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DUI Court Case

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I’ve been arrested on suspicion of DUI. What happens to my driver’s license?

The Department of Motor Vehicles will initiate action to suspend your California driver’s license for a minimum of 30 days. If you refused a chemical test under the “implied consent” law in California, the DMV may suspend your license for one year.

If you were pulled over and arrested on suspicion of DUI, the police most probably have already confiscated your license and given you a pink piece of paper. It is important for you to know the significance of this pink piece of paper and what can happen if you do not follow through with the steps that must be taken to recover your driver’s license. This pink piece of paper is only a temporary 30-day driver’s license.

The loss of your driving privilege in California is devastating.

It affects your transportation to and from work, school and child care and your mobility in general. If you received this pink slip, it is really in your best interests to contact our office as soon as possible since you have only 10 days to request the DMV hearing where recovery of your driver’s license may be possible.

At the DMV hearing, the hearing officer, more often than not, will side with the arresting officer regarding the legitimacy of the conditions surrounding the arrest and you will probably not get your license back. Your best chance to recover your driver’s license at the hearing is to have an experienced DUI attorney represent you. My many years of defending people accused of driving under the influence (DUI) of alcohol or drugs and my extensive experience and knowledge of this crime give me the tools I need to successfully defend you against these DUI charges.

Some of the defenses I might use in your favor are:

  • Faulty or improper police arrest and investigation
  • Problems with the breath testing equipment
  • Incorrect reading of the test results

I am under the age of 21. Is there a difference in the law for people under 21 years of age and for those older than 21 years of age?

The short answer is yes!

The California Vehicle Code allows for absolutely no slack or leeway in the blood alcohol content of an underage driver. While a person 21 or over will not violate DUI laws (that is, California Vehicle Section 23152(b)) if he or she drives with a blood alcohol content of .07 or lower, a minor (20 years of age or under) is not allowed to have any measurable amount of alcohol in his or her blood at all, not even .01% under California Vehicle Section 23136.

If the underage driver is found guilty of violating this vehicle code section, he or she faces an automatic one-year driver’s license suspension. If the minor does not yet have a California driver’s license, the DMV will issue a one-year delay of the minor’s eligibility to lawfully drive.

If the minor refuses to submit to a chemical test, he or she faces a suspension of the driver’s license from one to three years. The length of the suspension is based on whether the minor has had any prior convictions under this California Zero Tolerance Law.

Be mindful that this vehicle code section is enforced civilly, not criminally. In other words, there is technically no jail time for this offense, but the minor’s California driving privilege may be severely impacted.

In addition, the prosecutor will charge the minor under California Vehicle Code sections 23152(a): driving while under the influence of alcohol and 23152(b): driving with a blood alcohol content of .08 or higher. A first-offense conviction for DUI can result in significant fines, lengthy probation, a lengthy alcohol program, license suspension and more.

An additional charge that you or your loved one may face as a result of prosecution for underage DUI includes California Vehicle Code 23140 VC, commonly known as “DUI under 21 with a BAC of .05%–.07%.” Although this particular offense is only an infraction, it is yet another charge with which you will have to contend.

If you or a loved one has been charged with the above offenses pursuant to a “DUI under 21” prosecution, you or your loved one may be facing the loss of your California driver’s license for one year. There are also other costly and burdensome consequences. My extensive experience and knowledge in this field give me the tools I’ll use to successfully defend you against underage DUI charges.

What is the rising blood alcohol defense?

Your blood alcohol content may not have been as high (at the time of your driving) as the prosecutor is alleging. Based on the circumstances of your case, I may be able to successfully argue that, at the time you were driving, your blood alcohol was below the legal limit and that the testing that occurred afterward shows your blood alcohol level as it was after you were driving.

