUI, hire San Diego’s best traffic law firm. We can help you get a great result on your case. To learn more about our procedures and how we can represent you, call us at 619-452-2539 or email email@example.com.
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Scott Hullinger, Esq.
Criminal and Civil Attorney