If your preliminary alcohol screening test shows, for example, a level of .07/.08, and then a later chemical test shows .09/.10, we may be able to convince the prosecutor or a jury that your blood alcohol was actually below the legal limit at the time you were driving, but at the time you were tested, your body was still absorbing alcohol, thereby showing an artificially high reading.

In other words, your blood alcohol content (BAC) may have been rising at the time of testing (because alcohol ingestion was not complete) and, therefore, your BAC level was actually lower at the time you were driving than it showed on the test.

Researchers have found that alcohol absorption can continue for an average of 50 minutes after a DUI suspect has stopped drinking. Tests (taken with Intoxilyzer models 4011A, 4011AS and 5000) have consistently estimated blood alcohol levels at excessively high levels during this average 50-minute time period (when compared with analyzed blood samples). My extensive experience and knowledge give me the tools I need to successfully challenge DUI charges in California.

Can you challenge chemical breath test results?

The short answer is yes!

An experienced DUI attorney can attack chemical test results in numerous ways. Remember, the BAC DataMaster and the Intoximeter EC/IR, the primary evidentiary breath-analyzing devices used in the greater Los Angeles area, are just machines. As machines, breath alcohol testing devices have flaws, and their results should always be suspect. Your car can break down, your computer hard drive can crash and, likewise, breath alcohol testing equipment can be faulty.

Malfunctions and defects relating to the equipment used to gauge your blood alcohol concentration can generate readings that are both inaccurate and unfavorable. Physical and medical factors and conditions can also produce falsely high results. These include conditions such as hypoglycemia, gastroesophageal problems (such as gastrointestinal reflux disorder, or GERD), the use of amphetamines, spiking blood sugar levels caused by diabetes, the production of isopropyl alcohol in your blood from eating a diet low on carbohydrates, inordinately slow or rapid rate of metabolism, body fat, and a host of other conditions and physiological phenomena.

I will never simply assume that breath results are accurate. I will thoroughly interview you regarding your medical history and lifestyle to determine whether any foreign substance or pre-existing medical condition may have affected your breath alcohol test results.

In a breath test, all accuracy records, maintenance logs and usage logs for the machine in question should be carefully evaluated by an experienced professional to determine whether the breath test equipment was in compliance with Title 17 of the Administrative Code. The breath testing device checklist and all materials referenced by the checklist, including the certification and qualifications of the operator, must be carefully scrutinized. I will obtain and examine all of these records while preparing a defense for your case.

What if I wasn’t driving when I was pulled over?

If you think you were not driving when you were pulled over — well, this is a more complicated situation than it appears to be. The law is fairly specific about what it means “to be driving a vehicle.” Of course, you can’t be charged with DUI if you weren’t driving, but proving that you were not actually driving the vehicle (under the legal meaning of driving in California) gets a little bit complicated.

First, under California law, there is the legal definition of what it means to be “driving” a vehicle. In California, you are considered to be driving when you consciously do something that allows the car to move. If you merely decide to put the car in neutral gear for some reason and the car only moves a few inches, this is considered to be driving because you have made a conscious decision to do something that caused the car to move.

However, if you do NOT do something consciously to make the car move and it does move and accidentally damages someone’s car or property, then you would not be considered to have been driving under the law in California. Perhaps you were asleep in the car at the time and by accident, you moved the gear shift while you were asleep. Then, because you did not consciously do something to enable the car to move, you would not be considered to have been driving.

Even if you are not actually driving, but while you are just sitting in the car, it moves even a few inches after you have put it in neutral, that could be considered “driving.” It does not even have to move a great distance. That is because you had made the conscious decision to put the car into neutral gear.

To be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually were driving a motor vehicle. But what things constitute driving?

In California, a driver is defined as “a person who drives or is in actual physical control of a vehicle.”

In Mercer v. Department of Motor Vehicles, the California Supreme Court stated:

“In everyday usage, the phrase ‘to drive a vehicle’ is understood as requiring evidence of volitional movement of a vehicle. Any doubt about our understanding of the word ‘drive’ is dispelled by decades of case law holding that the word ‘drive,’ when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle.” This holding, however, was limited to the context of DMV license suspensions for refusals.

However, since the court has not yet set a definite standard on this issue regarding driving under the influence, it does seem that many of the courts in California are applying the standard set in Mercer v. Department of Motor Vehicles to driving under the influence charges. It seems that the standard has become volitional movement of a vehicle, even if only very slight movement, which might be proven by circumstantial evidence.

You are also considered to be driving under California law even if you, the passenger, are only steering the vehicle while the person seated in the driver’s seat has control of the accelerator and the brakes.

This situation might occur if the driver had to take their hands off the steering wheel and eyes off the road to do something else while you, the passenger, took control of the steering wheel. In the unfortunate event that you had been drinking over the legal limit at the time, misjudged the steering and inadvertently hit another vehicle, you, the person steering the vehicle, would be considered as “driving” under the law in California. Therefore, you are the driver because you are the person who had control of the steering.

Our extensive experience and knowledge give us the tools necessary to successfully defend you against these DUI charges.

Can I be charged with DUI even if the police didn’t actually see me driving?

To be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually were driving a motor vehicle. So the question is: What things constitute driving?

Most of the time, this is not an issue because the police usually observe a DUI suspect actually driving the vehicle. On occasion, however, the arresting officer does not actually see the person “driving.” Instead, the officer has probably found the DUI suspect asleep on the front seat of a car that is lawfully parked, keys in the ignition, with the transmission set to “neutral” and the headlights and wipers on.

The California Supreme Court drew a contrast between the term “drive,” normally understood to require there have been “volitional movement of the vehicle,” and the term “driver,” which CVC §305 defines as someone who is “either driving or in actual physical control.”

The court said that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Additionally, the court noted that because “driver” is defined as a person who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Mercer v. DMV (1991) 53 Cal.3d 753.

Interpreting the law strictly instead of broadly, the court held that being in mere actual physical control of a vehicle is not enough to constitute “driving.” Therefore, for purposes of the California drunk driving statutes, to be driving actually requires that the person exercise volitional movement of the vehicle.

Whether you were actually driving and whether there was direct proof of your driving are two separate issues. The prosecutor can establish that you were driving “circumstantially,” in other words, by inference from whether you were observed exiting the driver’s side of your vehicle, the warmth of your engine and other telltale signs.

On the other hand, merely being found behind the wheel of a vehicle is not surefire proof that you were driving. It could be shown that you had merely pulled over to rest, your vehicle was turned off, you had been sleeping or other facts indicating that you were in your car but had not been exercising “volitional movement of the vehicle.” Based on the circumstances of your stop, as a Torrance, South Bay and Los Angeles DUI lawyer, I may be able to advance this argument and have your case dismissed before or at trial. My extensive experience and knowledge give me the tools I need to successfully defend you against these DUI charges.

If I’ve been pulled over on suspicion of DUI, can I choose between taking a breath test or a blood test?

Yes. If only one is available or working correctly at the time, however, then you must take that one. It could happen that the breath-testing equipment is not working properly. In that case, you would have to take the blood test.

Because the urine test is less accurate than either the blood or breath test, you can only choose the urine test in the rare situation that both the blood and breath tests are not available or working properly.

Which test am I better off taking – the blood test or the breath test?

Take the breath test if you only had one drink, say a beer or small glass of wine, because your blood alcohol level will probably be less than .05% — and because the police officer will be able to see that result right away, he or she will see that you really are sober and will probably just let you go. It is unlikely that a prosecutor would try your case with such a low blood alcohol level.

Do not take the breath test if your last drink was less than one hour before being tested as your body is still absorbing alcohol. While your body is still absorbing the alcohol, the test will detect an exceptionally high level so you are better off taking the blood test.

Certain medical conditions excuse you from taking a blood test. If, for example, you have a heart condition and are taking medications such as an anticoagulant, then you do not have to take a blood test. If you have hemophilia, you are also excused from taking a blood test under California law.

Can I choose to take a urine test instead of a breath or blood test?

Under California law, you can no longer choose to take a urine test. Your only choices are the blood or breath test. The only times you can have the urine test are when the officer does not have a breath-testing device available or cannot contact a trained technician to take your blood.

Am I allowed to get a copy of the breath or blood test results?

Yes. You or your attorney can contact the district attorney for a copy if the results are not stated in the complaint you received at your arraignment.

Because under the law you are entitled to “full information concerning the test,” then you are also entitled to an explanation, in writing, outlining how the analysis was done. You or your criminal defense attorney should send a letter as soon as possible, requesting this information as well as a portion of your preserved blood sample (if a blood test was taken), to be tested by an independent laboratory.

Is it possible to fight a DUI charge?

Your lawyer can use several defenses to fight the DUI charges such as the fact that your erratic driving might not have been alcohol-related. You might have been lost or may have been suddenly distracted by something. What might have appeared to the police officer to have been intoxication on your part may have been caused by the fact that you were tired, sick, blinded by the bright sun or suffering from allergies. All of these conditions might have contributed to what the officer observed as your having been under the influence of alcohol.

Your defense attorney might also show the court that the field sobriety tests are not always accurate in measuring a person’s impairment. You probably did not perform very well on the field sobriety test, so your lawyer might ask the officer to testify regarding the many ways in which you did perform well. In that case, the number of things you did correctly will be much higher than the things you did not do correctly.

Your lawyer will also question the accuracy of the tests you were given, such as the horizontal gaze nystagmus test, the finger to nose and one-leg stand test.

Nystagmus is a condition in which the eyes make uncontrolled and repetitive movements. These involuntary movements can be from side to side, up and down or in a circular manner. This can result in impaired vision and depth perception. It can also affect your coordination and balance.

How can I fight VC23152(a) DUI charges?

Your lawyer can also question the way these tests were given to you, arguing that the procedures the police followed were improper and challenging every aspect of the handling of your case.

Your lawyer will question whether the officer had reasonable suspicion to stop you and probable cause to arrest you. Any violations of California Title 17 can have an effect on the result of your DUI case. Your lawyer will also investigate any possible acts of police misconduct or shoddy police work in maintaining accurate breath and blood test equipment.

The purpose of California Title 17 is to ensure that DUI blood or breath tests are as accurate as possible. A violation of the proper procedures that were established in Title 17 can result in inaccurate results. Thus, your lawyer might argue that there were Title 17 violations in your case.

What is the horizontal gaze nystagmus test?

The horizontal gaze nystagmus test is one of three field sobriety tests developed by the National Highway Traffic Safety Administration. This test has proven, through research, to be the most accurate of the three field sobriety tests. It has been shown to be 77% accurate in detecting BAC levels of .10% or higher.

Nystagmus is the technical name for the condition that produces an involuntary jerking of the eyeball. Horizontal gaze nystagmus is when there is a horizontal jerking motion of the eye when the person looks from side to side. Both nystagmus and horizontal gaze nystagmus can be caused by a variety of things, including alcohol consumption or the use of any other drugs that depress the central nervous system. These include inhalants or phencyclidine (angel dust, which has hallucinogenic effects). These types of drugs minimize the brain’s ability to control the eye muscles properly.

When alcohol is present in the body, the result can be seen in the jerking or bouncing movements of the eye. The higher the BAC, the more noticeable the nystagmus. In the horizontal gaze nystagmus test, a police officer will place an object such as a pen or a finger about 12 inches from the face of the driver. The officer will then move the object from side to side while watching the driver’s eye movements. The officer estimates the angle at which the jerking movements of the eye begin.

When jerking movements in the eyes begin before the driver’s gaze reaches a 45-degree angle, it is an indication of a possible BAC over .05%. The officer will also note the stability of the eye when the gaze is as far to the side as it can possibly move.

Although the horizontal gaze nystagmus test has been shown to be extremely accurate and is widely used by the police, your attorney can still try to challenge it in court. He or she can argue that the police officer who gave you the test was not trained medically and lacked the ability to assess the angle at which nystagmus occurs.

Are blood test results always accurate?

No. That is because the blood sample taken from the individual is not always cared for and/or not always handled correctly or in a timely manner. It is not unusual for a blood sample to be left untested for several days. Many laboratories cannot always test blood samples immediately due to high volume. There also might have been some unforeseen delay in actually getting the sample to the lab.

A blood sample that is sitting around in an untested state will decompose because of the action of its enzymes and bacteria. As it decomposes, it creates a certain amount of alcohol so that even in a blood sample that originally did not contain any alcohol, it will give a reading of some percentage of alcohol depending on how long the sample sat untested.

To prevent this decomposition and the resultant creation of alcohol, blood specimens are generally refrigerated. Unfortunately, refrigeration only slows the creation of alcohol in the blood specimen; it does not completely stop it. To stop it, preservatives should be added, but that doesn’t always happen.

Does it matter if my blood was drawn from a vein or an artery?

Generally, blood samples are taken from a vein. Interestingly, the level of alcohol in a blood sample drawn from a vein is different from the alcohol content of blood drawn from an artery. The important point to be noted here is that arterial blood that contains alcohol goes to the individual’s brain and thus causes the intoxication. For this reason, testing of a blood sample taken from a vein can lead to an inaccurate conclusion, according to scientists who measured levels of blood alcohol in the brain from samples taken from arteries and from veins of people who were known to have been drinking.

They found the content of alcohol in the blood from an artery was greater than that from blood taken from a vein while the alcohol was being absorbed by the body. They also observed that the samples taken from veins had a higher BAC than those taken from an artery during the time the alcohol was being eliminated.

After much research and testing, scientists have concluded that blood samples taken from a vein do not correctly show the quantity of alcohol that is going into the brain and is therefore not a valid barometer of the subject’s intoxication.

Does it matter if my blood was tested at the time of the DUI stop or later at the police station?

In California, it is not a crime to be under the influence or to have a BAC over .08% while you are in a police station having your breath tested. It is a crime only when you have a BAC of .08% when you are driving. Therefore, the results that come from a blood or breath test taken at the police station really depend on the ability of a prosecution crime laboratory expert to determine what he or she believes to have been the BAC of the individual back at the time of driving. It is really only the expert’s best guess to figure out what the BAC had most likely been about an hour before the testing.

This scientific, mathematic method toxicologists use to try to figure out what a person’s BAC had been at an earlier point in time is called retrograde extrapolation. This method is frequently used to figure out if a person might have had a BAC of at least .08 while driving, based upon the results at the later time of testing.

In many Los Angeles County DUI cases, it has been shown that retrograde extrapolation has definite flaws. An experienced criminal defense attorney will point this out to a jury if a case goes to trial. He or she can then point out that it was only a guess that the alcohol absorption process was complete and that the elimination of the alcohol is always at a given predictable rate. The rate of alcohol absorption can differ for many reasons such as the person’s body temperature, how much food the person has eaten, the type of food the individual had eaten, a disease the individual may have, and the gender and weight of the person.

Your attorney can also show that the expert does not really have enough information available to make a determination, only assumptions. The expert is assuming that the alcohol was completely absorbed at the time of the test and that the defendant eliminated the alcohol from their system at what is considered to be an average rate. In addition, the expert is also assuming that the chemical test was properly done. As an individual is drinking alcohol, the level of alcohol in the blood rises while the alcohol is being absorbed into the person’s system. As the alcohol is being metabolized and eliminated by the body, the blood alcohol level then falls.

Research has shown that blood alcohol levels do not rise and fall predictably. It is also necessary to know that all of the alcohol consumed by the individual has been completely absorbed and is currently falling. Alcohol absorption can take 15 minutes to three hours after the last drink. The prosecution expert making this retrograde extrapolation should state all of the assumptions and best guesses he or she made when coming up with these conclusions.

How does alcohol travel through the body and how does it affect the different parts of the body?

Before the food you have eaten can penetrate into your body’s cells, it must first be digested by the body. Alcohol, however, goes directly through the membranes of your body right into your bloodstream and then to nearly every organ.

When alcohol is ingested, it first goes through the stomach and into your blood. Some of it will be absorbed by the lining of your stomach and continue into your bloodstream. Stronger alcoholic drinks will be absorbed faster than drinks that are not as strong. Various carbonated and fizzy drinks will speed up the absorption process due to the carbon dioxide, which accelerates its entry into the small intestine.

The time that you have eaten is also a factor because the less food eaten, the faster the alcohol gets into your bloodstream. For this reason, it’s never a good idea to drink on an empty stomach. Then, about two-thirds of the alcohol continues onto the next part of its journey from your stomach through your bloodstream, into the small intestine.

Your BAC determines the effects on your brain. Alcohol is a depressant and does different things in different parts of your brain.

When your cerebral cortex, the part of the brain responsible for processing thinking, is depressed from alcohol, many people become less inhibited, much chattier and overly confident. Judgment becomes affected and thinking starts to become fuzzy. In addition, people can have difficulty seeing, hearing and even feeling pain. All of this is a result of the alcohol negatively impacting your brain’s ability to process information correctly.

Alcohol also affects the part of the brain that is in charge of memory and emotions. That is why you may become lost or not remember events that occurred while or after you were drinking. The part of your brain that controls your muscles is also affected, so you start to become uncoordinated and you experience loss of balance.

Your heart is affected because alcohol makes your heart beat faster. This is because it makes your blood vessels relax so that more blood is flowing through your system. While this is happening, your blood pressure begins to lower and for all of the organs to receive all of the blood they require, your heart starts beating faster to accomplish this.

Your kidneys are also affected by drinking alcohol. Their function is to filter waste products from your blood and out of your body while healthy elements needed by your body are kept in the blood. Your kidneys also are responsible for maintaining a normal and constant level of water in your body. However, alcohol will increase the amount of urine produced by the body and when someone drinks too much alcohol, their body expels more water than it takes in. When this happens, a person becomes dehydrated with a dry throat, headache, nausea and fatigue.

When the alcohol in your blood gets to your lungs, some of it will evaporate into the little air sacs in your lungs and be pushed out of your body as you exhale each breath. It is this exhaled alcohol from your lungs that gives a person alcohol breath.

Drinking too much alcohol gives a person a flushed and sweaty appearance because it increases the amount of blood flowing to the skin. Tiny bits of alcohol can seep out through the pores of your skin so that your perspiration also smells from alcohol.

The liver has an important function in metabolizing your body’s alcohol. Approximately 90% of the alcohol that you take in will leave your body because of the work of your liver. It breaks the alcohol down into a chemical that is recognized by your body as toxic through several stages and finally into carbon dioxide and water, which your body can then expel.

The liver can only metabolize the amount of alcohol in one drink each hour. How quickly alcohol in your body is broken down depends on your weight and gender. For this reason, some people can still have alcohol moving through their blood for up to three hours after taking one drink. If you drink more alcohol than your liver can comfortably handle, your blood alcohol level keeps rising, making you feel sick, making you slur your words and possibly making you pass out. The small amount of alcohol that is not processed by your liver, about 10 percent of it, will simply go through your body and be excreted through your sweat, your breath and your urine.

That terrible hangover that one experiences the morning after is because more alcohol had been consumed than the body could handle and much fluid, minerals and vitamins were lost.